Sexual violence

I didn’t want to write this, but it was inevitable that I would. I have a form of OCD that makes me obsessed with sexual violence. I am fascinated, I always have been, by crime, punishment, redemption and moral alienation. I am a survivor of sexual violence. Finally, I am with lifelong firmness, a member, if not always in good standing, of the political left.

The left has accepted -implicitly or explicitly, sometimes partly and sometimes wholly- the premise that sex crimes represent a form of otherworldly evil categorically different from all other forms of evil. I reject this premise wholly. This essay is about that rejection. Sexual violence is terrible beyond imagining; it is not alone in this- many kinds of crime are. Sexual violence varies greatly in its motivations, effects and degree of culpability, just like every other category of crime.

A few days ago, I listened to some people talking in a coffee shop. They agreed among themselves that all <18 criminal records should be sealed except for sex crimes. I’ve encountered this view before. A few years ago, I was very disappointed to discover a journalist on the left I otherwise have a lot of respect for was defending her work, trying to name and shame some 17-year-old rapists. My view, for what it’s worth, is that all crimes committed by children should be sealed. I am troubled by what seems like the increasingly popular idea that sexual violence offences should be exempt from the normal civil liberties procedures. This seems to me downstream of a broader idea- that sexual crime is incomprehensibly worse than other kinds of human misconduct. Sexual crime is awful, and it is awful in a distinctive way, but many things are awful in a distinctive way.

The reason we seal the criminal records of children is that we don’t believe they are capable of committing crimes with the clarity of will that justifies altering their lives forever. At least that’s the rational reason to seal the criminal records of children- if the idea is that they’re more reformable, that’s probably not true- most evidence suggests child criminals are empirically less reformable than adult offenders- more like recidivate. Nevertheless, we take a principled stand that they are simply not capable of the kind of agency that should mark someone forever. If they were capable of that kind of agency, then we should let them vote, leave home, etc.- but we don’t. There is no reason to think that as a crime becomes more grave, the capacity of a child to truly understand what they are doing as a fully developed moral being increases- on the contrary, if anything, the opposite seems more probable.

The best evidence tends to suggest that sexual criminals are not especially likely to reoffend, relative to other types of criminals- although these things are difficult to measure.

When I was raped, it happened like this. We started having consensual sex. I said, “Please stop.” I said it clearly. He didn’t- saying “I’m almost finished”. Honestly, I think the idea that what he was doing was incredibly serious never even occurred to him. Make no mistake, what he did was incredibly serious, but I don’t think it was, for example, more serious than, say, getting drunk and punching someone at random because you want to start a fight. I recognise that what happened to me was in some sense, ‘on the low end’ of the rape spectrum, but that itself is part of the point. Sexual violence, just like any other crime, comes in numerous different forms, degrees, etc, something that treating it like an alien horror occludes.

Treating it like an alien horror has another disadvantage. Precisely because of the aura it has accumulated, people have trouble recognising it. I think the guy who sexually assaulted me might well have trouble recognising what he did for the following reason: Rapists are horrific monsters. I’m not a horrific monster; therefore, I can’t be a rapist.

Part of what it occludes, I think, is just how common this stuff is. I’ve been groped on the genitals twice, and sexually harassed once, and that’s just by women. Serious incidents in my life involving men must number a dozen or more. Even the self-report statistics on perpetration - groping, harassment, sexual assault- even among women- are frightening. Keep in mind that self-report is riddled with people rationalising away their own behaviour, selectively forgetting, thinking ‘they don’t mean the sort of thing I did’ or outright lying.

Feminists quite rightly suggested that we don’t take sexual violence seriously enough. I would suggest that there is also a kind of non-seriousness in treating sexual violence as an alien evil, wholly unlike other forms of human selfishness and cruelty. The seriousness we need is a down-to-earth seriousness, not melodrama. Sexual violence is a widespread, serious social problem. There’s a tension here because, yes, ultimately, yes, I do actually agree, sexual violence is a form of cosmic horror, but in the same sense that all human wrongdoing is. Sexual crimes are grave, but treating them as wholly distinct distorts our vision in all sorts of ways.

Some case studies

We are in the United Kingdom a few years ago. A law is about to be introduced banning the sending of intimate images of oneself to someone without their consent. A journalist writes on Twitter that he has received hundreds of unsolicited genital pics. It seems odd to him that those people would, on this reading, be worthy of collective decades in prison.

There’s a lot we could say here. Gay guys shouldn’t send dick pics without having reason to think they’re wanted. The meaning of an unsolicited dick pic sent by a gay guy to a gay guy is certainly different from the social and psychological meaning of an unsolicited dick pic sent by a man to a woman. For one thing, there are just lots more of them, and a sense of different norms. If we are uncomfortable at the thought of silly gay louts, without malice and thinking they’re doing someone a favour, going to prison or being registered as sex offenders, then let us be uncomfortable. We must wrestle with the task of simultaneously (1) working as best we can toward everyone’s safety while (2) ensuring no one ever goes to jail for an act that isn’t truly wicked.

