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SocietyAugust 17, 2016

The Kuggeleijn case and the simple concepts we still don’t understand about consent

Guest writer
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The Scott Kuggeleijn case is but the latest example in a long history of damaging misconceptions about consent in this country. Lawyer Madeleine Holden says we need to improve that conversation, and fast.

Content warning: This essay concerns the topic of sexual assault which may be triggering to survivors.

Recently, the jury in the rape trial of Scott Kuggeleijn announced that it could not reach a verdict, meaning that he will again have to stand trial. The media is covering the case with interest because Kuggeleijn is a well-known cricketer, and I have hitherto avoided the story with deliberate rigour, because rape trials depress me.

However, when the dialogue surrounding the case degenerated into victim blaming and harmful misconceptions about consent – as is the regrettable norm in cases like these – my lovely Spinoff editor, Alex Casey, asked me to write a piece about it. She said that the coverage around consent – and, in particular, the line of questioning from Philip Morgan QC – had been rough, and I believed her. I am a young lawyer who has practised criminal defence, so I bring a modest degree of professional knowledge to these discussions. In another capacity, commenting on rape, rape culture and consent has somewhat become my beat.

I would prefer to write about almost anything other than rape. I would prefer to write gif-laden listicles about all the times Beyonce slayed. I would prefer to write deeply-researched articles on under-discussed topics, like body image issues in queer communities. I’d even prefer to write copy for onesie ads. But I suppose I’m fated to keep writing about rape, like Sisyphus pushing his boulder, until the day I finally retire to the woods – or until conversations about rape culture and consent improve – because rape keeps happening, sometimes to people I love.

The facts in this particular case, in case you are unfamiliar, are as follows: a cricketer went home with a woman in Hamilton in 2015, and either he raped her, or he didn’t. The woman’s testimony at trial was that Kuggeleijn held her hands above her head the morning after and raped her, despite her saying no, clearly and audibly. His testimony was that he believed she consented, that she “seemed like she was enjoying it.”

The Court heard that the morning after the incident, Kuggeleijn sent a text message to the woman that read as follows:

“I heard you felt you couldn’t say no and were pressured into things. […] It’s pretty chilling to hear and think of myself in that kind of light, but looking back I was pretty persistent. […] I’m so so sorry and it has made me think about a few things. […] I hope you are OK and I’m sorry for the harm mentally I have caused you.”

Because no one else was present in the room when the incident occurred, the conduct of the woman on the night in question has received a high level of scrutiny to determine whether Kuggeleijn’s alleged belief in consent was reasonable. To hear those in his camp tell it, it was reasonable for him to believe he was getting sex that night.

We have heard extensively that the woman was drunk, but that is irrelevant, because being drunk doesn’t communicate consent or make you more likely to think that a rape has occurred when it hasn’t. Rape is unambiguous like that.

We have heard from Kuggeleijn’s friend that the woman was wearing “a short skirt and a top ‘with her breasts pushed up’,” but that is irrelevant, because there is nothing you can wear that invites sexual contact or, again, communicates consent for you.

We have heard that the woman flirted with Kuggeleijn, grabbed at his crotch and went home with him, and also that they “were not lying in bed like a pair of railway sleepers – they were doing things to each other.” All of this is irrelevant. There is no amount of flirting or previous sexual contact that makes overriding someone’s “no” okay. No matter what occurred before that point, if the woman said “no,” consent was absent. If Kuggeleijn proceeded anyway, he raped her. This is not a difficult conceptual exercise.

Kuggeleijn’s defence counsel, Philip Morgan QC, honed in on the detail that the woman told Kuggeleijn she was on the pill. Contraceptives, though, cannot communicate consent for you. If Kuggeleijn heard the woman say “I’m on the pill”, it was not reasonable for him to take that to mean “I am consenting to sex with you”, especially if the woman also said “no”, which she said she did.

The court heard that the woman experienced a panic attack following the incident. Morgan invited the jury to deduce that she “had to come up with an explanation for her girlfriends of why she had that panic attack”, and therefore pretended Kuggeleijn had raped her. The idea that regrettable sex could trigger a panic attack – and a series of lies – is a curious one: there seems to be a complete lack of meaningful incentives for that approach, combined with many, many tangible downsides. It’s a shame that Morgan pursued this line of defence, as the idea that women “cry rape” in response to regrettable (but consensual) sex is a persistent, well-documented rape myth.

So far, so routine: scrutiny of what women wear, how much they have to drink and all aspects of their sexuality are regrettably routine in rape trials. However, Kuggeleijn’s lawyer even suggested that, assuming the woman did say “no”, that might not have been definitive. Morgan grilled the woman about the manner in which she said “no”, discussing whether it might have been a “light-hearted no” or a “not-now no.” The honest-to-god turning point of the Kuggeleijn case is whether “no” might have actually meant “yes.” Morgan literally said to the woman, “Were you saying no but not meaning no?”, reaching an Orwellian low point in our national conversation about consent.

