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Proposed New Sex Assault Laws – Key concepts of Assault and Consent

25.07.2019

 The women’s association, the Muvman Liberasyon Fam, has informed the Press, including the LALIT site, that three representatives spoke in its name when it sent a delegation to depone before the Law Reform Commission on 22 July, 2019. Here is what Lindsey Collen said, to launch the deposition, on the key philosophical concepts that need to inform the new law on sexual assault. 


Since 1977, in the MLF, we have been struggling for sexual assault to be seen as (i) assault tout court, and also (ii) for the centrality of consent freely given.


Assault


We call for the emphasis to be on assault, not on sexual. Consider these examples:


If someone hits you in the face, it is assault. And no-one would have “excuses” to the police or the Courts or the public for just hitting you – e.g your clothes provoked them, you were in an isolated spot, or you were accustomed to being beaten up, or whatever. But, consent can be given e.g. for boxing training. Even then, it is limited. There are detailed written limits to this consent in the Boxing Rules. Your opponent cannot knife you. 


If someone stabs you with a sharp instrument in the tummy, it’s assault. Again, you cannot claim that the person tempted you, was accustomed to suffering this, or is married to you. Again, consent can be given for cutting into one’s tummy, for example, for a medical procedure. This consent has, for routine interventions, to be so clear as to be in writing.


And similarly,


If someone comes up to you and cuts your hair, this is assault, unless of course consent has been given, for reasons of hair style.


Someone rubs your shoulders – it is assault, unless consent for physiotherapy.


And so on.


All this to say that in the MLF, we wish assault to be the general heading for sexual assault. And this means Sexual Assault is a sub-section of assault tout court. It thus follows the same logic that assault follows, or should follow. 


And like all assault it is not gender-specific. It is an attack on someone’s bodily integrity, male or female, anybody who is a victim to patriarchal violence.


So, sexual assault, including rape, is assault. Cut-and-dried. Assault.


That is what we call for in the new law.


Reasoning:Sexual Assault must thus be seen, in our view, as a sub-category of assault as the term implies (sexual is merely the adjective, not the noun). 


For historical reasons and due to the continued oppression by patriarchy of women (and men perceived as woman-like, as well as children), sexual assault is still seen as an “aggressive form of sexual behavior” i.e. something that is essentially about sexuality. We say it is about aggression. It has nothing whatsoever, in our view, to do with sexuality, but dominating the other, humiliating, damaging, assaulting the other. 


Seeing it this way (as a subcategory of assault tout court and not of sexual behavior), has four important practical effects: 


1. It prevents the blame being shifted to the victim. This often happens in cases of sexual assault, including rape. Recently we heard someone as distinguished as an ex-Supreme Court Chief Justice saying, to justify rather vaguely a case of granting a Presidential pardon, that “young girls give consent and then afterwards say they didn’t (1). The victim is blamed. This kind of speculation as to the guilt of the victim in sex assault is rife, and will continue to be rife, while sexual assault is seen by the law as a sub-category of sexuality (aggressive sexuality), when it is, in fact, a sub-category of assault.  


2. Seeing sexual assault as a form of assault, prevents every re-telling of the narrative to police officers and in testimony in the Courts becoming a re-play of the original assault – but now in public – with all the references to the technicalities of “penetration” making this worse. 


3. It limits the kind of titillation and voyeurism often seen in police inquiries and in judicial proceedings and in reporting of them. We have witnessed this over the years in police stations, in court and in the press and public. 


4. Once sex assault is seen as assault, it is no longer relevant:


a) What attire the woman victim was wearing.


b) What time she was walking somewhere.


c) What place she was in.


d) Whether she is a sex workers or not.


e) Whether she is a wife (or partner) or not.


This change of emphasis would indeed be important for the emancipation of women. It is also important for curbing sexual abuse of children, and young men.


