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August 2018 Issue [Reviews]

Obstruction of Justice

Why the criminal justice system is ill-equipped to prosecute rape charges

Discussed in this essay:

I Am Evidence, directed by Trish Adlesic and Geeta Gandbhir. HBO, 2018. 86 minutes.

Not That Bad: Dispatches from Rape Culture, edited by Roxane Gay. Harper Perennial. 368 pages. $16.99.

Querying Consent: Beyond Permission and Refusal, edited by Jordana Greenblatt and Keja Valens. Rutgers University Press. 270 pages. $34.95.

all this can be yours, by Isobel O’Hare. University of Hell Press. 190 pages. $30.

Still from I Am Evidence. Courtesy HBO

Still from I Am Evidence. Courtesy HBO

The most clarifying moment in I Am Evidence, HBO’s new documentary about how rape is investigated in the United States, occurs when a woman, Helena Lazaro, says that she harbors more bitterness toward the justice system than she does toward the stranger who raped her when she was seventeen. In spite of a DNA match from her rape kit, Lazaro’s case languished for more than a decade, during which her rapist sexually assaulted at least two other women. By the time Lazaro, now a survivors’ advocate in her thirties, managed to revive her case, the statute of limitations on her rape had come into effect; her assailant was prosecuted only for abducting her and taking twenty dollars from her wallet. But she is no longer angry at him; she says she has long since “moved past that feeling,” and that

terrible things happen to people. Violence is learned, and I have compassion for him. I don’t have compassion for the system that made this okay. Because the system should be more accountable. The system should be better than a criminal.

This insight—that the system is worse than the criminal—motivated feminists in the late Sixties and early Seventies, who had seen state forces abuse and murder those protesting segregation and the Vietnam War, and were thus predisposed to distrust the authorities. Their suspicions were justified: the police interrogation required to file a report was so humiliating and cruelly administered that it became known as “the second rape.” Activists sometimes encouraged women not to turn to law enforcement at all.

Though feminist activism has led to some changes—for instance, marital rape is no longer precluded from prosecution—I Am Evidence makes clear that law enforcement is still saturated with misogyny. Los Angeles County, for instance, wouldn’t prioritize the testing of an estimated 12,000 unprocessed rape kits, but by 2002 law enforcement had managed to find the time and resources to destroy more than 1,000 kits alleged to be beyond the statute of limitations. (The district attorney’s office did not agree that the kits were necessarily beyond the statute of limitations.) In Cleveland, where tested rape kits yielded a total of 1,935 potential matches in the FBI’s DNA database, prosecutors obtained only 284 convictions. In Detroit, where 2,616 hits came up, a mere 101 convictions followed. And in Los Angeles, an astonishing six convictions were secured from 1,684 DNA leads: roughly one conviction for every 280 kits tested.

I Am Evidence follows a chain of culpability from local cops and prosecutors to defense attorneys, judges, and juries. When former LA prosecutor Steve Cooley says that rape charges can ruin a man’s life, he echoes the implicit conviction of many entrusted with handling rape cases: that the victim is lying or was “asking for it.” (Police reports shown in the film make this disposition explicit: “This heffer is trippin’,” one begins.) The courtroom itself is no better; in a cross-examination in Detroit in 2016, a white defense attorney suggests that a black woman who alleges she was raped at gunpoint was, in fact, trying to arrange the sale of her sexual services. Why didn’t she run away when the man approached her? Exactly what sort of shirt was she wearing? The scene lends support to Wayne County prosecutor Kym L. Worthy’s observation that juries don’t want to believe victims of sexual assault: “They find reasons and excuses to not convict.”

Though the film’s directors, Trish Adlesic and Geeta Gandbhir, have amassed damning evidence, they seem unable to understand its implications. Even as they show how rarely DNA matches result in prosecution, let alone conviction, they continue to emphasize untested rape kits throughout the film, perhaps because it is easier to take comfort in some preexisting solution than it is to reckon with a wider web of failures. Even one of their principal subjects, a woman who identified her rapist from mug shots and whose (very belatedly tested) kit delivered a match, sees her assailant’s trial end with acquittal. If viewers come away with a single message, it should not be that rape kits are the neglected solution to sexual assault. It should be that the justice system, as it exists, is incapable of effectively adjudicating rape.

