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Photo: Getty Images
Photo: Getty Images

OPINIONSocietyApril 20, 2021

It’s not ‘stealthing’ – it’s rape

Photo: Getty Images
Photo: Getty Images

Last week in Wellington, a man was convicted of rape for removing his condom during sex without consent. For Frankie Bennett, who was subjected to a similar assault, it’s validating – but now we must stop using euphemisms to describe sex crimes. 

In 2018 I was “stealthed”; a man I was dating secretly removed his condom during sex, despite the fact I’d made clear I would only sleep with him if we used protection. I felt angry and violated, but also confused – was it bad sex, assault, or even rape? 

Last week, Wellington’s District Court answered my question. In a first for Aotearoa New Zealand, a man was convicted of rape for removing a condom without consent during sex

This landmark conviction echoes courts in the UK and Germany that also found defendants guilty of rape on similar facts.

However, these cases remain controversial in that they challenge widely held views about what rape is, who can say they have been raped and who should be punished as a rapist.

For me, this recent rape conviction is validating. It confirms my own experience was a serious sex crime for which my perpetrator should be held accountable.

For many, however, the only legitimate rape convictions come in the form of “stranger rape”; a dark alley, a defenceless woman and a violent male aggressor. In reality, rape most often happens between people already known to each other and doesn’t always involve force.

Regrettably, I find myself playing into the narrative that the word rape must be saved for the horrific, violent, fear-for-your-life scenarios that fill every woman’s nightmares. 

Although I know non-consensual condom removal is rape in the eyes of the law (if only I could prove it), I still find it very difficult to say I have been raped. Although I felt deeply violated and betrayed, I suffered no physical injuries and didn’t feel threatened at the time. In fact, I didn’t realise anything had happened until afterwards; the ultimate in gaslighting.

Is it right to say I experienced the same thing as a woman who was violently raped and feared for her life? Absolutely not. But do men in both cases show flagrant disregard for women’s bodily autonomy and an intent to dominate and control women? Yes.

In hierarchising instances of sexual assault and rape, we pit victims against each other. Patriarchal power structures are clever. In persuading us that what happened “wasn’t that bad”, and that speaking out would insult those who “really suffered”, they deftly silence women. We obediently minimise our trauma, police other women and stay conveniently quiet.

These same patriarchal power structures dodge accountability through rape myths that discredit a woman’s word; she was drunk; she was wearing a short skirt; she was asking for it.

This pervasive rape culture skilfully diverts the conversation away from men’s responsibility to not treat women like objects for their own sexual gratification and towards women to prove themselves as worthy victims. Women must convince the world that men’s actions caused them damage and that they should be believed.

Let’s be clear: all sex crime causes harm. Men who “stealth” take reckless decisions to prioritise their own pleasure over their partner’s safety; a morning-after pill, a nervous STI check two weeks’ later and potentially permanent psychological damage. At present, women are expected to shut up and put up, grateful in the knowledge it could have been much worse.

How bad must it get until women are worth risking men’s futures for?

Because that’s the issue here – men’s futures. We shouldn’t condemn men as rapists! We can’t lock them all up! Their lives will be ruined!

But what about women? Why must women tolerate male entitlement towards our bodies? I don’t hear the same concern for how rape impacts our futures.

The truth is, society is scared to do away with a euphemism like “stealthing” because then we have to be honest about how frequently rape happens. We have to come to terms with how many of us have been raped and, crucially, how many men are rapists.

Naming things accurately and precisely is an act of power. The language we choose to name and frame emerging phenomena and ideas determines how they are received in society. It follows that naming things comes with great responsibility.

“Stealthing” misnames a type of rape. Coined by perpetrators in online chatrooms, it sounds more akin to expert manoeuvre than a calculated sex crime. It is another way we diminish the scale of sexual violence against women. 

I now feel able to share my rape publicly. I know this will infuriate some men, who no doubt have very good reasons to staunchly defend the status quo where rapes go unspoken, victims go unheard and perpetrators go free.

If we, like our courts, view consent rather than physical force as the distinguishing factor between rape and sex then we must call out “stealthing” for what it is: rape.

Need help?

0800 88 33 00 National Rape Crisis helpline. Find helplines and websites for those affected by sexual violence in your own area at rapecrisis.org.nz

Safe to Talk phone: 0800 044 334; text: 4334; email: support@safetotalk.nz; live webchat www.safetotalk.nz

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Image: Getty
Image: Getty

OPINIONSocietyApril 19, 2021

The terrible story of Mrs P: Cruel injustice compounded by arbitrary, unkind response

Image: Getty
Image: Getty

The premature dismissal of compensation for a woman wrongly convicted and sentenced to a year of home detention is morally rotten and practically misguided, writes Andrew Geddis.

In her magnificent reporting on things New Zealander’s usually don’t like to think about, Stuff’s Kirsty Johnston has told some pretty sad stories. Families denied payment for a lifetime of caring for their disabled adult children. Autistic people locked in seclusion cells because they are just too hard to deal with. But her latest story on a woman who can only be called “Mrs P” might just about be the saddest of all.

