Given the failings of the legal system to prosecute sexual offences, some survivors of sexual violence and abuse are choosing to bypass the process altogether and speak out about their abuse online. Madeleine Holden explores this growing phenomenon.
Content warning: This story contains discussion around sexual violence and survivors
With increasing frequency, survivors of rape and abuse are using the internet to name those who abused them. Several high-profile instances have occurred in the past few months: Stoya tweeted late last year that porn star James Deen had raped her; Malika Anderson accused celebrity stylist Ian Connor of sexually assaulting her and Jean Deaux made parallel allegations on her Tumblr, calling Connor a “serial rapist”.
Kesha remains locked in a legal battle to be released from the contract that ties her to her alleged rapist Dr Luke; a situation she’s referenced on social media. Locally, several people spoke to The Spinoff in a piece detailing a prominent New Zealand music identity’s “troubling relationships” with them when they were younger, describing the sexual abuse and grooming of girls as young as 12.
The outing of abusers online is set to be a growing phenomenon, as rates of abuse remain stubbornly high and social media becomes a permanent fixture in everyday life.
It’s easy to see why survivors are reluctant to formally report their cases. Statistics paint a grim picture of the difficulty in successfully prosecuting sexual assaults: in New Zealand, about 10 per cent of incidents are reported and one per cent result in conviction. Convictions are difficult to secure because prosecutors are held to a high standard of proof and must establish their cases beyond reasonable doubt. Survivors often lack sufficient evidence to prove that sexual assault has occurred and the presumption of innocence will favour the offender in “he said, she said” cases.
Eleanor Butterworth of Rape Crisis said about the evidence burden for survivors: “You aren’t just proving that sex occurred, you are proving that it was non-consensual, which is much harder to find evidence for,” she explains. “Particularly when we consider that 90 percent of sexual violence is at the hands of people we know, so have probably had at least a cordial relationship with.”
For those who go through the legal system, the adversarial court process can be deeply re-traumatising: their sexual histories may be raked over, their characters called into question and their accounts scrutinised for inconsistencies and contributory blame. Victims often report feeling like they are the ones who are on trial.
“They [survivors] have very little control over the process and they have to describe the abuse in minute detail, again and again,” Butterworth says. “The act of describing these acts using clear language can be confronting and invasive, and there is a huge amount of pressure for survivors, who know any inconsistencies could be used against them.”
“Some people say physically their bodies feel the same as they did after the assault; numb, shaking, and feeling exposed or violated”.
Of course, that’s if they make it to court at all. There are numerous practical, legal and psychological barriers to reporting sexual crimes in the first place. Victims are advised to contact the police immediately after an assault and a failure to act swiftly may later weaken their case. Until the mid-90s, police standard practice considered that “the complainant would have complained at the first opportunity if her complaint were genuine. Any delay was said to reflect on the complainant’s credibility.”
However, there are many reasons victims might delay reporting an assault. Most are abused by people they know, which can delay the realisation that a crime has occurred and interfere with the victim’s desire to see their abuser prosecuted. Often, women are keen to push the event out of mind rather than traipsing to the local police station to recount the entire event in excruciating detail to unfamiliar police officers.
Victims who do report their assaults have described being asked invasive, cynical and repetitive questions by police, and some report bumbling, insensitive handling of their cases. A Royal Commission of Inquiry into police conduct found police were trained to interrogate and doubt the claims of rape victims far more than those of other crimes. Up until the mid-90s, NZ police training manuals on rape allegations urged detectives to remember that “rape may be falsely alleged due to fear of pregnancy or as an excuse for being late home”.
“Consider [an allegation may be made out of] shame or fear of family retribution, but also consider vindictiveness or pure fantasy,” it continues. A 2004 study out of Victoria University found some police detectives believed up to 80 per cent of rape claims were fabricated—overseas research puts the true figure at between 2 and 10 per cent.
While police manuals and training have improved markedly since then, more recent incidents like Roastbusters demonstrate that police approach to sexual assault victims still has a long way to go.
Fiona Culliney, a Crown Prosecutor in Auckland, explained the process prosecutors follow when deciding whether to pursue a case. “We make decisions to prosecute based on the Prosecution Guidelines; a set of rules which govern the criminal prosecution process to ensure consistency and common standards in key decisions and trial practices. The test is met if we consider the case to have evidential sufficiency and if a prosecution is required in the public interest.
“Occasionally a prosecutor might consider that there are credibility issues with a complainant, or that, despite the complainant’s veracity, there is no real prospect of conviction.”
Small wonder, then, that some survivors would prefer to bypass the whole legal process—although Butterworth is keen to stress that this isn’t a widespread phenomenon yet: “It’s important not to overestimate how much this is happening, because by and large most survivors still feel that they can’t disclose what happened to them publically”.
Nicole, one of the women featured in The Spinoff piece, spoke about why she wasn’t interested in pursuing a criminal case. “I had no confidence in the police or the court system to provide justice, to hear me, or even to interact with me in a way that wasn’t actively traumatising,” she explained. “I’ve made a rape complaint to the police before and it was at least as traumatic as the assault itself, plus it didn’t result in charges or a trial. It was in no way a weighing up between the two options for me—for me personally, there is zero incentive to go to the police in these situations.”
