By Joanna Ong
International human rights law and international courts have affirmed protections for victims of sexual violence. The United Nations Declaration on the Elimination of Violence against Women protects women’s and girls’ rights in sexual safety as the “right to liberty and security of person.” (1) Signatories are required to develop and implement penal, civil, and administrative sanctions on all forms of violence against women, without restriction to any provision which may be more conducive to the elimination of violence against women. (2)
Cultural commentators note how society often considers sexual violence to be a “personal and private injury” inappropriate for public reckoning. (3) This cultural privatisation of sexual violence impacts the courts’ ability to respond adequately to instances of gender-based harm in violation of international law. Institutions arrange for the organisation of nondisclosure agreements to protect the confidential nature of business activities. These agreements, which prevent the signing party from disclosing certain sensitive facts to others, have been used to silence victims of sexual violence. (4) Importantly, thirty-two percent of respondents share that they choose not to pursue formal reporting in order to avoid being made to sign an NDA that disallowed them from talking about their experiences. (5)
The Higher Education (Freedom of Speech) Act of 2023 has banned the use of nondisclosure agreements related to reporting instances of sexual abuse, harassment, or misconduct in higher education, which took effect in the United Kingdom beginning in August 2024. (6) The United Kingdom has not yet banned nondisclosure agreements in all sexual harassment cases. However, it has announced that it will legislate to ban the use of nondisclosure agreements for information related to criminal conduct. (7)
Implicated Subjects
Though these steps remove barriers of discrimination against victims of sexual violence, vocalising harm remains a challenge due to relational and social challenges created by implicated subjects with incentives to protect perpetrators. (8) These incentives fall within a range of aligning with more powerful social circles to enhance social credibility. (9) Implicated subjects are those who have inherited responsibilities related to the perpetrator in the cumulative acts leading to sexual violence or the subsequent protection of such acts. If power motivates protection of sexual abusers, then who are these implicated subjects? These implicated subjects may include family members or defenders of the wrongdoer who, despite being aware of the perpetrator’s actions, are unable to risk the perpetrator’s credibility to acknowledge the harm experienced by a victim.
When a victim is harmed, the litmus test for a community’s appetite for justice and peace can revolve around the resources spent to remedy the victim or defend the accused. In cases involving sexual assault by rape or penetration, only 15% of cases were reported to have been committed by a stranger—the majority of cases occurred due to actions by a partner, acquaintance, or family member. (10) When so many cases involve a perpetrator known to the victim and known to the community, how can we expect the community to remedy harm?
In one case illustrated in the United States, a clear case of rape and the threat of homicide resulted in the fracturing of a community. After being raped at knifepoint in her home, Sarah Super began influential work to seek criminal justice upon the assailant. (11) He had brought with him duct tape and wrote a note that expressed homicidal intentions. Familiar with the assailant and believing he would remain dangerous in public life, she recalled an overall positive experience with the criminal justice system, which resulted in him being sentenced to twelve years in prison. (12) But during this process, his family and mutual friends had organised funds under the moniker of a “Care Hub”—not for her recovery, but for his defence. (13) If this was the response from a community with the evidence so brute and obvious, how could the community be inspired by courage in instances where the evidence is solely the victim’s body and word?
In sexual violence cases involving known assailants, the community that a victim would be expected to seek help from and rely on for support often turns against them. Even where a plea or guilty verdict guarantees a judicial acknowledgement of criminal wrongdoing, the acknowledgement does not transform into behavioural reform, nor healing for the victim. Survey respondents who experienced commercial sexual exploitation specifically critiqued recidivism rates, for instance, by reporting that “people went to jail . . . for pimping . . . and [got out and continued] pimping.” (14) Witnessing the continued failure of institutional justice to reform sexual offenders contributes to the victim’s loss of a just world. Implicated parties’ devaluation of a victim lends itself to a false preservation of a just world when the discomfort of acknowledging the suffering of a victim becomes overwhelming. (15)
Nor does acknowledgement of wrongdoing, writ large through public mea culpa, provide full resolution in out-of-court cases. In one instance, an American professor at a public university was reported to have raped a student while she was blacked out after providing her with alcohol under the guise of a celebratory graduation outing. (16) This event disrupted a young woman’s investment in her career, and exposed her to a situation she should have never had to experience. But recognition of her courage and strength of spirit enabled collective action to develop greater safeguards against sexual violence. The university found the claims credible enough to settle with the student out of court, and the professor resigned from the university. (17) Recurring episodes of authority figures replicating sexual abuse erodes the opportunity to build trust with victims in government resources and social services.
