I have avoided writing on the subject of Christian Porter and historic rape claims as well as the allegations made by Brittany Higgins that she was raped by a former colleague in 2019 because quite frankly, nobody needs to hear the opinion of a white male aged between 18-65. Actually, nobody needs to hear the opinion of a white male aged between 18-65 on the subject of rape in not quite 95% of cases.
Perhaps Christian Porter didn't rape anyone more than 30 years ago, although given that the person who made the complaint has died and cannot be interviewed, that she never made a formal statement to the police, that forensic evidence and gathering witnesses is impossible; means that the NSW Police have exactly zero idea of knowing either way whether or not he did commit rape. Although the presumption of innocence exists at law, there is no way for the public to know that they can trust him, and certainly not way for the public to know that they can trust him to lead the national inquiry into sexual harassment¹, otherwise known as "Respect@Work: Sexual Harassment National Inquiry Report (2020)". For his effort, Scott Morrison says he won't move Christian Porter from the position of Attorney-General; which is also presumably based upon that presumption of innocence.
We should not forget that while this is front and centre of a so called "trial by media" in the absence of actual trial by legal inquiry, this is all set against a background of absolutely justified rolling anger by women.
The very wide gender divide in sexual violence suggests that while the #MeToo movement wants to yell loudly with a thunderous roar, it is met with pretty boring stock phrases, worn out cliché and an entirely unexceptional banal complacency by men. While crime statistics show that anyone can be a victim of violence, the far more boring data suggests that the victims of crime generally are mostly women and that crimes of a sexual nature are overwhelmingly women. The natural corollary of this is that while it is generally true that humans are bad at sustaining empathy, men are especially bad at generating any empathy in the first place.
All that aside, the subject of crime is overwhelmingly the study of aggressive male behaviour². Mostly the rates of crime between the sexes follows a 4:1 ratio but when it comes to sexual crime in particular, that rate increases to 19:1. The only broad area where there is anything approaching a more equal footing, is crimes against property with intent to take something. Theft is roughly 3:2 and Fraud is roughly 2:1.
On ABC1's QandA episode of 4 November 2019, journalist Mona Eltahawy asked the question "How many rapists must we kill until men stop raping us?" The question is obviously one of hyperbole and seemed to scare people who happen to benefit from the status quo. If asking a question scares men, then let them be scared. If an episode of QandA lasts for 60 minutes then the appropriate amount of air-time to people who actually live in fear of violence being perpetrated against then would be about 49 minutes for women and 11 minutes for men. If that then becomes the appropriate amount of air-time to people who live in fear of sexual being perpetrated against them then that then would be about 57 minutes for women and just 3 minutes for men.
The central feature of the legal system is that it is set up to evaluate the cases of appellants and respondents. It is by very nature, adversarial. Especially in the case of rape, everything is reduced to the absolute minimal number of elements and in evaluating a case, the only two options are: Did it happen? Did it not? In rape cases, it is usually difficult to establish evidence through finding witnesses because of the kind of act that it is. The immediate question of whether or not we believe the woman, almost automatically evaluates the case as having happened. Already from the outset, whatever presumption of innocence to the crime that we would normally afford to a respondent, is compromised.
Applying other legal tests to rape cases would really be an agent for change. If you extend to the idea of the Man on the Clapham Omnibus, who is a hypothetical ordinary and reasonable person, I wonder where that would end up. I find it almost insane that law students when discussing the doctrine of provocation as a defence to murder, they are almost always lead to read cases where the man has killed his wife or de facto partner. They are almost always painted as the woman leaving the man in search of a new partner but almost never in the context of previous violence by him. Especially in rape cases, instead of the Man on the Clapham Omnibus, it would be a very telling exercise to test rape trials with what an equivalent reasonable woman believe about consent in these circumstances. Moreover, I think it would be even more telling to see how men react to the imposition of such a test.
It also does not help that legal and political systems have for the most part, been designed for the maintenance of power and wealth by the already powerful and wealthy. In the last 200 years we have seen the abolition of slavery, the extension of the franchise first to men and then women, the Family Law Act was only passed in 1975 and various anti-Discrimination Acts have been passed only within my lifetime. We still have political 'lobbying' groups who are actively arguing that the franchise be diminished and that anti-Discrimination provisions be repealed, presumably because they want the right to practice discrimination in impunity.
That says to me that even in the 21st century, legal and political systems are still set up for powerful and wealthy males to enforce their power by setting legislation that controls the powerless, the poor and the vulnerable. In days of yore, intelligent women who dared rock the system or rattle the cage, may have been put on trial as a witch in what amounts to state sanctioned murder.
As a spectator who watches politics like people watch sport, I have repeatedly watched on in horror as woman after woman in politics are pushed out of politics, for far less than their male colleagues. Meanwhile, it repeatedly happens that men who do the most horrendous things, retain their job.
Specifically I can not speak about the facts of either the Porter case or Me Higgins case but I do know that there should be a set of criminal charges tried and tested against the Liberal Party staffer and in the Porter case where that is impossible, at very least there should be an internal enquiry.
The system is allowed to perpetuate because of the very real fears that women have that they will not be believed. The black and white nature of the legal system appears to be in part held up on the premise that women will not come forward and are fearful of doing so.
Of course the unstated problem here, which needs to be repeatedly yelled is "Men, stop raping women!" If that sounds lopsided, then remember that were aren't dealing with a 50:50 problem but a 95:5 problem. Women raping men is an edge case.
Addenda:
I also haven't mentioned LGBTQI people because if women raping men is an edge case, then all LGBTQI cases are even more of an edge case. The big 95% problem needs to be addressed most immediately.
2nd Addenda:
This morning (11th Mar) the female CEO of Minter Ellison, which is the legal firm which has been contracted by the Liberal Party to the tune of more than $4m this year, has lost her job because she sent an email to staff about taking on Porter. A woman in power has lost her job for because she dared to show concern for her staff but Porter, is still being protected.
No comments:
Post a Comment