Despite having sound reasons to avoid legal proceedings, many survivors don’t wish to remain silent, either. Those with high-profile abusers may find it galling to watch them accrue fame and clout during the aftermath of their abuse, and would like to trigger an epiphany about the harm they’ve caused. Other motivations include the need for accountability, the catharsis of breaking the silence surrounding abuse and the desire to prevent future abuses and to warn others about dangerous men.
For Nicole, accountability was a key driver when she made the decision to speak out about her experience. “I didn’t do it because I thought I would get anything from it, I did it because I wanted him held to account by his professional and social community”, she explained.
“Quietly telling people about his abusive behaviour did nothing to force the community as a whole—and powerful members of it in particular—to acknowledge his behaviour. I had been speaking behind the scenes for years and almost no one acknowledged me. I just wanted to be heard.”
Nicole makes no bones about the fact that she wanted people to know about his behaviour and shun him accordingly. “I also wanted him to face consequences, yes. Not consequences like prison, but consequences like people no longer wanting to work with him or have him earn his livelihood in the same scene where he abused women. I think those are logical, fair consequences for that kind of behaviour, and they’re still much milder than what most survivors face.”
Survivors tend to find social media a more forgiving space to discuss sexual violence than police stations or courtrooms. They can speak frankly and with more nuance, and, without the risk of blowing their cases or the pressure to perform as perfect victims, can admit confusion about what occurred and display strong, honest emotion. Online spaces, and particularly those with a social justice bent, have an emerging culture of believing survivors who make allegations of abuse. While evidence – in the form of photographs, screenshots or corroborative accounts – is still required to substantiate allegations, the agreed starting point is to acknowledge that abuse and sexual violence are common and that there is little incentive to lie about its occurrence.
None of this is to suggest that outing abusers online is a cushy, kumbaya-singing experience for survivors. They are still exposed to ignorance, abusive comments and judgement, and many face the criticism that they are seeking attention, fame or personal gain from famous men.
“My life is still irreparably damaged by his actions, and talking about what he did doesn’t undo any of that,” Nicole said. “Most of the attention I’ve received has been unwelcome, and there has been no fame, material reward or compensation. In fact, publicly confronting my abuser has cost me a considerable amount of time, energy and mental health.”
Survivors also face the risk of retaliatory legal action, such as defamation proceedings. Although truth is a defence to defamation, a well-heeled claimant may be able to silence his accuser simply by threatening legal action they couldn’t afford to defend.
The reputational damage caused by allegations of abuse is no light matter, and although false accusations are rare, they must be guarded against carefully. However, once again, women are still expected to provide evidence so that baseless claims don’t gain traction, and the accused can also reply to the allegations on their own online platforms, which are often significantly larger and more heavily populated with loyal, defensive fans than survivors’.
It’s clear survivors see the internet as a potential host for more meaningful discussions about sexual violence and abuse. The goal in that case is social accountability rather than legal punishment, and because incarceration is not at stake, survivors need not face such a burdensome onus of proof.
Instead, the online culture requires vigilant honesty and strong ethics on the part of people making allegations, and in return, they can expect to be heard in good faith. There’s a long way to go yet, of course, but the hope of many of those discussing their experiences is that the online sphere can become an alternative to our adversarial, high-stakes legal system which punishes survivors and lets too many abusers off the hook. Another wider aim is to promote social change by educating people about sexual violence and abuse.
Educating the masses about the realities of sexual assault is a laudable goal, and there is a glaring need for a widespread shift in attitude. Some 1 in 5 women will be raped in their lifetimes and so will approximately three per cent of men, and when attempted sexual assault are included they push these figures much higher. A recent survey of 379 male undergraduate athletes found that more than half reported coercing a sexual partner into sex in ways that meet the legal definition of rape—“I used threats to make my partner have oral or anal sex”, for example—and there was a correlation between admitting to coercive sex, and believing in rape myths (“if she doesn’t fight back, it isn’t rape”) and traditional gender roles. Similar studies have found that men will admit to “forcing women to have sex” if asked, but won’t admit to raping them; an alarming semantic exercise.
All of us are mired in a culture that tells men that corralling, deceiving and pressuring women into sex—bareback sex, oral sex, or sex where one person is impossibly drunk—is natural, funny and commonplace. Coercive sexual behaviour is far more common than is popularly conceived and stems from the way men in particular are conditioned to think about women and sex; a catch-22 where the more society excuses, laughs at and normalises unhealthy sexual attitudes, the more common sexual assault becomes (and remains). A wholesale shift in the discussion about sex, consent, entitlement and bodily autonomy is crucial, and social media is an emerging locale for that conversation to take place on an international level.
It’s far from being a perfect alternative to the legal system at this stage, but given the latter’s failings, it’s no surprise that survivors are pursuing new options.
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