Monday, April 03, 2017

On "Legitimate" Rape. Examples from Canada, Finland, Mexico and the US.


I have the computer equivalent of scrap books for all the topics I might want to write on.  They contain many times the material that ultimately finds its way into my published writings:  Other references to verify what the ones I post say, news about all sorts of events that make that tiny click sound in my brain or turn on the creativity faucet/tap,  items that I feel I should write on but never will, because I don't have the expertise (climate change) or fear the responses (any intra-feminism fights).

Every once in a while I start a new scrap book and this is one of the times.  Before I put the old one in the attic, I quickly scan the newest pages to see if it covers anything that deserves more daylight.  The topic of this post comes from such gleanings.

That topic is one of the unintended consequences that might follow when a victim or an alleged victim of sexual violence decides to take the case to court.  It may not be suitable reading for all.

A Sampling of Cases

1.  In Canada, in early March, a Canadian judge wondered aloud whether an alleged rape victim could have "just kept her knees together," as a form of defense against rape.  The judge has since resigned, after a judicial panel called for him to be removed from office.

 2.  In Finland, also in early March, a court sentenced a 22-year old man to three years' incarceration for having had repeated sexual intercourse with a 10-year old girl*.

His sentence was not for rape, as that concept is defined in the Finnish antediluvian law**,  but for aggravated sexual exploitation. The court argued that the defendant did not use violence or the threat of violence, and that the prosecution could not show that the intercourse was against the girl's will.  Ergo, not a rape!

Legal experts are not happy with that sentence and wish to see it appealed.

3.  In Mexico, in late March, a judge argued that a 21-year old man participating in a gang rape of a 17-year old girl by penetrating her vagina with his fingers and by touching her breasts was not guilty of sexual assault because "he didn't enjoy it" and thus didn't have "carnal intent."***

The judge has been suspended because of this ruling.

4.  In the United States, in late March,  a 15-year old girl was sexually assaulted by as many as six boys or men, and the assault was posted on Facebook.  When news of the attack spread:

...people began ringing the family's doorbell and coming around the house in a menacing way, the girl's mother has told the Tribune, and police described a campaign of social media bullying against her. The taunts prompted authorities to relocate her family to another home, which police spokesman Anthony Guglielmi described as "a safe place."

The Common Threads

These cases share certain similarities:  Unintended negative outcomes for the victim who went to court in all of them, and a certain kind of judicial tilt which benefits the defendant in the first three cases.

But there's also a positive thread running through all these cases, and that is the public condemnation or at least public criticism of that judicial tilt I mentioned and of the disgusting behavior of those who menace or bully a frightened and vulnerable teenage girl after a shocking experience.

What ties that last case to the first three is that the bullies (may they get butt boils) in the last case are like the judges in the first three cases in assessing which rapes are legitimate.  This is the false rape accusations trope rearing its ugly head in situations where it is clearly not applicable.

To give you a flavor of how that treatment might feel in a slightly different context, have this video:


*  I recently read about the Finnish rape law and how it has changed over the years.  The best way for the original law to make sense is, ironically, to imagine that it was written by some guy who was really worried about false rape accusations, and who therefore decided that the best way to avoid those was to make the law so demanding for the rape victim that very few actual rapes would pass the legal muster.  The victim had to prove that she had screamed for help, her body had to show severe signs of physical violence etc.

Over time the law was amended, but it still doesn't look unbiased to me.

For example, ameliorating factors can include the defendant having a full-time job or not having been caught for rape before (the "first time" argument), and though the more recent versions of the law no longer give quite so many outs for rapists,  the legal definition of rape itself is narrower than the one in the US:

The Finnish law distinguishes between four forms of sexual violence: sexual exploitation, forced intercourse, rape and aggravated rape.

Forced intercourse, for example, is not viewed as rape,  despite the fact that it includes removing the victim's clothing and holding her or him down (or pushing or tripping the victim!).  As long as the court decides that "legitimate" violence or threat of "legitimate" violence was not used, one is not raped but forced into intercourse. According to one source, the sentences for forced intercourse tend not to result in incarceration at all but to probation.

Keep that in mind when I tell you that in 2012, 60% of sentenced rapists got prison sentences of varying length (with an average sentence of 27.1 months for rape and 49.2 months for aggravated rape).  The remaining 40% were given conditional sentences. Those figures do not include people sentenced for forcing intercourse or for sexual exploitation.

** Here is my rough translation of the relevant parts of the linked article:

The lower court has sentenced 22-year old Juusuf Muhamed Abbudin to three years in prison for aggravated sexual exploitation of a child.  He had arrived in Finland as a refugee, had met the girl in social media (Instagram) and had had intercourse with her several times.
Prosecutor Leena Koivuniemi had asked the defendant to be also sentenced for aggravated rape, but the court ended up rejecting that argument, because it was not possible to prove that the intercourse had taken place against the child's wishes.
The man was sentenced for sexual exploitation, defined as a situation where the perpetrator exploits the victim's unconsciousness, illness or her or his general inability to resist due to specific vulnerabilities.  He was not sentenced for rape, despite the fact that the sentence for rape would have become aggravated rape if the victim is a minor.  It's possible that the prosecution did a poor job in this particular case.  But there are other explanations, having to do with crappy laws and, perhaps, with cultural concerns.

***  It's possible that the motivation of the judge in this case had to do with protecting the scion of a wealthy family.  But everyone in this particular case seems to come from the upper social classes.