Betrayal from a community can begin a series of secondary traumas. In building memorials for victims of sexual violence, survivors and their supporters attempt to resist the norms of a society to uphold a new normative “where initiation rites [] don’t involve degrading women.” (18) Through compelling narratives to represent victims of sexual violence, a survivor may advocate for public memorialisation as a mechanism for both healing and influence. (19) Although public memorialisation can inspire and embolden social change, such physical forms of memorialisation are inadequate when impunity remains. Since its installation, one survivor memorial in Minneapolis has been vandalised multiple times, with the bodies and faces of represented survivors cut and removed. (20) By echoing the type of violence that victims of sexual abuse experience, this vandalism continues to demonstrate and perpetuate challenges against both private and public remedies.
Managing Recovery with Implicated Parties
By requiring clear consent and verbal exchange to engage in sexual activity, legislation can better prevent sexual crime and manage allegations of sexual assault. A University of Stirling study found that men may have a greater tendency to overestimate a woman’s interest. (21) This overperception bias cannot act as a defense where affirmative consent was not received. In other words, a misunderstanding cannot excuse rape. The establishment of affirmative consent-based laws, where only a verbal “yes” means “yes,” can provide greater sociosexual safety even in environments where offenders have prospered and limit the burdens upon implicated subjects to realise recovery for victims.
In the United Kingdom, the total number of sexual offences recorded in 2022 reached an all-time high of 193,566. (22) These offences include rape, unwanted sexual touching, and indecent exposure. (23) Fewer than one per cent of reported rapes end in a conviction, and as few as five per cent are charged. (24) And alarmingly, though the number of reported rape offences has increased, records from 2016 to 2021 have reported prosecution of rape has plummeted by nearly half. (25) No strong estimate exists for the number of sexual offences that remain unreported, though one agency estimates that only one in six women report their rape. (26)
The law is not a recommendation, but legislation preventing substantive harm and discrimination continues to struggle with enforcement. For victims and survivors, one theory for why the conviction rate for rape remains low is specifically because the assailant is known. (27) Fear of fracturing community ties, retaliation, dynamics of control within existing relationships, victim blaming by police, and not being believed after denials made by the perpetrator and their defenders are deterrents to adequate enforcement of anti-sexual violence movements. (28)
One theory goes that a just system would be one where the laws of the society assume that any individual may be caught in the same situation as another—a notion critiqued for its failure to consider the futility of relinquishing one’s internal bias. (29) While relations of the perpetrator may not want to imagine their friend as the child molester, sexual abuser, or John raping his employees, they may look at the facts as if it was any other individual, and consider that accountability must be held. If a denier could imagine that the facts regarding sexual molestation of another had been reported about themselves, perhaps the denier could have approached the issue with greater sensitivity. Such imagination aids in developing the epistemic injustice that is attached to knowing facts that others do not, and temporarily alleviates the more lasting injustice of sexual violence by an uncomfortable but necessary form of empathy. (30) For those seemingly incapable of doing this, or who continue to intimidate victims, the solution may be to remove them from the environment entirely, and ensure that they are not in a position to willfully intimidate victims. Such coordination replicates nonconsensual gratification at the victim’s expense, and risks furthering retraumatization. (31) Pointedly, victims should not be used as unwilling tools for the reform of perpetrators. (32)
Societies may seem held together by silence, tenuously. For implicated parties, turning away from a victim allows them to avoid their fear of holding perpetrators accountable. The economic, emotional, physical, and social costs of maintaining a culture of silence around sexual violence create unsustainable relationships that demoralise members of the community and foster distrust. Those close to accused perpetrators must overcome fear to consider how harmony and concern for the victim can arise in even challenging and adversarial proceedings.
Sources:
1. U.N. Declaration on the Elimination of Violence against Women, Art. 3(c)
2. Id., Art. 4, Art. 6.
3. See Lin Li, Towards a Just Memory: Remembering Survivors of Sexual Violence through Memorials, Stanford Arcade (Mar. 3, 2023), https://shc.stanford.edu/arcade/interventions/towards-just-memory-remembering-survivors-sexual-violence-through-memorials.
4. Crackdown on ‘gagging orders’ to protect victims’ ability to access support, March 28, 2024, https://www.gov.uk/government/news/crackdown-on-gagging-orders-to-protect-victims-ability-to-access-support
5. Written evidence from Can’t Buy My Silence [MiM0056], Parliament UK, https://committees.parliament.uk/writtenevidence/126835/pdf/
6. Higher Education (Freedom of Speech) Act 2023.
7. Ministry of Justice, “Crackdown on ‘gagging orders’ to protect victims’ ability to access support,” GOV.UK (March 28, 2024), https://www.gov.uk/government/news/crackdown-on-gagging-orders-to-protect-victims-ability-to-access-support.