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Illustration: Kyle Watson

Rape, as defined in New Zealand’s Crimes Act, contains a subjective element: the accused person must have sexual connection with another “without believing on reasonable grounds that person B consents to the connection” for the act to constitute rape at law. Morgan, then, is building the narrative of a “light-hearted no” or a “no that doesn’t mean no” to suggest to the jury that it might have been reasonable for Kuggeleijn to believe that no meant yes. And the jury came back hung.

It feels tiresome to state, and I’m so bored with finding new ways to say it – with repeating, ad nauseum, something so crushingly obvious – but no means no, and it is not reasonable to believe that no means yes. There are no light-hearted no’s or not-now no’s, only the bright red light that a “no” in any way, shape or form creates. To suggest otherwise, and for it to be taken seriously, shows that the assumptions at the core of our conversations about consent are deeply rotten.

The woman advocated tearfully on her own behalf when she responded as follows:

“I was saying no. I was not coming out all guns blazing. I thought it should be adequate saying no. It should not matter what tone of voice I was saying it.”

It’s hard to fault her logic here, but Kuggeleijn’s defence rested partly on the idea that he acted “as any red-blooded male would do”. If it’s true that 100 men would act like Kuggeleijn did, then traditional masculinity has a bone-deep problem with female autonomy. If 100 men hear “no” and proceed anyway, then 100 men should be convicted of rape. More urgently, we need to talk to hundreds upon hundreds of men, early and often, about what consent means.

It’s painful how far we have to go before the dialogue around rape becomes conducive to justice, and we are all simmering in dangerous ideas about consent and autonomy. As a fledgling lawyer most interested in the area of criminal defence, I’m deeply attuned to the importance of the presumption of innocence and the right of accused persons to a rigorous legal defence. I’ve worked with individuals accused of terrible crimes –  including sexual offences – and I’ve done so with a clear conscience, because defence lawyers play a crucial, righteous role in our legal system, and everyone accused of a crime deserves such aid.

As a young woman, though, I’m sick of hearing about how many of my friends have been raped. I’m sick of the media and our legal system tacitly condoning rape, ensuring that men (and some women) will continue to rape without facing meaningful consequences. I’m sick of the fact that women bond with each other by sharing stories about how terribly men treat us; about how blithely they override our desire to be left alone.

So, enough of this. Enough of the idea that women mean yes when we say no. Enough of the idea that women can communicate consent through our clothes or sexual expression or oral contraceptive pills. Enough of the idea that men are bound to coerce women into sex, that it’s natural, inevitable and eternal for men to behave like animals. Enough.

If the events depicted in this story have been triggering in any way, please consider contacting any of the following organisations:

Rape Crisis

More Reading

    Women’s Refuge

    Lifeline

    HELP

    Keep going!
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    SocietyAugust 13, 2016

    Let’s fight to make Auckland a liveable city, not just an affordable one

    Guest writer
    GettyImages-460862725-850×587

    Achieving a better, fairer Auckland involves much more than just building affordable homes. Urbanist Jenny McArthur explains why liveability should be a key demand of the War for Auckland.

    As an academic specialising in infrastructure and urban growth, I’ve been delighted by how The Spinoff’s War for Auckland series has helped stimulate the public’s interest in urban planning. Suddenly it seems everyone has a competing opinion on building consents, densification and upzoning. And that’s great. But instead of focusing entirely on house prices and the Unitary Plan’s capacity to accommodate forecast growth, I’d like to see the conversation expand beyond the private realm.

    “To make Auckland the world’s most liveable city.” That’s the key objective of the Auckland Plan, the 30-year masterplan of which the Unitary Plan is just one component. To many, “liveability” is little more than glib political rhetoric. But liveability touches every aspect of the public debate over Auckland’s future. If liveability is to be translated into meaningful planning decisions we need to start taking the concept much more seriously.

    Lola Palmer-Blandford, 4 of Kohimarama rides her scooter in Auckland's Wynyard Quarter, January 2014.
    Lola Palmer-Blandford, 4 of Kohimarama rides her scooter in Auckland’s Wynyard Quarter, January 2014.

    The idea of liveability first emerged as leefbaarheid, a term used in Dutch rural policy in the 1960s. As more people moved from the countryside into cities, questions were raised about whether the tide might be stemmed by improving the quality of life in rural areas. Several years later the concept was flipped into the urban context, as a slogan for local government elections in Vancouver in the 1970s. After several terms of “growth-centred” policies, it became apparent that making a city as economically productive as possible didn’t always result in a place where people wanted to live. According to Canadian geographer David Ley, liveability represented a more “humane, socially progressive, and aesthetic” approach to the urban development of Vancouver.