The full account deserves your attention. However, a nutshell version is that following the end of an abusive relationship, Mrs P ended up in the Family Court. The judge in her case apparently took against her, ultimately accusing her of altering a document to try and mislead him. He reported her to the police, who prosecuted and upon being convicted she was sentenced to a year of home detention. In 2020, the Court of Appeal quashed her conviction with, it’s fair to say, some raised eyebrows at the way the lower courts had dealt with her case. However, by that time her sentence already had been completed.

So far, so terrible. Being falsely found guilty of a committing a crime would be a pretty awful thing in itself. Sure, quashing the conviction lifts it from Mrs P’s record, but it can’t undo the initial blow. And, as Johnston lays out, the consequences of that ultimately overturned conviction were devastating for Mrs P. She lost a year of her life sitting in one place, unable to leave it. She lost her job as a teacher. It caused her to rack up significant legal debts. It has left her living on a benefit in a garage with no hot water.

As such, given that Mrs P’s life largely has been ruined by the justice system wrongly labelling her a criminal, you might think that maybe the government would want to do something about putting that wrong to right. No system can ever be perfect and errors will be made. But, surely, if the power of the state is used wrongly to deprive you of your liberty and so take most everything from you, then it should then do something to help undo that harm.

Apparently not, as Johnston subsequently has reported. You see, the “guidelines” that the Labour government adopted in 2020 to deal with wrongful convictions only cover cases where a person is imprisoned. Because Mrs P instead was sentenced to home detention – by “the narrowest of margins” according to the sentencing judge – she falls outside of these. Meaning that the current minister of justice, Kris Faafoi, has rejected out of hand any chance of Mrs P receiving compensation.

There’s three points here. The first is the most obvious: what the actual fuck? An abused woman is revictimised by the criminal justice system and the response is, in essence, “computer says no”? The guidelines on compensating for wrongful conviction are just that … guidelines. Compensation payments made by the government remain a matter of “prerogative”, given on an “ex gratia” basis. If the Labour government wanted to be kind to Mrs P, then it is entirely free to divert from the guidelines and do so.

Second, the decision to exclude wrongfully convicted persons sentenced to home detention from the government’s compensation guidelines makes little sense. Here’s how Andrew Little, the then-minister-of-justice, explained the decision in September last year: “You get to be in a place you’re familiar with, usually with people you’re familiar with … It’s not the level of regimentation and stony-faced existence you’d get in prison.”

There’s an element of truth to that. Home detention isn’t as complete a removal of liberty and other freedoms as is imprisonment. However, it is still a severe restriction. You have to remain in one place for up to an entire year, only leaving it for extremely limited purposes approved by a probation officer. Imagine living under level four lockdown for 12 months, with no exercise breaks or supermarket trips beyond your property. And as the court may impose conditions on you while you are on detention, you may not even be allowed wine to see you through these long days.

Then consider the reasons why the guidelines say a person wrongfully imprisoned should be given a base rate of $150,000 for “non-pecuniary losses” per year locked up:

  • Loss of liberty;
  • Loss of reputation;
  • Loss or interruption of family or other personal relationships;
  • Loss or interruption of school or study opportunities;
  • Mental or emotional harm.

At least three of these five reasons apply to home detention just as they do to imprisonment. Sure, they may not apply with quite the same force; prison is considered “tougher” than home detention. But, that’s only a reason to give a lesser amount of compensation, not to deny compensation altogether.

In fact, this is what the guidelines already do. They provide for compensation at a lower rate for any time that an imprisoned person spent “where there are significant restrictions on liberty as conditions of … bail or parole.” So, this sort of outside-of-prison loss of liberty will get compensated for – but only if a person also spent time in prison. If a person has more significant restrictions on liberty placed on them due to being on home detention, it apparently won’t get compensated for.

Which brings us to the third point. The guidelines’ exclusion of home detention appears pretty arbitrary and unreasonable, given the stated intention to compensate for certain specified harms. Furthermore, Kris Faafoi has publicly rejected the idea of compensating Mrs P before her lawyer even has made a formal request. He’s treated the (arbitrary and unreasonable) guidelines as if they were a binding legal constraint on his actions, rather than guidelines to aid him when making recommendations to cabinet.

That makes his refusal look somewhat vulnerable to legal challenge to me. Just because any decision on compensation ultimately is for cabinet to make as an exercise of prerogative discretion doesn’t remove the role of the courts in reviewing it. After all, when Amy Adams, then minister of justice, decided not to adjust the guideline compensation awarded to Teina Pora to account for inflation, the High Court told her she’d got it wrong.

As such, when Mrs P’s lawyer does put her formal application for compensation before Kris Faafoi, he might want to think long and hard about actually saying “no” to it. For one thing, he serves in a government where kindness is queen. It costs little to just do the right thing. And for another, if he won’t do this willingly, he may find that the courts are prepared to make him do it anyway.