I don’t have any easy answers here- clearly, some straight men use cyber flashing deliberately to upset and startle women. Presumably, some straight men have fundamentally naive ideas about what they’re doing when they engage in cyber-flashing- assuming it’s fun and flirtatious because that’s how they would feel if the woman they were texting with did the same thing back to them. These are the conversations we should be having. Instead, Twitter (back when it was much more left than it is now) collectively yelled at the journalist. They claimed he must be a megalomaniacal liar for claiming he’d received hundreds of genital pics [forgetting about the existence of gay men and assuming he must be talking about women sending him pics of their nether regions]. Questions about people’s lives were being weighed; someone had chimed in with his (interesting) personal perspectives. The response, in which a lot of left-wingers, I’m sad to say, participated, was to scream abuse at him. His instinct to say “whoa- wait a minute- let’s carefully consider edge cases” was seen as an attack on the sacred.

In the jurisdiction I live in, a law is about to be introduced making it inadmissible to argue for the mitigation of a sentence for a sexual offence against a child on the grounds of prior good character or references. The law has been, from the beginning, supported most strongly by left political forces.

Now, the first thing to note is how imprecise this is as a matter of justice, because, strange as it is to say, not all ‘sexual offenders’ are Sexual Offenders. Unbelievably, some cases are not what they look like. I think about three people when I read this, both cases from the jurisdiction I live in. One was a fellow who had been sexually assaulted as a child. As a result, he began a crusade as an adult to report illegal material he found online. He deliberately sought it out and reported it anonymously. Eventually, he must have tripped over some wire, was prosecuted and convicted. His prior good character was, naturally, a large part of why he wasn’t given a prison sentence, and I think that was an entirely just outcome given the circumstances of the case. The second is the case of a man from a non-English speaking background who, upon coming upon a depraved video online. He sent it to 150 Facebook friends with a message explaining that people needed to be so careful with their children, in order to protect them, because there were a lot of sickos out there. Obviously, this was a stupid, destructive thing to do. Nevertheless, because of the lack of malicious intent combined with prior good character, the offender was not given a prison sentence. Again, this seems wholly appropriate to me. The third is the case of a mentally delayed 18-year-old who entered a relationship with a 14-year-old. This was a serious instance of wrongdoing, but one that the court found quite properly did not merit a prison sentence, given A) the offender’s intellectual disability B) the offender’s youth, C) the similarity in ages and D) once again, prior good character. This, again, seems to me just.

It is quite possible that one or all of these people would be sent to prison under the new law, and I think that’s appallingly sad. If a single person who shouldn’t be in prison on the basis of the known facts goes to prison because of how we have drafted the law, that is abominable. We are all culpable to the degree we knew and did nothing.

But even if we could somehow immunise these cases from the law change and focus only on cases of genuine sexual depravity, I don’t see why the absence of prior crimes and the presence of prior good deeds have no weight. If a murderer never committed any prior crimes and worked in a soup kitchen, that is counted in his favour. Perhaps there are reasons it shouldn’t be, for does it really change the nature of the murder that he did this? But it has been the unanimous practice of basically every judicial system to treat it as if it is a mitigating factor, and I see no reason this should be different for rape or other sexual crimes. Both are immensely selfish, immensely destructive and terrifyingly human acts. Because of the awful moral complexity of humans, neither act vitiates the possibility of some good attributes existing within the perpetrator.

The only way I can understand this juncture- effectively trying to nullify any means of defending the defendant- is that we are in a situation where, for some people, offering any defence intended to reduce the culpability of the act is thought to be disrespectful. It’s rather like talking about how Hitler liked dogs during a discussion of the Holocaust. The psychological logic this sets in motion, I’m sorry to say, is that these people should either be killed or imprisoned forever. If there is nothing that can mitigate or limit the badness of a particular crime, if raising a defence or trying to haggle down a sentence is disrespectful, then the only psychically tenable conclusion of any sentencing is forever, or death. Some people believe that, I think they should come out and say that honestly.

There’s a natural logic here that one usually sees among conservatives. How could one ever say that there had been enough punishment? The twentieth year in prison didn’t bring the murdered dead father back to life, nor will the twenty-first- why should the stay in prison cease? Likewise, the man who mutilated someone in a blind rage. He chose to do that. At what point will his stay in prison mean that he is no longer the mutilator of an innocent man? The seventh? The eighth? It is very easy to begin to think that nothing can ever be outweighed. Do not, then, begin down this path. Don’t conceive of punishment as an attempt to ‘undo’ crime or cancel it out symbolically, because there can be no satisfaction here.

We should do what we can to protect victim-survivors during criminal cases, while respecting the rights of the accused. I am convinced, however, that trying to make criminal trials a primary site of vindication and healing for victim-survivors is misguided. For one thing, it will often simply be impossible to prove that someone who is guilty is guilty beyond a reasonable doubt. The answer is to invest resources outside the criminal process- from the medical to the artistic, into victim survivors. A proper victims of crime compensation system would also be nice.

I believe that the purpose of the justice system is the physical, mental and spiritual protection of all persons, and their welfare, understood in a broad sense. The justice system has a duty of care to both perpetrators, victims and third parties- these duties of care that perhaps can never be truly reconciled, but we must try to uphold and respect each duty nonetheless. I believe the left, in particular, has a mission to protect the vulnerable, which likewise includes both victim-survivors and those over whom the state holds absolute power.

The details of trying our best to do well by everyone are complex, but the broad principles are known. Punish in sadness, not in anger. Power should invite hesitation. Treat like cases like, and relevantly unalike cases unalike. Anxiously seek out the one innocent person whose acts you might inadvertently destroy. Remember, everyone involved is human, and thus an object of value. Beware anyone who thrills in violence, however it is dressed.