Sexual Assault, Punishment and Justice under Patriarchy
by S B
LALIT has pleasure in publishing a discussion paper that the Muvman Liberasyon Fam is circulating. The MLF will be deponing before the Law Reform Commission on 22 July in the context of new laws on sexual assault. Readers may recall that the Government returned the first draft proposals to the LRC calling for them to take inspiration from the Canadian laws on sexual assault. The MLF will depone on the importance of “consent” or “absence of consent” in sexual assault cases, on the importance of sexual assault being part of assault “tout court”, as well as challenging the idea that heavy sentences are a cure-all for sexual assault. This article is one of the discussion papers on the question of the “punishment” and “justice” aspects of the issue, by SB.
Following MLF’s discussion on the recommendations of the Law Reform Commission (LRC), I have been trying to dig deeper into my own understanding and conceptualisation of what justice means when it comes to sexual assault. It’s a difficult subject to explore, given that we live under patriarchy and rape culture and given how many of us have and continue to be subject to sexual assault in our daily lives. My own judgement on this is far from objective. Yet, I refuse to dismiss my own understanding of the issue on the basis of objectivity. There is no such thing as objectivity when it comes to survival mechanisms under patriarchy. There is value in lived experience just as much as there is value in questioning the ways in which we deal with the emotions that stem from lived experience.
The immediate response to experiencing or hearing of someone being a victim of sexual assault tends to be one of fury. Understandably so, I am angry not just because it is unacceptable but because this happens so much in my daily life and that of the women around me -from being followed to being groped to even more violent forms of assault. The perpetrators aren’t just strangers, it’s most likely to be men in our social or familial circle. This recurring experience of trauma we are told, is part of the lot of women. So I’ve got to learn to make certain detours or to toughen up one way or another. How am I to react to yet another instance of violence if not with fiery anger. I’m always angry about all these past transgressions for which there is little hope - if any- for justice.
My reaction is thus mingled with all that pain, all that justified rage and every other emotion that comes with living under capitalist patriarchy. I want perpetrators to suffer, I want them to feel the same helplessness I have felt and the shame and suspicion that was somehow ascribed to me as a victim. What does justice mean? When I’m fighting for the liberation of women, what exactly am I fighting for? A society in which perpetrators are identified and locked up for a certain period of time or a society in which I don’t have to worry about assault because it is clear through our actions, norms, practices and discourse that it is a reprehensible crime to violate the humanity and bodily autonomy of another person through sexual assault? The answer is clearly the latter.
This also brings me to dissect my politics when it comes to policing and incarceration. It is clear, in analysing the historical and philosophical ideas underpinning the prison system that it has never been about reform. (1) Evolving from the monarch’s right to his subject’s life and the public spectacle of his punishment to the state’s right to regulate other elements of what makes us human, namely social interaction, freedom of movement and of choice while still retaining productive labour makes it difficult to see imprisonment in any other light than a form of violence perpetrated by the state. This is even more concerning given the magnitude of the prison industrial complex in certain regions of the world. The use of prison labour to fuel the capitalist machinery is yet another form of slave labour, whereby workers have neither agency nor ownership of their work. In addition, there is a whole other dimension to contend with when we engage with policing. We know that policing disproportionately targets the most vulnerable and perpetuates cycles of violence. We all know about corruption and abuse of power amidst the rank of the police establishment. How can we then rely on these concurrent systems of policing and incarceration to bring justice through the very same mechanisms that are at the root of sexual violence and assault?
This is not to say that I am fully dismissive of imprisonment as a form of protection against violent people who are in no shape or form willing to engage with justice or willing to commit to reform. I think we need to engage more critically in how we approach reform anyway but that is a conversation for another time.
Yet, the trap of carceral feminism looms on how we understand justice for victims of sexual assault. I came across the term carceral feminism (2) in a debate about the rights of sex workers. The term, coined by Elizabeth Bernstein and outlined by Marie Gottschalk as “ a drift from the welfare state to the carceral state as the enforcement apparatus for feminist goals.”(3) This carceral feminism relies on policing and incarceration as a means to achieve justice. Yet, it is difficult to define justice in prison terms when we contextualise our knowledge and experience of the prison industrial complex and police brutality. It is even more so when we consider how incarceration in my own country does little to reform or provide a path to reintegration into society for perpetrators of violence. We thus lock up those few who are arrested, subject them to the violence of the carceral system and expect them to come out of it well-adjusted while also serving as a deterrent to others from perpetrating the same violence. While prison time has yet to have proven its value as a deterrent, it also exposes the perverse implication that we should make an example of a perpetrator, a spectacle as the monarch would have had it in medieval times in order for justice to be served. There is also the consideration that prison sentences tend to be doled out in discretionary terms, with marginalised groups being handed longer, tougher sentences while the socially and economically privileged are given “second chances.”