In feminist discourse, “rape culture” long ago replaced “patriarchy” as the favored explanation for why this is so. The phrase, attributed to Seventies feminists, is intended to highlight the many contexts in which rape is functionally excused, encouraged, or otherwise endorsed. And the term does not refer only to a discrete segment of our culture. “Rape is culture,” writes the attorney Vanessa Place in The Guilt Project (2010). “There is no separate ‘rape culture’ bubbling beneath our otherwise sunny American society.” Rape, and the power differences that facilitate it, is present in every aspect of society, in every one of our sacred institutions: the family, the workplace, the university, the church, and the military. Politicians have raped, as have cops, judges, doctors, celebrities, philosophers, and priests—the people who make, influence, and reinforce the components of our culture. If the current president and much of popular entertainment were somehow insufficient indicators of our national desensitization to rape, another recent display came in the form of a New York Times op-ed contemplating the notion of “sexual redistribution,” and in the headlines, from Reuters to NBC, that implied women were responsible for the murders committed by the Texas school shooter and even the Golden State Killer.

When Roxane Gay first began planning her new anthology Not That Bad, she had hoped to collect a mixture of reportage and personal essays by different writers, all of which would examine the nature of rape culture. “The phrase is used often,” she writes, “but rarely do people engage with what it actually means.”

What is it like to live in a culture where it often seems like it is a question of when, not if, a woman will encounter some kind of sexual violence? What is it like for men to navigate this culture whether they are indifferent to rape culture or working to end it or contributing to it in ways significant or small?

But when the submissions began to come in, Gay was stunned to receive not works of reportage or essays but hundreds upon hundreds of testimonies from people who had suffered from sexual violence.

In their underacknowledged anguish, the contributors gave the book a different purpose. They turned it into “a place for people to give voice to their experiences,” to describe their wounds and attempt to fortify others with similar injuries. Almost all the entries are confessional, restless with frustration and pain. And the anger of Not That Bad’s contributors, like the anger of Helena Lazaro, is hardly confined to their assailants. The greater betrayal comes from complicit parents, callous peers, thoughtless doctors. (“At least you weren’t killed,” one therapist says.) Sometimes, the rapist is the parent, peer, or doctor. (“I’ve had a long talk with your father,” a psychiatrist tells thirteen-year-old Sharisse Tracey. “This was just a onetime thing.”) The problem lies with families, the friends that families keep, the church congregations to which families belong, and the professionals to whom families turn. At sixteen, after her father tries again, Tracey writes letters to every adult she knows, begging for assistance leaving home. She receives no replies.

“Rape culture is not ‘foreign,’ but rather, essential, to the Western worldview,” the reporter Michelle Chen writes, describing the role that sexual assault plays in the establishment and policing of borders. Racist fantasies of immigrants smuggling rape into an untouched nation have come to shape immigration policy under President Trump, who campaigned on the conviction that Mexicans coming to the United States were “bringing crime. They’re rapists.” Chen’s words—which recall Place’s claim that “rape is culture”—make clear how much labor will be required to address such violence and how little we’ve done so far.

For the past two decades, arguably the largest influence on American popular opinion about sexual assault has come from media coverage of campus rape and Title IX, the federal antidiscrimination law used by victims at schools when filing complaints about administrative mismanagement of sexual misconduct cases. Before #MeToo, this was virtually the only context in which rape was routinely referred to as a homegrown “epidemic”—though women aged eighteen to twenty-four who aren’t students are at greater risk. (According to the Rape Abuse and Incest National Network, they’re four times more likely than women in general to face sexual assault, while young women in higher education are three times more likely.) Conversations about the safety of women in college have helped us understand just how pervasive rape is, but it has nevertheless proved difficult to draw the country’s attention to other vulnerable populations, such as gender nonconforming people, Native Americans, and sex workers. (All of whom, of course, are also present on campus.)

Some of this can be attributed to the protections afforded by Title IX, which have empowered student survivors to organize in ways that aren’t available to nonstudents. Universities also foster a social environment tailor-made for forming alliances. But persistent and savvy young activists are often further helped by class privilege and whiteness; it is far easier to sell sympathetic stories about the plight of respectable, cis white women than, say, homeless black women or men of virtually any description (though especially incarcerated men of color).

