After reports of Sheikh Taj’s Ramadan speech sparked an outrage in the media, Crikey asked prominent Melbourne barrister and broadcaster Peter Faris, QC whether defence lawyers in rape trials ever refer to the behaviour of female rape victims. Sadly, the idea that some rape victims can be made to appear responsible for their own victimisation is not as medieval as some commentators have led us to believe. He wrote the following:
About 30 years ago, when I was a busy young criminal defence barrister in Melbourne, I was briefed in a rape case. My client was said to have forced a 16-year-old girl (a virgin) out of a party, into his car, where allegedly he had sex without her consent. The defence was consent, that is, intercourse was admitted.
I did my job, which is to say I destroyed the girl during cross-examination. As she was leaving court after finishing her evidence, and the door to the courtroom had not quite shut, she gave a howl which sounded like a mortally wounded animal. The jury subsequently acquitted my client.
I want to avoid purple prose, but that cry has stayed with me and I can recapture it now as I write. Because of this case, I never defended another rape case (or any sex case for that matter).
Over the years I have, of course, asked myself how is it that I can appear for murderers, drug dealers and all sorts of criminals without being troubled. The two answers I came up with are these.
First, the power I had over this girl in cross-examination was frightening. I am a good (and ruthless) cross-examiner. I now feel that I do not wish to use my ability to damage or destroy witnesses in cases such as these.
Second, my tactical view (then) of a rape trial was that an acquittal was best obtained by destroying the alleged victim. In most cases it was possible to paint the victim so that she lost the sympathy of both the men and women on the jury. Obviously, this was not stated in words but was rather the atmosphere created in the trial.
The aim was to get the men on the jury to put themselves in the place of my client and to feel that “she asked for it” and to be a bit envious of him in having sex with her. Titillated, perhaps.
On the other hand, my tactic was to get the women on the jury to dislike the girl because of her lack of virtue (“a slut”) but also to feel jealous of her s-xual attraction and powers.
If I accepted a rape brief, I had an overriding obligation to do the best I could for my client. As I felt I could no longer pursue these tactics, I could not do my job.
As I have said, I never defended another sex case. Things have changed since the 1970s and I have no idea what the tactics in rape cases now are. But despite all the safeguards for the victim, I suspect that destroying her is the surest path to an acquittal.
7 comments ↓
As-Salaamu ‘alaikum,
There was a very well-known case in Scotland where a 16-year-old girl was raped, having been attacked in the street and forced into a park, by a local thug. When giving testimony, the defence barrister insisted that she hold up the underwear she had been wearing – twice – and read out the “little devil” slogan. Although the rapist was convicted, the victim later committed suicide.
Faris does not say whether there were witnesses to the girl being dragged out of the party and into the car. If there were, and it was obvious that the girl was in distress, and that she had presented to the police with injuries consistent with rape, there really was no excuse for questioning her virtue. Girls go to parties every day, usually not to get a quick screw in a man’s car. It doesn’t mean she’s “asking” for anything.
On the other hand, there are situations where a rape accusation might be made and the alleged victim’s past record might well be relevant. When the supposed rape happened during an actual one-night stand and there is no evidence other than an accusation and some nasty details about the man’s character, it really should not go to court at all given that there is no real proof (something a lot of feminists don’t like hearing). But as the awful case in Scotland shows, it is not only in heavily contentious “date rape” cases where a woman’s history is dragged up: victims of archetypal rape suffer it as well.
That does not have much to do with what the shaikh said in that lecture, however; the words quoted plainly say that according to this great imam he mentioned, the overwhelming share of blame lies with the woman for “tempting” him, rather than with him for failing to control his impulses as he is commanded to do. It also failed to take into account the huge difference between the sort of attention a woman might get by dressing provocatively, which may well be what she intends, and rape. There is simply no comparison.
Hi all: have you guys been keeping up with the mass rapes/harrassment in Cairo? The media has been shamefully slow in catching up with this story: and it’s a hell of an important story. Take a look at www.bigpharoah.com or www.sandmonkey.org
This incident, strangely enough, supports my earlier assessment (previous post) about the nature of evolutionary pressures and the necessary social constraints on them. It also ties into Islam and rape. It ties into the (unspoken but implied in the Oz media) issue of Arabs and rape.
An interesting comment on bigpharaoh was that the sexual fear that a Chinese man’s wife felt in Cairo did not exist in Isfahan. Is it specifically Arab culture that fosters misogyny? I personally have a prolem with that contention because of elements in Pakistan/Afghanistan – ie. Hudood ordinance. But just because there are problems there doesn’t mean that there is not something quite ill in the Arab world when it comes to women.
A fascinating take on all of this comes from Tanveer Ahmad, who happens to represent most of what I believe. He was on this week’s religion report on the ABC. Have a listen. He contends that central to Islam is the yearning for a mother figure, a female, loving authority. When he gets into stuff about the matriarchy of Jahaliyya and lierated women then, and the goddesses and what not, he starts to lose me because I believe that is an abrogation of histrocity and more a rose tinted attempt to parlay goddess worship into a generally woman friendly social structure which never existed.
Anyway, go to Religion Report and listen. It’s always geat to hear him speak.
“When the supposed rape happened during an actual one-night stand and there is no evidence other than an accusation and some nasty details about the man’s character, it really should not go to court at all given that there is no real proof (something a lot of feminists don’t like hearing).”
OK, Yusuf, I’m going to get you alone in a private place and hit you with a blunt object, so as to be painful and not leave bruises. It should not really go to court at all, since there is no real proof that I hit you.
Ms 45, surely there must be some evidence for an allegation to reach court right?
If not, I could just accuse you of raping me even though we’ve never met and you would be arrested, charged and made to await trial. That’s not fair is it?
“there must be some evidence for an allegation to reach court right?”
Yes, but the (alleged) victim’s statement is evidence. I’m not a lawyer but as I understand it the decision to prosecute is made by the Department of Public Prosecution, usually after advice from the police. There will be cases when there is no evidence other than the (alleged) victim’s testimony, but the testimony itself is extraordinarily convincing. In such cases I see no reason why a jury shouldn’t decide who is telling the truth. In other cases the DPP will decide that there isn’t enough evidence to proceed with the case, and there will be prosecution.
In the case of the one night stand, a typical claim might be that the (alleged) victim was too drunk to be capable of consenting. If they were drinking publicly then there would be evidence as to how much she drank, and how she looked when she left. They would have also interviewed the (alleged) rapist, who may admit that the victim was unconscious. In that case there’s quite a bit of evidence, and even a confession.
“I could just accuse you of raping me even though we’ve never met and you would be arrested, charged and made to await trial. That’s not fair is it?”
It wouldn’t be fair, but it wouldn’t be fair to accuse her of any other crime either. It would quickly be seen that you two had no real connection and that you couldn’t make a convincing story as to when and how you were raped. The system usually works reasonably well.
Adding on to Joe’s comment, the majority of rapes aren’t reported let alone reach court.
[...] Via Austrolabe [...]
Leave a Comment