Recently, a Canadian judge found an individual guilty of assault in the beating and robbery of an elderly man. The facts introduced to the court revealed that the victim had been approached by a person who admired his diamond-studded watch, and even offered it for closer examination. When the other person seized the watch, the old man resisted and was beaten, suffering serious injury.
In his sentencing report, the judge noted that ‘the victim, visibly frail and alone, must surely have known that his presence in a dark alley after midnight would signal his vulnerability and could prove tempting to a potential malfaiteur who, had he crossed paths with the victim on a busy street in daytime, would never have considered such an assault. The assailant, by virtue of the victim’s poor judgement at placing himself in such a vulnerable position, cannot be entirely blamed for his actions, reprehensible as they were. He can even be forgiven for thinking that the victim deserved to be robbed, especially since he was foolish enough to show off his expensive time-piece.’ In the judge’s view, the victim’s own behaviour warranted leniency for the accused, who was handed only a conditional sentence, without jail time, to be served in the community.
What is your reaction to this judgement, and the rationalization of the judge for his leniency?
Would your reaction be different if the charge had been rape, and if the individual accused of the assault was excused for his act because the female victim had been wearing a tube top without a bra, heavy make-up, and had generally acted in a way that led her aggressor to believe that she wanted sex? And what if the judge was of the opinion that her dress, manner, and willingness to kiss her ‘admittedly clumsy Don Juan’ signalled her assent to sexual intercourse, even though she had repeatedly told her assailant that she did not want to have sex with him?
The scenario at the beginning of this article is a figment of my imagination. The second – the rape trial – is an actual case, and the conditional sentence was handed down this past week by a Manitoba judge. His judgement has met with considerable controversy, even thought conditional sentencing for such crimes is no longer possible in Canada. Changes made to the law now limit judges’ discretionary sentencing power in cases of violent crime, including rape, but only apply to crimes committed after the law was amended in 2007. The rape in this case occurred in 2006.
There has been much discussion over the last few years about the wearing of the burqa, and in general our Western view holds that requiring women to conceal themselves under an all-enveloping garment is not just denial of personal liberty, but is even the evidence of,in the words of the scholar Feisal Mohamed, ‘a deep spirit of misogyny’.
But our hypocrisy – and when I say ‘our’ I mean to include both men and women – lies in our accommodation of a simultaneous condemnation of the Islamist view of female provocation, and an attitude towards sexual assault victims of ‘she-should-have-known-better’ if the woman wore provocative dress and particularly if she had previously engaged in openly sexual behaviour with her rapist.
I’ve been guilty of it myself. Having a bit of an idea of how feminine comportment has changed since I came of age, I shake my head at the practice of ‘grinding’ with a complete stranger on a dance floor and cringe at the flaunting of cleavage of both sorts. Age has wised me up to the realization that sexual attractiveness isn’t wholly dependent on physical attributes, but maybe I’m just an old-school prude and that’s why I have sometimes judged other women’s behaviour as inappropriately or even dangerously provocative. It’s a sort of ‘what was she thinking??’ mindset.
It isn’t unreasonable to think that an elderly person might have done better to think twice about frequenting an alleyway in the middle of the night, but while common sense is one thing, being held responsible for the actions of someone else is quite another. There is an element of risk in most things humans do, and there are times when we underestimate or choose to ignore the risk, whether it involves walking through a sketchy part of town waving a fist-full of bills or getting into a car with a guy you’ve only just met at the bar. Smarts are lacking in both situations, but that does not excuse the also-human reaction on the other end of the spectrum, which is to manipulate another’s vulnerability.
The Manitoba rapist’s interpretation of events, up to the moment his victim said ‘no’ was, in my view, understandable. I can see how a guy who’s had a few drinks, whose libido is aroused and whose companion is happy enough to kiss him, might be inclined to think that sexual intercourse will be the outcome. I don’t have to be an anthropologist to understand that a woman who makes a point of displaying her sexual attractiveness is sending a message as ancient as humanity. But precisely for this reason, and because all humans are subject to imperfectly human responses - which include misinterpretation of the message - risk-assessment should be part of the picture for all women. This is not to lay blame at the wrong doorstep, nor provide any justification for sexual assault. It is to acknowledge the reality that, although ‘no’ should trump dress and behaviour every time, it sometimes does not.
The law exists in order to protect the vulnerable – who include the foolish, the inebriated, the naive and the merely unlucky – from the predatory. Earlier this week, four Americans sailing in the Gulf of Aden were killed after pirates hijacked their yacht. A significant number of online comments to this news story referred to the victims’ lack of good judgement, how they should have anticipated such an outcome. Analysing the risk of a possibility is not the same as expecting it to happen, and I would suggest that the Americans knew perfectly well a hijacking was possible, but did not consider it inevitable. But imagine for a moment that the pirates are put on trial in the United States, found guilty of kidnapping and murder, but given minimal sentences because their victims had deliberately put themselves in a situation where they were at risk of being preyed upon?
It’s absurd to think this would happen, of course. But when the crime involves sexual assault too many of us – including judges who should know better – mistake a victim’s faulty risk assessment skills and her naiveté, for culpability.