Campus rape debates also have an attentive audience because they invoke stories we have been prepared to hear. Fraternities and alcohol are disproportionately involved in college assaults, a fact likely responsible for the prevalence of two familiar narratives of rape on campus. In the first, a man (a fraternity member) intentionally violates a woman he barely knows while she’s incapacitated. In the second, a mere miscommunication occurs, and the boy (a nice guy with a low alcohol tolerance) accidentally violates a girl because of his intoxication and/or naïveté. The gender in these exemplary stories is, of course, not incidental to how or why they are told, and it’s equally significant that in both iterations the violation can be attributed to an individual flaw rather than a cultural imperative. Either the offender is a sadist and therefore presumed to be a social aberration, or he is someone with a deficiency in social skills. If it’s the latter, the incident becomes a tragic “mistake,” one that could have been avoided by instilling better habits based on a robust understanding of consent.

In other words, “if we get consent right, sex will no longer be wrong,” as Joseph J. Fischel, a social- and sexual-justice theorist, writes in Querying Consent, a new collection of essays edited by Jordana Greenblatt and Keja Valens. His is the perfect summary of what has been accepted as gospel on and off campus since the tautological “no means no” was replaced with the almost comically inadequate “consent is sexy.” (How embarrassing, how uncool to rape someone. How unsexy.) Properly introduce consent to a potential date rapist, this approach implies, and you’ll be rewarded with a sexually law-abiding citizen. But campus consent policies aren’t flawed because they risk eliminating erotic tension, as the worst-faith critics lament. The real problem is that for consent to be as meaningful as we like to believe it is, all participants in the agreement must be equally powerful. The language of campus policies tries to pin this down: consent must be “informed,” “voluntary,” “given freely,” “enthusiastic.” But wouldn’t “enthusiastic consent” normally be called simply “enthusiasm”?

The essays collected in Querying Consent variously call attention to situations in which what might seem to be consent could in fact be construed as something closer to coercion—not just in sexual interactions, but in everything from software user agreements to the fine print in authorization forms for medical treatment. “We do not speak of consenting to what we would have done anyway,” writes the philosopher and academic Karmen ­MacKendrick in her contribution to Querying. “Consent” is a word for permission granting, a cousin of compromise and acquiescence. We consent to what we’re willing to allow, such as letting a friend borrow our car or a stranger pet our dog, and we say yes with varying degrees of comfort. (Saying no doesn’t save us from discomfort, either; navigating another’s desire is frequently an imposition no matter what tack we take.) If I’m the one eager to pet a stranger’s dog or borrow a friend’s car, I’m not the one who agrees to do those things. The act of consenting—assenting, tolerating—is that of the less motivated party, quite possibly the party of reservation, disadvantage, and reluctance.

It’s one thing to feel annoyed by a stranger delaying your walk, or to be nervous about a friend’s careless driving. It’s quite another to be maneuvered into unwanted sex, experimental medical care, or forfeiting your right to privacy, not only because of the steep toll it takes directly but because the transaction rewards and fortifies dominance. The people and companies who are positioned from the start to extract a yes leave the transaction wielding more power than they did before. If you believe that rape culture has colonized at least as much of our psyches and social habits as has, say, Facebook or Apple, then granting sexual consent can be as empty a gesture as accepting the terms and conditions of some new piece of software. We didn’t set the terms, there’s no room for negotiation, and we have few resources with which to forge our own alternatives.

Sexual consent apps make this analogy an unfortunate reality, and the ramifications are grotesque. Such software is designed to mimic a contract, or at least create a history of agreements that can be accessed later, should a legal dispute arise. And though developers pay lip service to improving communication between parties, the apps’ functionality indicates that most are intended as tools for exonerating those accused of assault. No app can prove that users weren’t heavily intoxicated or coerced while answering, and the suggestion that those users will continuously update their entries as the encounter continues—if the app even offers that function (some do not)—is a patronizing fiction. As Fischel writes, “Consent is so often not the remedy for unjust social arrangements . . . but the cause—or worse, the alibi.”

This claim is likely to jar those who have embraced consent as the key to a less sexually exploitative future. Undoubtedly, they are well intentioned; the “The Womyn of Antioch,” the students who wrote the first college guidelines for affirmative consent, in 1991, were not a front for a conservative group with dreams of bolstering the status quo. Consent-based advocacy aspires to correct the misapprehension that anyone, especially a woman, exists in a state of default “yes.” Instead of placing the onus on victims to make their “no” resoundingly known, the thinking goes, we should assign responsibility to the potential rapist, now coded the “initiator,” to clearly solicit the no (or the yes). But again, consent shows its cracks. Are most rapists really just “initiators” who didn’t know better?