As mentioned in our discussion of the LRC recommendations, longer prison sentences, might instead incentivise perpetrators of assault to get rid of their victims in an attempt to escape the spectre of incarceration. This very likely outcome is a far cry from justice. It places a disproportionate burden on victims to not only report an offender - if they make it through the assault,- but also of having to go through the ordeal of reliving their trauma to prove beyond doubt to the court that their perpetrator is indeed worthy of that exemplary sentence. Sexual assault hearings then become tales of crime and punishment that do nothing to address the systemic inequeties that create the breeding ground for violence.
We are perhaps conditioned to believe that there is no reform possible and that criminals need to be locked up to deliver justice. Yet to me, justice doesn’t involve centering what happens to the criminal but to the victim. Justice means the society as a whole, recognising that I have been wronged - through the judicial process- and that it must take steps to eliminate the situations that have allowed for this wrong to happen while supporting my path to healing from the trauma of assault. Justice means creating the conditions for the perpetrator to recognise that they have committed a crime and giving them an avenue to work towards a semblance of reparation through reform and reintegration. Nothing will change the fact that I have been assaulted. Nothing will erase this trauma, not a 100 years of prison time nor any amount of community service. Justice cannot undo what has been done to me but it can instead, strive to reduce the likelihood of this crime recurring.
I recently went back to read the letter written by the survivor of a violent assault in the US, and read to her rapist in court.(4) It struck me how while the victim was appalled by the ridiculous sentence given to the perpetrator, it wasn’t the length of the sentence per se, that was an issue. It was the logic behind. The victim reiterated the fact that the jury had unanimously recognised that she had been violently assaulted and that this constituted a huge step in regaining a sense of ‘self’ that had been snatched from her. She had furthermore spoken to officials about how she did not believe in excessive sentencing but in her letter, explains that the judicial process had failed her not by delivering a light sentence but by delivering a light sentence in order to not affect the future of the man who had raped her. Indeed, the judge ruled that a longer sentence would have ruined the life of the man who had violently assaulted this woman. The attacker, throughout the trial refused to admit to their crime - they were caught in the act- and repeatedly lied and revictimized the victim in the press and at court. The letter further details the impact this entire process has had on them and the long term trauma that has accompanied this assault.
Thinking back on my own experiences of assault, which have mostly gone unreported, I have come to see a pattern. I have not reported the violent assault I was a victim of nor the smaller incidents because I did not feel like I would get the support I needed at the time, to deal with the trauma. I instead, felt like I would be put in a position of further harm with little to no hope of coming out of the process unscathed. The judicial system itself needs reform as do our framework for dealing with victims who come forward.
There are many ways of approaching justice that also tackle rape culture and patriarchy at large;
1 Justice, true justice, needs to center victims and their needs. This means that our courts, prosecutors and judges need to emphasize verdicts over sentencing. We need to shift from the binary of crime and punishment to a larger societal form of deterrent. Instead of re-victimising those who come forward with their trauma, the society should take the time to recognise how much courage, strength and resilience it takes for them to come forward. This implies setting up the support system, networks and institutional frameworks that can aid victims to heal from their trauma.
2 Reform instead of prison time. As a collective, we need to engage more critically with our recourse to incarceration and what its long term impacts are on the society and on violence. While this may sound utopian to some, it is already a reality in countries like Sweden, which focuses prison time on reintegration and the reduction of repeat offences.(5)
3 Change has to be systemic and has to be evidence-based. Increasing minimum sentences are populist measures that on the surface address public discontent over the rampant sexual violence in our society. This however fail to address the the mechanisms of patriarchy that make the wider society complicit in abetting and covering up for perpetrators of sexual violence.
This conversation makes sense to me, at this point. To focus on transformational justice instead of allowing my anger, frustration and sense of disempowerment to be exploited by structures like the prison industrial complex or the police establishment as an excuse to further the cycle of violence is the way forward. This in no way means that I am not allowed to be furious or seek other ways to address the complicated emotions and survival mechanisms that come from these experiences. I get to have ownership of that process, whatever it entails, outside of the spectre of patriarchal violence.
1 Foucault Michel, The Spectacle of the Scaffold, Penguin Great Ideas, August 2008
2 Elizabeth Bernstein; The Sexual Politics of the “New Abolitionism”. differences 1, Duke up, December 2007; 18 (3): 128–151
3 Gottschalk, Marie. The Prison and the Gallows: The Politics of Mass Incarceration in America. New York: Cambridge up, 2006.