[content note: rape, rape apologia, victim blaming]
In a recent criminal case in Washington state, a young woman was kidnapped by her partner and forced to perform sexual acts for one of his friends. Through the course of the case, she has been uncooperative with the prosecution, refusing to show up to several meetings. The prosecution worried that she was going to skip out on testifying altogether – so they arrested her and placed her in county lock up for a night to ensure they could find her when it came time to testify.
The actions are horrifying enough, but then, earlier this week, feminist author and writer Amanda Marcotte managed to take things a step further with an op-ed published in Slate. She argues in the piece that locking up victims of rape is a price we should be willing to pay in order to get rapists off the street. She writes:
The sad, unavoidable truth is that we have to decide what's more important to us: putting abusive men in jail or letting their victims opt out of cooperating with the prosecution as they see fit. Always erring on the side of victim sensitivity means putting some very bad men back out on the streets, where they will likely attack someone else. If that's the price that you feel is worth paying, OK, but it's also understandable that prosecutors might try to do everything within their power to convict a guy who likes tying women to chairs and assaulting them.
In response to the Twitter critique, Marcotte demanded that we only address what was said in the piece and not extrapolate it out to potential consequences of rhetoric – a move that seems quite at odds with basic understandings of feminist criticism. There must be allowances for extrapolation of a thesis into larger societal ramifications – refusing to look at ideas within a vacuum is part and parcel of solid feminist criticism. It must be noted that rape victims may be less likely to report if they believe they could get locked up for being reluctant to testify. This is one of the many ramifications of Marcotte’s stance.
What struck me most about Marcotte’s stance is her seemingly unwavering faith in the justice system – to the point where an example of the justice system NOT working by jailing a rape victim is evidence that we must have further faith in the system to convict rapists. It is using evidence of a screwed-up system to compel us to have faith in that system.
By most estimates, only 3% of rapists ever see jail time, and even in cases that are seemingly open and shut frequently go off the rails, resulting in mistrials and failures to prosecute. This is, sometimes, because victims refuse to testify in open court because giving testimony is frequently scary and traumatizing. I’ve frequently thought that if I were in such a position, I would have a lot of trouble forcing myself through the testimony, even with the knowledge that it could help convict the rapist. And that’s assuming that the court system isn’t already hostile to victims of rape.
A friend of a friend went to police recently to report some abuse a family member had done to her when she was in her early teens. The police officers asked her what pajamas she was wearing when the abuse happened. And from every conversation I’ve had with victims who attempted to report or successfully reported, this sort of treatment is not outside the norm. Rape victims already have numerous barriers to reporting, and being willing to reporting requires a faith in the court system that is often not justified.
Let’s use a limited analogy here. Say you live in an area that has a lot of crime. With every robbery that happens, the police ask why you chose to live in that area and whether or not you displayed your seeming “wealth” around town. Frequently, victims of robberies in your area lose friends and family for reporting the crimes – it must be their own fault in some way, naturally. And the court system rarely manages to prosecute the robbers successfully even with physical evidence and eyewitnesses. And even if you do get a conviction, the person who robbed you might get a suspended sentence or be paroled really quickly. They’d be back out on the street quickly anyway, so what good does it to do to report them? Do you really want to put yourself through hell in the off chance that the dude would get longer than a couple years?
This is the situation a lot of rape victims face. They face a justice system that hardly ever gets justice for them. Often, reporting means a secondary trauma. If you don’t report, you get guilt trips about letting “the bad guy” go free. If you do come forward, you face a low conviction rate, berating in the public eye, and now, possible trauma at the hands of a prosecutor who just wants to win his case.
To have Marcotte’s view of the justice system, one has to believe the system is capable of delivering justice for rape victims. Her view is, in the end, an intensely naïve view of what the court system is capable of. In the end, support for the compulsion of rape victims’ testimony through the threat of jail time and contempt of court charges reveals a utilitarian view of justice that thinks working within the state-sanctioned system is the only way to prevent violence. Such a perspective ignores the violence perpetuated by the state itself and demands that victims of rape be subject to further violence for a potentiality of greater good.
Victim sensitivity should not and cannot be sacrificed in the pursuit of "justice." Such a thing is no justice at all, but a warped version of "winning" against amorphous ideas of crime and "bad guys." Justice, if we truly wish to pursue it, must include the restoration of agency to victims of these crimes, and must be willing to hold them in high-enough esteem that we sacrifice a win in a flawed justice system in order to respect the victim wholly. When it comes to anything, true justice requires that we side with the marginalized, that we let them make their own decisions, and that we step back for a minute and not let our pursuit of revenge overtake their right to healing.