    More recently, the liveability concept has been adopted by Monocle magazine and the Economist Intelligence Unit (EIU), who both publish annual “liveability rankings”. Auckland performs well in these rankings, and it is rarely outside the top 10. But do they tell us anything meaningful, or are such rankings simply a way of packaging the urban experience as another form of conspicuous consumption?

    By definition, international rankings of the quality of urban life are only useful to those with the luxury to be able to make such decisions on where to live. This group, not coincidentally also Monocle’s target market, is typically made up of highly-skilled professionals with specific preferences for vibrant cities with good schools, an interesting restaurant and entertainment scene, ample sunshine, and good international transport connections. Any form of political unrest is undesirable: in 2015, Hong Kong fell 15 places in the EIU’s Liveable Cities Index as a result of the Umbrella Revolution, suggesting that exercising one’s right to peaceful protest is at odds with their version of liveability.

    Liveability is a useful frame of reference, but I’d like to see Auckland re-appropriate it to serve not only the city’s international reputation, but Aucklanders themselves. French sociologist Henri Lefebvre talked about the “right to the city”, arguing that for cities to thrive, the people who live there need political agency, and to use that to shape the city’s development toward the common good (not just to preserve private property values). It doesn’t require a revolution, just that the public get involved. Exercising our “right to the city” means lobbying to shape urban development for a fairer Auckland, rather than leaving decisions to the politicians and bureaucrats.

    It’s plain that liveability means something different to everyone: that is exactly the point. Cities are nearly always diverse; with an ethnic migrant population of 40%, Auckland is officially “super-diverse” and has a unique Māori heritage. Instead of focusing solely on housing, urban planning should consider and support Auckland’s unique diversity. The things we share in cities, including public spaces and infrastructure, can be designed in a way that works for different needs and preferences. At a recent Auckland Conversations event, Colombian urbanisation expert Gil Peñalosa framed it like this: “People who are 8 and 80 are the indicator species for good places to live. Redesign our cities to keep them safe, healthy and happy, and we’ll have a place that works well for everyone”. Simply expanding the design requirements for streets, public space and transit infrastructure so that they can be used by elderly or disabled residents, and allow children to play safely, makes a huge difference.

    Factoring diversity into city planning means responding to the changing needs of the people who live there. Right now, London is partway through a £4.2 billion roading project – not to build more roads or expand capacity, but to retrofit dozens of major arterials and junctions. Currently, most of the road space and priority for movement is given to vehicles, while tens of thousands of pedestrians and cyclists shuffle around the edges each day, enduring unsafe levels of air pollution and an unreasonable risk of being hit by a vehicle. Redesigning transport infrastructure can open up new areas for locals to use, replacing busy intersections they’d previously try to avoid.

    Liveability rests on the idea that there is a relationship between your experience of the built environment and your quality of life. Academics have been drilling down on these connections for decades, looking at the relationships between transit infrastructure and social exclusion; cycle paths and traffic safety; public lighting and reduced crime; and urban trees and air quality. The epitome of urban researchers’ obsession with this relationship is found in William H. Whyte’s The Social Life of Small Urban Spaces. The 1980 documentary the study of how the design of public spaces shapes how people use them and interact.

    https://vimeo.com/111488563

    The film has dated, but the findings are still useful: “It is far easier and simpler to create spaces that work for people than those that do not – and a tremendous difference it can make to the life of a city”. Liveability pays more attention to human needs, but it isn’t socialism by way of urban policy – some of the biggest improvements toward urban liveability were made in New York and London, under the watch of mayors Michael Bloomberg and Boris Johnson, two firmly conservative politicians.

    Instead, liveability looks to change the way we design a city’s shared areas and infrastructure so that they are places where people want to be. Some Aucklanders might argue that you don’t need public spaces if you have your own backyard. However the Unitary Plan allocates around 60% of growth to intensified development, often dwellings without a backyard. Making higher density housing viable depends on improving the quality of public space and transit infrastructure so that residents don’t lose out from living in a relatively smaller home.

    Auckland may be able to accommodate a million extra people over the next 30 years, but at the current rate of vehicle ownership this will equate to around 700,000 more cars on the road network. Providing transit services that make car-free living a convenient and affordable option is non-negotiable to support the anticipated growth. Intensification without the accompanying investment and planning for liveable public spaces and infrastructure, risks making the newspapers’ “urban ghetto” scare stories a reality.

    If Auckland’s problem isn’t framed properly in the first place, the solution isn’t likely to be something Aucklanders are satisfied with. In the same way, framing the city’s future solely as a question of housing supply and property prices ignores the critical role public spaces and transit infrastructure play in creating viable growth, and ensuring that Auckland is liveable for future generations.

    Public space includes everything beyond the front gate: streets and transport infrastructure, parks and squares, walking and cycling paths and public facilities. The War for Auckland should not be reduced to a battle over private space alone. If Auckland is to be a city where people not only can afford to live, but want to live in the future, then public space, infrastructure – and yes, liveability – can’t be left out of the fight.

    Society