Attrition in sexual assault cases is a major cause for concern. Research shows that sexual violence, and violence against women, is vastly under-reported. Yet, of those crimes that are reported, successful prosecution rates remain very low. And this is despite substantial legal, procedural and policy reforms designed to make the system more accessible to victims of sexual violence and better resourced to effectively respond to crimes of sexual violence (for more on this see ALRC research on attrition in sexual offence cases).
What’s going on here? Why are these reforms not seeing the intended results? Recent research conducted by Professor Liz Kelly and brought to attention in Australia by the Australian Centre for the Study of Sexual Assault highlights a key factor that continues to hijack chances for, not only successful prosecution in sexual violence offences, but equally for an experience of the legal system that is not newly traumatising for victims. Sexual violence is a gendered crime – a crime committed overwhelmingly by men. Sexual violence is also a crime accompanied by a ‘culture of skepticism’, as Professor Kelly calls it. Dating from at least the 17th century, with the influential judgments of Matthew Hale, the judicial response to allegations of rape has been preoccupied mostly with protecting the reputations of men and insuring them against the possibility of false accusation.
As such, rape has been considered to be a crime that is tarred by an intractable question of he-said vs. she-said. A fear of the supposed power of women to ruin a man’s reputation, an assumption that false allegations must be rife and an expectation that rape must be an impossible crime to prove. Women, who judicially have primarily been seen as solely the property of a man (be it father or husband), have long been considered doubtful as witnesses. The word of a woman has not been seen to be credible testimony. All of which adds up to a powerful ‘culture of skepticism’ heavily loaded against women, and in favour of men.
What’s interesting in Professor Liz Kelly’s research is the prevalence of assumptions of false accusations is rampant amongst both the police and prosecutors and yet their own statistics show very low rates of false accusations. So, why does the belief persist, even in the face of all the evidence to the contrary? Why, in the 21st century, do we still find it so hard to believe the word of a woman?
What her evidence shows is how readily stereotypes speak louder than real witnesses. How assumptions and expectations predetermine how a victim will be heard and how their case will be responded to. That the weight of this ‘culture of skepticism’, this fear for the reputations of men (and not for the livelihoods of victims) taints our ability, as a society, to hear the testimony of victims. Everything they say, everything they did or do, everything about them, will be held up to the stereotypes, the prejudgments, the assumptions to see whether it conforms or not. And so what we find, is that whilst the law has evolved in terms of sexual violence, the reception of victims has not. They continue to be subjected to biased, prejudicial stereotypes – to a system more invested in providing perpetrators with immunity from false accusations, than victims with restitution and societies with protection from criminals – that make it almost impossible to provide victims with the right to a fair-trial and far too easy for perpetrators to get off.
Professor Liz Kelly argues on the basis of her research that what is needed is a replacement of the ‘culture of skepticism’ with a ‘culture of belief’. I couldn’t agree more. As a society, as individuals, when abuse or assault is disclosed to us the only humane response is one of belief and support. Victims who are believed and supported will find themselves able to come forward to police. Victims who receive a fair and just response from those they disclose to will be able to pursue the crime, and the offender, through the justice system. And, if the police and the legal system, operate from a position of belief, from a culture of belief, whilst standing by their usual principles of ‘innocent until proven guilty’ and ‘beyond reasonable doubt’ there is no need to fear false accusations. For too long, the gendered construction of sexual violence has been a cloak of impunity for perpetrators to hide behind. It’s time we abandoned these outdated and prejudicial stereotypes and invested instead in a ‘culture of belief’ and true justice for all.