Insight: #MeToo is a wake-up call to the legal system

It is now a year since the allegations against Harvey Weinstein hit the headlines. The revelations by Hollywood celebrities lit the bushfire of the Me Too movement, and around the world women from all walks of life, who had often remained silent for years about their experiences of rape, sexual misconduct, harassment and other indignities, gave vent to their pent up pain and anger.
Baroness Kennedy of the Shaws is chair of JUSTICE. Picture: Phil WilkinsonBaroness Kennedy of the Shaws is chair of JUSTICE. Picture: Phil Wilkinson
Baroness Kennedy of the Shaws is chair of JUSTICE. Picture: Phil Wilkinson

This was a brick being thrown through the windows of the justice systems everywhere. It was a form of civil disobedience – the naming and shaming of abusers instead of using the normal legal processes. It was their way of saying that the system had failed them because they had no faith in receiving justice from law enforcement agencies, the courts or the state institutions. Why had it taken so long for women to be heard? To engage in a penetrative sexual act with someone without their consent is rape. It sounds so simple. Yet it is the most debated crime of all and the one that provides the greatest challenge to the criminal courts. The statistics still shock; a crime of alarming prevalence, it seems to defy the ordinary trial processes and conviction rates are lower than in other areas of offending. It can also still incite furious discord around dinner tables.

While nowadays rape is no longer defined in a gender specific way, it is still a crime that is most often perpetrated by men on women. At gatherings, men express puzzlement at why others of their gender would force themselves on an unwilling sexual partner. Misogyny, opportunism, a sense of entitlement, a taking of something that would otherwise be forbidden, a way of punishing or humiliating or staking a claim, a sense of ownership, a power play, a fury at rejection? Multiple motivations are offered. Why would anyone be so deaf to another’s No? Why want sex that is not about mutuality and reciprocity? Where is the pleasure in stealing sex from someone who is blind drunk?

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Stranger rape draws down righteous condemnation from an outraged public. The terror of sexual violation at the hands of an unknown assailant, whose full potential for violence is unknown and who may leave his victim for dead, is the stuff of nightmares. Parents warn their daughters from an early age about walking alone at night, taking late night buses and accepting lifts from strange men. But like most sexual crime, rape is much more often perpetrated by someone known to the victim, not always well – it may be an encounter at a party or on a dating site or that very night at a club – but sufficiently acquainted for the issue of consent to bedevil the subsequent attempts to secure justice. How the woman behaved becomes the focus of discussion. What are the warnings parents give their sons on the subject? What do parents say to boys about how to behave?

I have practised at the Bar now for over 40 years and argued for many of the reforms which have been introduced to ameliorate the experience for the complainant, like the use of screens or the pre-filming of evidence and cross examination to avoid an accuser facing their alleged assailant in front of the jury. We wanted some limits placed on cross-examination, and judicial consent is now needed to ask questions about the past sexual history of the person making the allegation. But none of the reforms seem to really work. Women are blamed for drinking too much and behaving in ways deemed provocative. Their credibility is impugned and their reputation laid bare. Their mental health explored intrusively. Their Facebook entries and other social media accounts examined to find salacious material for cross-examination.

The defence lawyer’s professional duty is to test the Crown case and, where one person’s word is set against that of another and the subject matter is the febrile one of sex, it does not take great skill to undermine a complainant. Slut-shaming does not stop at the courtroom door. Too often it is subtly insinuated into the questioning.

The criminal justice system still struggles with subterranean, complex ideas about gender and what we have to acknowledge is that deeply embedded attitudes are hard to uproot. It is not so long ago that women were the property of their fathers and then of their husbands. The idea of women having autonomy and a right to control their own bodies is new in the scheme of things. There was no such thing as marital rape until 1991. Prior to that there was an exemption, which said no husband could be prosecuted for the rape of his wife.

Although there has been a considerable evolution in social norms there remains a sexual double standard which means certain conduct is permissible for men that will not be countenanced in a woman. These attitudes, often unspoken, creep into relationships and into the courtroom.

The shift from a male sense of dominion over women’s bodies to women’s complete independence and freedom over their sexual choices is still a work in progress. Many people, men and women, still harbour often unspoken views about appropriate behaviour for women – that if a woman has given herself freely to other men in the past or has consented previously to the man against whom she now is making an allegation of rape, she has gone some way to forfeiting the right of refusal. Where a couple are married, unless there is clear evidence of domestic violence, or the couple have separated, it is very rare for prosecutions for rape to be brought or to succeed.

Juries seem unwilling to accept that a woman is entitled to change her mind, having kissed and engaged in some intimacy with her alleged assailant. Or that, if she has embarked on sex with a man but does not want to do what he wants to do, eg anal intercourse, she is entitled to say no. She may also not want to be “spit-roasted”, whereby her romancer invites his pal along for the ride and invites him to penetrate another orifice. “No” seems to carry little clout in the courts in many such cases. If the parties have been drinking, truth becomes a difficult butterfly to catch. Each party can present their own version of the truth, and juries face the task of deciding whether the allegation has been proved beyond reasonable doubt – a high evidential bar. Juries know nowadays that the consequences of a rape conviction are loss of liberty for years. They usually take their role very seriously. Recent research has shown that juries are reluctant to convict men who are young because they do not want to ruin their lives. However, the lives of many women are regularly ruined by sexual abuse and misconduct and they are now demanding justice.

The long-term effect of rape and sexual abuse on women and men is only now being fully understood. The extent to which we are all burdened with our own subconscious baggage when it comes to sex inevitably plays its part in decision-making. That includes judge, jury and lawyers. The fog around sexual intimacy obfuscates and flies in the face of legal rationality. The template of the criminal trial with its commitment to public justice; the state intervening on behalf of us all, the community, rather than the victim; the testing of the accounts in rigorous cross-examination; the very high burden of proof; all seem to militate against a resolution that can satisfy the nature of the crime in so many cases.

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Words often disappear in the act of sex, with touch and feeling taking their place. People respond or fail to respond to physical cues. The legal system seems ill-constructed for the stuff of such intimate interactions. Women know when their will is being overborne but too often men fail to recognise they are abusing their power. The courts are poor places for a resolution that satisfies the two sides.

Consent is a fundamental issue in law. Only do unto me that to which I consent. In human relationships much remains tacit and too much is taken for granted. The “Me Too” movement has reset the dial. It is leaving many men unsettled and on the back foot, having to think before they speak or act, but that has to be good. It may be uncomfortable for a while but cultures only change when we really think about what we do. Women want their voices to be heard and are saying, “Listen. Hear me.”

As a lawyer I believe in due process. No one should face punishment or a detriment like the loss of a job without a fair hearing but the legal system should recognise Me Too as a wake up call.

We have been failing women and have to put our houses in order. Sexual politics is a raw and hard terrain but until law is able to deliver justice for women, all the talk of equality is idle.

• Eve Was Shamed: How British Justice Is Failing Women by Helena Kennedy is available in hardback (Chatto & Windus)