[Warning: really long post ahead.] Blue Milk (yes, I do read other blogs, sorry for being repetitive) wrote a great post the other day on the dangerous language of victim blaming that is so evident in media reporting of rape cases. In response to her post some guy decided to chirp in with a helpful 'distinction' between blame and responsibility - arguing that while victims should shoulder none of the blame, some of them ought to bear some of the responsibility for rape. You know, if they drank too much or whatever...
In response Blue Milk wrote another post in which she tried to explain why this was so very unhelpful, particularly given the fact that our culture already places far too much responsibility on women in terms of expecting them to ensure that they protect themselves against rape. It was a great post – ultimately concluding with the statement: “Rape stops when rapists stop raping.”
However, disturbingly, the guy in question didn't appear to get the point at all, because he came back (over and over again) in the comments with that same line about distinguishing between 'blame' and 'responsibility' and with the argument that responsibility can be accorded to victims of many crimes when they fail to behave in a responsible manner...
I read through the comments this morning and felt compelled to add another, but then it got ridiculously long and so I thought that it might make more sense to post it over here. Excuse the slightly tangential nature though. You see this guy’s comments and the all-too-common attitude that they represent made me think about the way in which this gendered double-standard of ‘taking responsibility’ plays out in the courts and how much it disadvantages women both in their roles as victims and even in their occasional role as the perpetrators of violent crimes. And in the interests of moving away from the issue of rape for a moment in order to take a broader perspective (and to demonstrate how this attitude permeates more than just the issue of sexual assault) I thought that I would highlight the example of homicide.
Under the common law serious crimes, including physical assault (or battery), rape and murder, a perpetrator's level of responsibility for the crime can be diminished where the victim is found to be partly responsible. This can happen when the perpetrator successfully makes use of the laws of provocation and self-defence (or diminished responsibility).
Unsurprisingly, when you know anything about our culture and our legal system, these laws have historically been developed only to take into account the responses of ‘the reasonable man’ (which should actually read ‘reasonable white man’) - meaning that they are designed around scenarios like a man being provoked into a fight or forced to physically defend themselves in the heat of the moment. They have traditionally failed to take into account the very different experience of women who are usually not physically capable of defending themselves in a one-on-one fight with a man, etc.*
The impact of these laws on women has been incredibly unjust. As just one of many possible examples, let me explain how this has affected women who have found themselves trapped in domestic violence situations.
In the early 1990s Patricia Easteal did an amazing study called "Killing the Beloved" [pdf link here] in which she researched a large number of cases in which one partner of a heterosexual couple had killed the other. In the overwhelming majority of these cases their had been an existing situation of domestic violence. In almost every single one of these cases the man had been violent towards the woman, while occasionally this violence had been reciprocated.
Where the man had gone on to kill his female partner (and this represented over 80% of the cases), it was often because he had caught her in the act of trying to leave the relationship or he was furious with her for having left him (combined this made up around 25% of the cases). In other cases it was simply an escalation of his previous violence.
"The vast majority of male perpetrator killings were preceded by histories of physical and emotional violence. The latter was exemplified in the ownership-type of jealousy which was acted out in some of the relationships and through the final act. Both physical and psychological battering did not usually cease in these cases when the couple separated; in fact at least the latter appeared to become greater."
In many cases the man was able to successfully use the law of provocation to diminish his responsibility for having killed his female partner (either in the charge classification stage or during sentencing). Here are a few examples of some of these cases:
1. In Easteal’s ‘Project case number 32’ the male perpetrator killed his ex-partner due to his jealousy over her new relationship. He saw her and her partner together, went inside, got a rifle out of the safe, and shot both her and her partner. He was able to plead guilty to the lesser charge of manslaughter by relying on the law of provocation. The words of the judge in this case highlight the absurdity of distinguishing between blame and responsibility: "Provocation in this case is relevant to the state of mind and the lack of control by the accused rather than any blameworthiness of the victim."
2. In Easteal’s ‘Project case number 25’ Fred killed his ex-wife Maria during a custody dispute. Fred was allowed to plead guilty to a reduced charge of manslaughter (rather than murder) because he was 'provoked' by Maria - both because he was jealous than she had found another partner and because she had requested greater access to their daughter. It's worth noting that Maria was from the Philippines (where Fred had travelled to 'get a wife'). In analysing the sentencing remarks, Easteal notes: "The victim came across in the judge's comments as a manipulative person from another country who had harmed a naive Australian male."
