After Paris, I didn’t expect to be posting another serious blog so soon, but I can’t not talk about the recent shock so many of us have had regarding Stoya and James Deen.
For those not in the know; on Saturday, porn star and writer Stoya accused her ex-boyfriend and fellow porn star James Deen of rape in this Twitter status:
“James Deen held me down and fucked me while I said no, stop, used my safeword. I just can’t nod and smile when people bring him up anymore.”
There’s a lot I want to cover here but firstly, her profession is irrelevant to this matter. No means no- end of story. Moving on…
Stoya’s twitter status has sparked a wave of solidarity and support from people all over the world- including James Deen’s ex Joanna Angel and two other porn stars who claim he assaulted them too.
Others have argued against her, using two main forms of ‘reasoning’. As they are arguments I have heard a lot when discussing rape, I’m going to talk about the broader picture here.*
*as an British woman living in England, I will talk mostly about UK law.
Argument 1) “Innocent until proven guilty”
This term was coined by English lawyer Sir William Garrow, who died in 1840. It’s generally a good ethic but was never applied to marital rape, which was only outlawed here in 1991!
HOW exactly do you expect somebody to prove their partner has raped them?? I have never heard an answer from the people using this argument. Even if a rape kit shows the presence of semen, the rapist only has to claim that the sex was consensual and it becomes one person’s word against another’s.
This is not Nancy Drew or Poirot; there is rarely a shadowy figure listening from around the corner. There will be no convenient confession found in the rapist’s diary. How then, can there be proof? And without said proof, are we to assume innocence every single time? Are you claiming that marital rape does not exist, or acknowledging that it exists but choosing not to do anything about it or believe anyone who comes forward? Either way, that is despicable.
In almost ANY rape case, it is very difficult to obtain proof- especially if the victim does not come forward immediately. This is historical fact. Lord Chief Justice Sir Matthew Hale from the 17th century said “rape…is an accusation easily to be made and hard to be proved…In a rape case it is the victim, not the defendant, who is on trial.”
Argument 2) “Why is she on Twitter and not in the police station??”
We do not know what Stoya is doing right now. She may in fact be in the police station. Regardless, let me explain why she is using Twitter as a platform.
Firstly, read argument 1) again. It is near impossible to provide proof that Deen raped her. They were dating! Reporting him to the police and taking this to trial is unlikely to result in a conviction. She may well be on her own to deal with this.
Stoya has 226K followers on Twitter. By outing Deen publically, she is inviting others to speak too by giving them the message that they are not alone. I used this blog to out the rapist Shaun Colclough because I knew the word would spread quickly. I didn’t have a shred of proof but after testifying along with his other victims, enough was found to jail him. HOWEVER… even if he hadn’t photographed himself degrading women, he would still be a rapist. Proof or no proof.
Assuming the police are unable to do anything, where else can Stoya turn to ensure her fellow performers are safe and get the message to a wider amount of people? Should she have kept quiet, allowing her rapist to continue harming other people while being hailed as a feminist? When rape is such a hard thing to prove in a court of law, what else could she possibly have done??
Why don’t victims just go to the police, and what can we do to encourage them to testify?
It is a horribly frustrating vicious circle:
Rape happens. –> Victim finds there is not enough proof for a trial- or not enough to convict if there is a trial. –> Rapist is assumed innocent and set free to rape again. –> Other victims are put off even trying to get justice. –> Rape happens…
I struggled encouraging Colclough’s other victims to press charges. I did my best to understand but inside was livid that I was failing. Women I had thought were friends of mine, women who made statements then stopped returning calls from the police, anonymous women posting chilling comments on my blog. Out of around twenty *known* victims, just four of us went to trial, two of us got convictions and I honestly would rather have another round in court than try and persuade another woman to report a rape. Ever.
I am trying to think differently- to recognise that it is the system that needs to change because in its current form I do not believe that the standard practice for rape cases will ever lead to more convictions.
As a society we are slowly destigmatising rape but coming out online as a rape survivor is a very different thing to testifying in court.
I am not a lawyer or a politician. I recognise that my opinion will not change English law and that my suggestions may be unrealistic, but here they are anyway:
1) “Beyond reasonable doubt.”
This is how we get convictions here. We do not need incontrovertible evidence but the jury must be sure ‘beyond reasonable doubt’. Now, when rape (and sexual assault) is usually one word against another, it is very very hard to convince a jury beyond reasonable doubt. So if for whatever reason a rape kit cannot be performed or considered (marital rape for example) we need to provide a different kind of evidence…
2) Character references, for example.
I am NOT saying a conviction should be made solely on character references but that they could be taken into account– considering the whole person and their life as opposed to one specific day ignoring everything else that could support or count against them.
The police could track down and interview previous partners, (possibly without them having to testify in court- see point 4). Has the defendant been reported to the police for assault before? This could apply to domestic violence cases too- the average victim is beaten 35 times before calling the police. (Please correct me if I am wrong but I believe the police are called an average of 7 times before the victim presses charges… IF they do at all). So, reports to the police- even without charges- could be considered.
This could also apply for those worried about false accusations. Has the witness made false accusations before? Yes, I am aware that some (very very few) women DO lie about rape, and it is a hideous thing to do. I support prison for false accusers. HOWEVER… for the people shouting “women lie too”: well, yes, but though 1/4 women will be raped or assaulted in her lifetime, the odds of a man being falsely accused of rape are 1 in 2.7 million. Men are 82,000 times more likely to BE raped than be falsely accused of rape.
But if character references are not the way to go in a case, then why not look at…
3) Previous convictions.
Juries are very rarely given any more information about the defendant than considered necessary to the specific case- so a person with previous rape convictions can stand trial again without the jury knowing that this is a repeat offender! (Colclough, for example. Not only had he raped but he had changed his name and address to hide from the sex offenders register.)
Theft, trespassing, drug offences- they are *generally* not indicators of something hideously wrong in a person’s character. A person ‘in with the wrong crowd’ or stealing through poverty etc can perhaps be reformed. Innocent until proven guilty- as these cases are easier to prove. A rapist, in my opinion, cannot be cured.
In sexual assault and rape cases, I believe juries should be allowed to request information about the defendant’s previous convictions relating to sexual crimes. Rapists rarely have one victim and though that victim may not know whether or not their attacker has been caught before, perhaps they may be more willing to testify if they knew their past would be considered.
Either way, testifying in court is not fun so perhaps victims could…
4) Testify from home
One huge reason many women are afraid to testify (other than the fear they may not be believed without this mythical unicorn proof people keep asking for) is the fear of reliving the experience in a room full of people while being quizzed on it. Yes, there are now video links and screens but even being in court and cross-examined is not a fun thing to sign up for.
Could victims testify from home (accompanied by an officer) or from a ‘safe house’ in their own town, so they aren’t even in the same building as their rapist?
That’s it so far. That’s all I have to offer in my little ‘suggestion box’. That, and the belief that nothing will significantly change for people reporting rape until the system acknowledges that rape cannot be treated like any other crime.
Proof or not, I stand with Stoya.
p.s. well, that was an essay. Have a leaf with a dewdrop on it.