With the right social status, even stranger-raping students, especially those who are white, athletes, or both, can pass themselves off as merely confused, intoxicated, or underinformed. Brock Turner, the Stanford undergraduate convicted of sexual assault, used these defenses in his court statement, in which he emphasized his suffering (or, more accurately, his own sense of victimhood) and lamented his “poor judgment and ill thought actions,” as well as having made “decisions while under the influence of alcohol.” “I made a mistake,” he said, this man who spontaneously decided to rape an unconscious stranger after he came upon her defenseless body on campus, a man who stopped raping her only because two other men passed by and intervened. As Turner tells it, because he had no ill will toward the stranger he assaulted, he isn’t exactly guilty; rather, he has acquired a sort of formal liability. “I am the sole proprietor of what happened,” he said, as if the violation were something he merely oversaw. In Turner’s world, rape “happens.” But it happens without a rapist.

A more sophisticated version of Turner’s approach appeared in the official apologies of many high-profile men disgraced in the wake of the Harvey Weinstein revelations. Too canny and too well counseled to deny all charges outright, these men claimed to have no memory or a different recollection of the incidents their accusers described, but pleaded guilty nonetheless, by way of temporary insanity (depression, alcoholism, youth) or a since-corrected misapprehension (of what is permissible in a workplace, or of how the targets of their misbehavior felt about the interest). Poet Isobel O’Hare’s all this can be yours employs the timeless art of strategic Sharpie redaction to bring this dissembling into starker relief. In pages otherwise scored in black, certain words are left intact:

all I see is women attacking me
I ignored reality for eons
anything I might have done is not reflective of who I am

“I just really wanted to erase their words,” O’Hare writes on the book’s first page. “I was reversing what they had done to their victims.” Statements from women attempting to defend abusers receive the same treatment because, in O’Hare’s words, “it is all part of the same system”: the rape system, the culture system. For this reason the speakers are nameless. They are “symptoms of the underlying issue. . . . We are all suffering from this sickness.”

Rape is not an epidemic or even a pandemic; it is endemic, integral to how power functions and how our social arrangements sanction and exacerbate its many corruptions. A fixation on consent keeps us from facing this. Sharisse Tracey’s father did not lack an understanding of consent. Border guards who commit sexual abuse are not unclear on the point, either. Brock Turner was not under the impression that his victim had somehow signaled her interest. These men assessed the circumstances and concluded that they could take what they wanted, so they took it, and they were correct; they could—they can—inflict damage with near impunity. To talk about consent in the face of their choices feels as futile and negligent as fixating on the untested rape kits. There must be a supporting apparatus to make such tools matter, and it seems we’re quite far from installing it.

While writing this, I kept coming back to another one of I Am Evidence’s preoccupations: the serial rapist. The film emphasizes that rape kits are important because they are one of the only tools for capturing the stranger rapist who strikes multiple victims over the course of his “career”—a word that recurs with alarming regularity in this context. (Capitalism’s vocabulary has fully infiltrated our speech, our brains. One of O’Hare’s apology poems reads, “my dick has given me a long and lucky career”; another, “my dick is a professional.” Recall Brock Turner’s disconcertingly comprehensible use of “sole proprietor” to admit that he committed rape.) The serial rapist satisfies our propensity for deflecting attention away from systems by indicting individuals. Like the serial killer and the onetime stranger rapist, the serial rapist is marked as deranged to the point of inhumanity, twisted beyond explanation or remedy, a monster lurking in the dark. It would be oddly comforting to believe that the majority of rapes were committed by a handful of very bad people, people who leave behind proof so that we can track them down. Then rapes could be regarded like tornadoes or meningitis: devastating yet blameless facts of life. That’s more reassuring, at least, than the alternative, which is admitting that the capacity for rape is determined by man-made conditions rather than some inborn evil; that, left unaltered, our culture will manufacture a new rapist for each one we imprison; that some serial rapists are serially raping the same victim, a person who is not a stranger but their child or spouse, and who will never submit her body to authorities for scrubbing and swabbing and photographing—who, after enduring so much objectification, will not consent to turning herself in as evidence.

is a cofounder of TigerBee Press and the author of Prostitute Laundry.

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