3. In Easteal’s ‘Project case number 72 Tim killed his partner Samantha "by placing a rifle under her chin and pulling the trigger." (She was on the phone and he thought that she was making a drug deal.) His sentence was reduced to take into account the fact that he had been ‘provoked’ into murder by the fact that his partner was a drug addict.
"The defence of the prisoner was that he was provoked by Samantha's drug addiction. The judge expressed his agreement that the deceased had been heavily addicted to drugs, 'The prisoner said that living with a junkie was hell'."
Easteal concluded: "Once again the character of the victim appeared to play a role in the judge's decision making. She had been a drug addict, not a 'virtuous' and 'good' woman."
4. In Easteal’s ‘Project case number 59’ the male perpetrator killed his partner (who was 8-months pregnant) by stabbing her 39 times. He was able to plead to the lesser charge of manslaughter rather than murder because he had been 'provoked' by the victim telling him that their 2-year old child had been fathered by another man. (Just as an aside: he also killed the 2-year old child.)
5. In Easteal’s ‘Project case number 64’ the male perpetrator killed his partner by stabbing her 12 times. He was found guilty of the lesser charge of manslaughter because he had been 'provoked' by his partner's infidelity. The judge commented:
"It was your wife who pursued him and that pursuit culminated in a brief adulterous encounter. I accept and I find that you were angry and humiliated by this."
He went on to describe the defendant's character and background as “impeccable, with an honourable and distinguished career in the army.”
In looking at the sentencing remarks, Easteal concludes that overall:
"although a few males were found guilty of murder in situations where their wife or estranged wife had been less than the cultural ideal of female virtue, overall, the nature of the victim did mitigate the sentence. Throughout the remarks, there was a clear indication of just what that ideal involves or more accurately, what it is not. Leaving one's husband, having an affair, not taking care of the child(ren), nagging one's husband, lack of appreciation for the husband's work on behalf of the family were all not manifested by the ideal woman. Thus, one of the few consistencies in sentencing and/or determining whether to allow the defendant to plead down to manslaughter was the nature of the victim and her degree of compatibility with societal norms.” [emphasis added by me]
This is the result when you try to accord some of the 'responsibility' to the victim of a crime. The result is that the perpetrator is accorded a diminished level of responsibility because some of it has been transferred to the victim. Now the commenter on Blue Milk’s post (and people who share his attitude) might think that they are not making a legal argument. They might think that they are just arguing for an ethical standpoint or for 'common sense'. The fact is that the law is entirely shaped by the attitudes of society (particularly its most powerful members - white middle class guys like the commenter in question), especially when these crimes are tried under the jury system.
Attitudes that accord some of the responsibility to the victim are the reason that victims get put on trial in rape cases and the reason that so many rapists receive relatively low sentences. They are also fundamentally sexist, no matter how much these people claim that they also hold men partly responsible when they act in a way that makes them more likely to be a victim of crime. Considering the relative positions of men and women in terms of their basic levels of vulnerability to crime, it stands to reason that it is impossible to be remotely equal when you try to dish out responsibility for someone allowing themselves to become vulnerable to crime. Furthermore, when you analyse the criteria being used to judge people's relative levels of responsibility, you realise that it is a criteria that is completely based on the 'male norm'. For men, it takes an awful lot to stray from this norm into 'irresponsible' territory, whereas for women it is virtually impossible to live up to the standards imposed. In order for female victims to be considered blameless they have to act in accordance with society's idea of the ideal woman. And even then they are far from safe.
Our culture already accords far too much responsibility to female victims for crimes that are committed against them. By and large the main action that made them vulnerable to those crimes was the 'irresponsibility' of remaining female within our patriarchal culture. At first blush it might seem reasonable to point out that there are some actions that women can take in order to reduce their risk of being raped (or, less tactfully) that some rape victims should bear some of the responsibility for their crime. However, the fact is that these comments and the attitudes that underlie them are contributing to the culture of holding women responsible for the completely unacceptable behaviour of men, and in doing so they are directly contributing to diminishing the responsibility that is accorded to those men who commit crimes against women
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Just to emphasize the incredibly gendered dimension of societal attitudes around victim blaming, what do you think happened in those cases where the female partner had killed her violent male partner?
