THE SAVAGE MIND
Rape and restorative justice
January 17, 2013
While some friends and I sunned our legs on the back porch the other day, our conversation turned to mortality. We're deep like that. One woman recounted the tale of her almost-death which completely altered the way she lived her life. When she was 20, she had been raped by a stranger at knife-point.
When the police finally found the perpetrator, she discovered that he had raped other women in the area, and had murdered some of them. While he was being charged, she decided to opt out of the proceedings. They had enough evidence to 'put him away' for a long time, which is presumably what some of the survivors wanted. But my friend didn't believe that prison would rehabilitate him, nor that it would aid her own survival.
Her perspective, which came from her deep pity for the misery which led to his awful deeds isn't mainstream, but it might help us understand this disturbing graph which circulated in social media last week.
There are, of course, many barriers that discourage women from reporting abuse to the police. In a legal context, sexual assault is incredibly difficult to prove, often boiling down to one person's testimony against another's. Long and gruelling court proceedings are unlikely to deliver the remedy the survivor needs. Survivors can endure social victim-blaming, and risk retraumatisation in the process.
As an advocate of restorative justice, my friend recognises the shortcomings of the criminal system which does more to impede justice for survivors than it does to enable it.
Yet I somehow still feel vindicated by the law. It could be that I watched too much Law and Order in my formative years, or that the idea of giving up on the belief of legal protection is all too scary.
I recently reread Helen Garner's 1997 book The First Stone. In it, she laments the ease with which two young women reported an alleged incident of sexual harassment to the police. She sees the legal system as damaging to everyone involved in such a case.
While I admire the book for many reasons, I read it a couple of decades after it was published, at a time when it seems reasonable to believe that the law can remedy any injustice. I grew up in the age of litigation, the age of suing those who bother you. I couldn't see what Garner was talking about.
During incidents when I've felt threatened by men, I've crudely invoked the law to remind the threatening character, and perhaps myself, of my right to safety and security. Things along the lines of 'I'll call the cops!' and once, bizarrely, 'I'll sue you!' which is gen-Y for 'you're out of line'. These adolescent defences simply articulate that my rights are inalienable, and that the state will protect them.
Of course, sexual violence being one of the least reported and least convicted crimes, the state is actually quite incapable of protecting my rights in that department.
A new taskforce initiated by Defence Minister Stephen Smith will spend the next 12 months addressing more than 1000 sexual assault claims within the Australian Defence Force over the past 60 years. Following Smith's official apology to the survivors of these abuses, the primary aims of the taskforce are acknowledgement and compensation for survivors, rather than immediate punitive action for perpetrators.
The head of the taskforce, retired West Australian Supreme Court judge Len Roberts-Smith, told ABC that the proceedings would not be 'a civil liability-type scheme, where people have to establish damages and liability and to go to great lengths of proof to establish a claim'.
The compensation of up to $50,000 per applicant (from the existing military budget) will not prohibit them from further legal action outside the taskforce. The taskforce will attempt to identify abusers, and will also refer relevant cases to police and the military justice system.
This framework shows more sensitivity to the needs of survivors than many other state responses. It follows in the vein of a truth commission, where really hearing claims and providing a context for perpetrators to take responsibility are more important than retaliation. While it probably won't lead to a royal commission, the taskforce is an important recognition of a failed bureaucracy.
Where the law doesn't have the scope to deliver justice for any of us when we need it most, we are compelled to reassess our blind faith in the institution.
Ellena Savage is a Melbourne writer who edits Middlebrow, the arts liftout in The Lifted Brow.
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18 Jan 2013
I read Helen Garner's "The First Stone" a number of years ago and, as always with Helen's writing, found it thought-provoking - but it was also written from a viewpoint I couldn't necessarily empathise with. Rape is a crime of intense personal violation against another person - the impact on the life of the victim can be inestimable. And it can be equally devastating whether the perpetrator is a stanger or, very disturbingly, someone known and trusted. I can well empathise with those victims who would not want to engage with the criminal justice system. It's a long, tortuous journey 'back' and, sometimes, the people who should most understand and support don't (or can't). The individual who rapes is damaged and, horrendously, then damages others. Restoration for both parties is important and any way of achieving that should be encouraged.
18 Jan 2013
That graph you link to is a bit contentious. How do you or anyone else know that those figures are correct. I am a criminal barrister, and I reckon the number falsely accused is significantly higher than that. I don't know for sure, but neither does the person who prepared that graph.
18 Jan 2013
I'm with Adrian re the graph. This shouldn't be taken seriously by anyone reflecting on the serious issues Elena brings up.
21 Jan 2013
I did some more research on that graph. It was prepared by some group called Enliven who are lead by a woman who claims psychic powers. Really serious social commentary there Eureka Street. Worst I have seen in all my years reading. Just looking for graphics to support and reinforce existing prejudices.
Rape is serious and deserves a better level of discussion than this.
22 Jan 2013
Retaliation is not the same as punishment, Elena. That's why we have a justice system, all too often flawed by misogyny. To suggest a woman who wants a rapist jailed is 'retaliating' is profoundly wrong. To talk about money in relation to rape is just appalling.
If the state can't protect you, push for effective change, not for letting rapists go unpunished.
23 Jan 2013
Sorry, I dropped an 'l' from your name!
23 Jan 2013
I did some research on the graph too, Adrian (ie, read the sources/website). There was nothing claiming that information was sourced through "special psychic powers". It mentioned the founder's interests and qualifications, but I could see the relevance of your comment. (She also had blond hair - does that skew the data?)
20 Mar 2013
I found this an interesting and thoughtful article, I'm just a little unclear about your thoughts on Garner's book. I haven't read it but from what I understand, her views were controversial at the time, so I'm not sure a differing perspective is a 'now vs then' issue as such. I personally don't feel it's any more "reasonable to believe that the law can remedy any injustice" today than it was 15 years or so ago.
I'm also unclear on the connection you're drawing between a litigious society and having faith in the law. I would not think these are particularly linked. It's perhaps worth noting the time this book was published was a peak time of litigation being in the cultural consciousness. I suspect this book's age is likely less of a factor in your view differing from the the author than you may be thinking. We have not made such giant strides in this relatively short amount of time to drastically alter our collective awareness and expectations of the law.
Perhaps I have misunderstood you though - as I said, I found this section of the article somewhat confusing.