This week, the Director of Public Prosecutions said it was time for the legal system to move beyond the concept of “no means no” and instead put the onus on men accused of rape to prove their alleged victim consented. It’s a move that represents a real shift in the way we view rape victims, and has the potential to bust some of the toxic rape myths that keep the rape conviction rate in the UK stagnant at 6.5 per cent.
The new guidance has two rape myths squarely in its sight. The first is that if a woman is raped when she is drunk, then she is partly or wholly to blame for her attack. The second is that if a woman is raped, she will fight back and shout a clear and unequivocal no.
Let’s deal with that first myth. The oft-cited Amnesty survey on attitudes towards violence against women and girls found that 25 per cent of respondents believe women are partly responsible for the violence committed against them if they are drunk when attacked. The argument goes that by being drunk, the woman has ‘put herself at risk’ and therefore must shoulder at least some of the blame for her attack.
But this is simply not true. The blame for rape falls squarely on the rapist. The law is very clear on this. It is not a crime to get drunk. It is a crime to rape someone.
For a long time now, the law has stated that if a woman is too drunk to actively consent to sex, then it is rape. However, all too often people refer to this as a ‘grey area’. But the simple fact is, if a woman is too drunk to give her consent to sex, then there are no shades of grey. It is rape.
The second ‘she didn’t scream’ myth is a persistent one. It’s the belief that a woman or girl would always scream or fight back if she were attacked, and that if she didn’t scream or fight back, then there was no attack.
But the reality is that when women are sexually assaulted, they are often in fear for their lives. They may feel they need to strategise for their own survival by not unduly alarming their attacker. They may follow his instructions in order to stay alive, and this may include staying silent and not fighting back. Or they may simply freeze – a survival mechanism that kicks in when we are threatened.
Some women may scream and fight. Some women may freeze, from fear or because they believe it may keep them safe from additional, physical violence. No one should apply a moral judgment to either response. No one should tell a woman that she responded ‘the wrong way’.
Because of our society’s skewed understanding of sexual violence, we still see consent as the ‘absence of a no’, not the presence of an ‘enthusiastic yes’. But freezing and not screaming is not an indication of consent. This myth leads to women blaming themselves for not saying no, and has a direct impact on the low reporting of sexual assaults and rapes – a figure that currently stands at around 15 per cent.
Every time we repeat the myth that there is a ‘correct’ way to respond to rape, we are telling women who don’t respond in that ‘correct’ way that they are to blame for a man’s violence. And as with every single rape myth out there, it moves the focus from the perpetrator’s behaviour onto the woman’s. It says that it is up to the victim to behave in an approved manner, and that her response is then ‘proof’ of her innocence or guilt. We ignore the responsibility of the perpetrator not to rape, we ignore that it is up to him to prove that the rape didn’t take place. It is his behaviour that should be under scrutiny and yet time and time again we return to the woman’s actions.
That’s why the move to put the onus on accused rapists to prove consent is so important. It stops treating the victim as guilty, it stops telling women that they have to prove their lack of consent, and instead focuses on the perpetrator’s actions and attitudes. By encouraging the criminal justice system to recognize situations where women may have been unable to give consent, and by putting the focus on men accused of rape to prove consent, we can begin to change a rape culture that means women feel unable to report the violence committed against them because they don’t trust they will be believed.
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