Easteal found, "Females who kill their partner usually do so to stop a long, and frequently escalating pattern of violent conduct against themselves and in some cases their children." In many case she killed him because she believed that it was her only option for survival. You may ask, why didn't she just leave? But please re-read the section above where it documents the fact that many female victims are killed by their partners precisely because they were trying to leave or had left. This is a well-founded fear of many victims of domestic violence.
"The female offender homicides were also almost all preceded by the victimisation of the women in their homes and were generally precipitated by the victims at (or near) the time of the killing."
Additionally, you might argue that these women should have used to the law rather than 'taking it into their own hands'. However, in an overwhelming number of the cases described above (where the female was killed by their violent partner) they had attempted to use the law to protect them (either by obtaining an AVO or reporting previous incidences to police, etc) and in all of those cases the law had utterly failed to protect them from their partners or ex-partners. (And then there are all the other well-documented reasons why it is so difficult for victims of domestic violence to leave the relationship, including issues of economic dependence, fear of losing custody of children, lack of social support, family pressure and the impact of ‘battered women’s syndrome’, etc.)
Now, you'd think in these situations that the female perpetrators would be able to successfully use the law of self-defence or provocation. After all many of them had a well-founded fear of being killed by their partners (and in some cases they had just found out that their violent partners had been raping their children), and surely being regularly subjected to verbal and physical assault ought to qualify as provocation (especially if nagging does!). Umm... no, that's where you'd be wrong.
Here are just a couple of samples of what the judiciary think about this argument:
“What has been made clear in all of them [prior cases] is that matrimonial discord, even violent discord such as was exhibited regularly in the present case, can never be an excuse for the victim to take the life of the aggressor.”
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“It has been made very clear by the courts that the taking of a human life, even within the context of domestic violence, will not be viewed with leniency. Not even extreme domestic discord can ever be an excuse for the victim to take the law into her own hands and to extinguish the life of the aggressor.”
In almost every case the female perpetrators were not able to successfully rely on either the law of provocation or self-defence because these laws only apply when you act in the heat of the moment. For provocation your blood needs to be boiling (so to speak) and for self-defence you need to act while under direct physical attack.
This makes sense for men. If another man provokes you, or they are attacking you, then you are capable of fighting back on the spot. However, if you are a female, then frequently you will be at a serious physical disadvantage. Fighting back on the spot is likely to get you killed (see above). So, the only viable option available to you is to continue to put up with the abuse (and, in many cases, wait to be killed yourself) or to plan your attack more carefully. You need to attack while your violent partner (who has, perhaps, threatened to kill you if you try to leave, etc.) is facing the other way, sleeping, or passed out drunk. Or you have to poison him. However, if you do any of these things then you are 'acting in cold blood' and therefore are less likely to be successful in using the laws of provocation or self-defence to diminish your responsibility for the crime of homicide.
Self-defence is particularly difficult for a woman to argue successfully:
"Both in the US and Australia, there are three components of the self-defence law that may be problematic for battered women who kill: requirements that the threat was imminent, the responding amount of force equivalent, and the obligation to retreat or try to escape from an attack. The perception of imminence and severity of the assault plus the individual's perception of how much force is requisite to counter it must all be reasonable."
Additionally, any successful use of the law provocation to reduce your charge from murder to manslaughter may actually lead to a woman receiving a longer sentence, as it will be concluded that it strengthened their intention to kill.
Take for example the case of Judy who had experienced years of severe violence from her partner, Nathan, and eventually killed him by grabbing a rifle, closing her eyes and shooting:
"Judy had been anally raped a number of times by Nathan and thought he was about to do so again. Further, he had threatened, according to the judge's remark, 'that she would not leave the house alive if it was the last thing that he did'"
Judy was still charged with murder, found guilty of manslaughter, and received a custodial sentence of 2.5-3.3 years.
Or take Sue's case, where the judge found:
"There was therefore clear evidence of cumulative provocation in the face of prolonged physical and emotional abuse and of immediate provocation arising out of the events of the night before the killing during which she was struck over the head, abused, locked in a cupboard . . . urinated upon . . ."
However:
"The taking of human life is the most serious of all crimes . . . on the other hand it is quite impossible to overlook the extreme violence inflicted and the fact that both an axe and knife were used on the deceased while he was lying in bed."
Sue received a minimum custodial sentence of 5 years.
*[I should note here that this situation has been partly ameliorated over the last 15 years and a good deal of the reason for this has been the impact of Easteal’s study.