A new UK book about sexual assault reveals some judges’ disturbing if not particularly unexpected views about victims of sexual assault and their personal role in “interpreting” sexual assault laws.
Judges have undermined a law intended to stop defence lawyers cross-examining women in rape cases about their sexual history, by continuing to insist on their discretion to allow it, a new book discloses.
Interviews with 17 judges in London and Manchester found that some insisted they still had a wide discretion to allow questions on sexual history, although the law was changed in 2000 to impose severe limits on questioning.
One judge described the provision as “pretty pathetic because it’s get-roundable”.
Another said: “I’m not one for being unduly fettered. I’ve been appointed to do a job on the basis that I have a certain amount of judgment, and to be fettered or shackled by statutory constraints I don’t think helps anybody.”
In other words: “I’m a judge goddammit. That means it’s my job to judge. Who said anything about the law?” Or, perhaps: “Oh yeah, well I judge that your law is stupid! In your face!”
Silly me, I always thought that “law school” centralized the idea of “the law.” But then again, I also assumed that in order to graduate from law school, let alone become a judge, one would need to have at least a basic grasp of logic, reason and ethics. Clearly, I’ve misunderstood something. I was under the impression that the job of a judge in a jury trial is to “judge” whether or not proper, legal and fair court proceedings are being followed, not to “judge” whether or not an accuser is chaste enough to deserve the legal protection to which she is entitled.
After all, it couldn’t be possible that people are willing to make really stupid arguments that make themselves look like total morons so long as it means their position of authority within the social order is upheld. Could it? I mean, if that were the case we’d have men running around arguing that rape is the fault of women because men are immature, untrustworthy, sex-crazed lunatics who can’t be held responsible for what they do with their penises when they see a woman in a short skirt. Oh, wait. My bad.
Now, 17 judges don’t constitute a proper survey. But the anecdotal evidence that the interviews supply is frightening. Also, though the data from their further research is not published (I guess they want you to buy the book), large numbers of future judges and lawyers see things similarly. And surprise, surprise, so do jurors:
Sexual Assault and the Justice Gap: A Question of Attitude, to be published by Hart Publishing on April 15, puts much of the blame for the low conviction rate on myths and stereotypes about the crime.
The authors say the entire justice process is affected, from the initial decision to report the rape to police, through to conviction or acquittal by a jury.
The authors – Jennifer Temkin, professor of law at Sussex University, and Barbara Krahe, professor of social psychology at the University of Potsdam in Germany – found stereotypical views about rape were widespread among potential jurors.
Their survey of more than 2,000 members of the public aged 18-69 showed people tended to blame the woman for bringing the attack on herself, see a case where the man had sex with a woman without her consent when she was drunk as not a “real rape”, and downplay the seriousness of having forced sex when the perpetrator was the woman’s former partner.
The views were also found to be common when the authors outlined a range of rape scenarios to British undergraduate law students in their final year and a group of British graduates doing professional law training, the lawyers and judges of the future.
Well that’s hardly reassuring. It’s also exceedingly important; we’re often led to believe that if we just wait things out, the younger generation will fix everything with their fresh ideas. While ideas do of course evolve naturally over time, this isn’t always a swift process, and it’s never a magical one. It takes work. The “younger generation” still grew up in the same society, surrounded by the same prejudices. Waiting for the old guard to retire is not only a lazy and unacceptable solution — it’s not a solution at all.
Because judges are people. And like all people, they hear whatever they want to hear:
A high court judge told the Guardian that the extent to which lawyers should be allowed to ask questions about a woman’s past sexual behaviour was still “a big issue” for judges.
The limits on questions about sexual history came into force in December 2000. But in 2001 a case called R v A went to the House of Lords, in which the defendant claimed that he had previously had sex with the complainant and that this was relevant information for the jury in deciding whether she had consented on this occasion.
The law lords’ judgment gave judges only slightly more leeway to allow questioning in such cases, but the authors say some took it as having completely restored their discretion. Six of the 17 judges interviewed were “plainly undeterred and, regardless of the new legislation, were not prepared to forgo their discretion in these matters”, they say.
I file this under “authority without effective oversight always preferences (white, straight, Christian, cis, able-bodied) men.” And the file is getting pretty fucking full.
If you think that this is a purely British phenomenon and that American judges, lawyers and juries are somehow different, at least your delusions are pleasant ones. But they’re delusions all the same.