Where the prejudice came from: 


We know how emphasis on the sexual nature of sex assault gained traction: it is because of the history of women’s oppression. In particular, male members of a family’s “honour” is aggressed by the besmirching of a female member of the clan. Traditionally, west and east, women were seen as chattels of men – and any sexual contact they had with non-husbands, whether the woman chose it or consented to it or not, was immoral and a dishonour to her husband, who was “the person wronged”. In fact, traditionally, since humans settled via agriculture and since unequal class societies emerged over the past 5,000 to 10,000 years, because women had been reduced like this to being chattels, the idea of consent was not relevant in cases of rape and sexual assault – there were arranged marriages to girls of 12, 13, 14 years old, and forced marriages of all ilk. Until very recently, class society gave the droit de cuissage in addition to powerful lords of the manor. The equivalent during slavery in Mauritius, was that women were sexually assaulted and raped with impunity by slave owners, slave drivers, and male slaves. During indenture, the pattern remained identical. This persisted until beyond Independence, and it still in living memory. Only in 1970, was there the long, revolving strike at the Medine Sugar Estate that led to the end of this practice as a general rule, and it has become less predominant.  But it is still here on many work-sites.


We must note that the #metoo movement has shown that the practice of sexual assault in exchange for work is persistent and widespread even in the country with arguably the least impunity for male predators. Indeed the President of the USA is on audio tape encouraging another male to assault women – saying how if you are powerful, you have impunity. We refer here to Donald Trump. And, he is partly right about the impunity – or he was when he said it, before #me too changed the balance of forces somewhat.


Consent 


Consent is important in defining sexual assault. As most sexual assault is within the family and close associates, it is this violence within the family and “ownership” of women and children by the family that has thus made “consent” very hard for the women’s movement to win.


But we have won a law that minors under 16 cannot give consent. 


Given this, it should be evident that consenti s of the essence. It should also be clear that consent must be clear, unequivocal.


Once consent is of the essence, this change, too, helps to banish the following:


1) Reference in police stations and courts and the press to the woman victim’s past life. (This should be outlawed specifically as well.)


2)  Reference to the women victim’s clothing. This should, in any case, be outlawed. 


3) Reference to the place she was in, or the time she was there. 


4) Reference to her job, if she is a sex worker or “escort girl”.


A good law would thus educate the public, as well as the police, the courts, and the press.


Consent cannot exist if the victim is a young child, unconscious, drunk or stoned, suffering a mental disability that clouds their understanding of the proposition.


Consent is specific to any act, and is not given to all acts. It can also be withdrawn after having been given. Just as a medical patient can withdraw consent to a surgical intervention, a woman can withdraw consent to a sex act. 


Consent is, in our experience, nearly always quite clear – to the perpetrator, as well as to the victim. It is only patriarchal hierarchy that makes out that women say “no” when they mean “yes”, and so on. If the perpetrator is under the influence of alcohol, this is not an excuse for not understanding that there was not consent. Consent must be freely given, and not under the duress of losing one’s job, or any other threat or implied threat. The nature of the hierarchy between the perpetrator and the victim is what gives some guideline as to whether consent was free or not. eg. police officer who is investigating a case in the family can extort sex.


Under the age of consent


In general, we agree that consent for a girl to sexual intercourse, or other sexual acts, can only be given when she is 16. So, we agree with the concept of statutory sexual assault. However, if the victim is older than or the same age as the perpetrator, or a similar age, this is different, and the law should allow the possibility of consent. Consent would however not be possible if there is, in addition, a secondary power-relationship – the man is a relative, an employer, or in any position of power relative to the victim. 


Clarity on “Rape” not needing to be a separate offense


The MLF believes that “rape” should not be considered a separate offense, but one of the forms of serious sexual assault. This is in turn a form of assault tout court– physical contact without consent. 


So, it is best seen, whatever the nature – rape or not – as assault i.e. contact of any kind without the consent of the victim. The gravity of the assault is, in our experience, not necessarily to do with penetration but with the degree of harm – physical, psychological – that the victim suffers. It is also unnecessarily embarrassing, even humiliating, for the victim if everything depends on the details of penetration. The younger the victim, the shyer the victim, the more nervous the victim, the worse the experience of retelling becomes, especially if outcome depends on this technicality. Assault tout court is clearly not your fault, nor an embarrassment to you. The fault is the perpetrators, and the embarrassment his for the aggression. In addition, having to prove penetration makes prosecution difficult, in practical terms.


  (1) Former Chief Justice Victor Glover: “Dans 95 % des cas, après l’acte, la victime se demande ce qu’elle a fait. Qu’est-ce que les gens vont dire? Elle va alors voir la police pour dire qu’elle a été violée, alors que strictement parlant, elle n’a pas été violée.” (L’Express, 27 October, 2018).