8. See, e.g., Michael Rothberg, The Implicated Subject: Beyond Victims and Perpetrators (2019) at 92 (urging consideration of the responsibility of implicated subjects, or those whose narratives are “always situated within . . . preexisting [] legacies” that relate to past or ongoing violence and violation.)
9. See generally Deborah Tuerkheimer, Credible: Why We Doubt Accusers and Protect Abusers (2021).
10. “Nature of sexual assault by rape or penetration, England and Wales: year ending March 2020,” Office for National Statistics (2021), https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/natureofsexualassaultbyrapeorpenetrationenglandandwales/yearendingmarch2020#perpetrator-characteristics.
11. Judith L. Herman, Truth and Repair 10-11 (2023); Chao Xiong, “Minneapolis man gets 12 years for raping ex-girlfriend at knifepoint, Star Tribune (July 28, 2015 at 7:54PM).
12. Id.
13. Id. at 11.
14. Jeanette Hussemann et al., Bending towards Justice 16 (Office of Justice Programs ed. 2018) at 13.
15. See Ervin Staub, Positive Social Behavior and Morality Vol. 1 (2013 ed.) at 169 (“derogation sometimes serves the function of reducing a person’s discomfort about being exposed to another person’s suffering”); see also Anthony Charuvastra and Marylene Cloitre, “Social Bonds and Posttraumatic Stress Disorder,” 59 Annu Rev. Psychol. 301 (2008) (discussing studies showing that individuals exposed to human-generated traumatic events carry a higher risk of developing PTSD, and noting that 45% of women and 65% of men who reported being raped met criteria for PTSD, compared to 38.8% of men who had PTSD from experiencing combat.)
16. https://www.mercurynews.com/2017/02/02/a-student-claimed-her-college-could-have-prevented-her-rape-she-is-awarded-1-5-million-settlement/.
17. https://www.cbsnews.com/sanfrancisco/news/uc-santa-cruz-students-rape-claim-leads-to-1-15m-settlement/.
18. Herman, supra note 8, at 11; see also “Nation’s first permanent Memorial to Survivors of Sexual Violence will be celebrated in virtual ceremony October 10,” Minneapolis Park & Recreation Board (October 9, 2020), https://bit.ly/41vlkSu.
19. Id. at 10-11.
20. Allen Henry, Sexual assault survivor memorial vandalized for second time in five months, CBS News (October 21, 2022, 10:16 PM), https://bit.ly/48inEym; see also Christine Hauser, ‘It Is Not Coming Down’: San Francisco Defends ‘Comfort Women’ Statue as Japan Protests, NY Times (October 4, 2018), https://www.nytimes.com/2018/10/04/us/osaka-sf-comfort-women-statue.html.
21. Anthony Lee et al, “Sex Differences in Misperceptions of Sexual Interest Can Be Explained by Sociosexual Orientation and Men Projecting Their Own Interest Onto Women,” 31(2) Psychological Science 184 (2020); see also Martie G. Haselton, “The sexual overperception bias: Evidence of a systematic bias in men from a survey of naturally occurring events,” 37 Journal of Research in Personality 34-47 (2003); Emma C. Howell, “The sexual overperception bias is associated with sociosexuality,” 53 Personality and Individual Differences 1012-1016 (2012).
22. “Sexual offences in England and Wales overview: year ending March 2022,” Office for National Statistics, https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/sexualoffencesinenglandandwalesoverview/march2022.
23. Id., figure 1.
24. Annual Report of the Victims’ Commissioner 2021 to 2022 17.
25. Id.
26. Rape Crisis, https://rapecrisis.org.uk/get-informed/statistics-sexual-violence/.
27. See, e.g., Barry Roche, Most rape victims don’t report because they know the perpetrators, Irish Times, Nov. 01 2021, https://www.irishtimes.com/news/ireland/irish-news/most-rape-victims-don-t-report-because-they-know-the-perpetrators-1.4716030.
28. See id.
29. See Michael Sandel, Liberalism and the Limits of Justice (1988) 184, 187-88 (critiquing the presumption that “we are free and independent selves, unbound by antecedent moral ties,” and noting the difficulty in creating a framework of independent choosing due to common moral and political obligations, such as pressures toward solidarity).
30. Miranda Fricker. Epistemic Injustice: Power and the Ethics of Knowing (2007). See also Dorte Christiansen et al., “Secondary victims of rape,” 27 Violence Vict. 246 (discussing the secondary traumatization experienced by third parties witnessing or responding to trauma survivors of rape, and noting a desire by respondents for more education on how to support a rape victim).
31. JUST Alternatives, “Restorative Justice 101 for Victims,” Accessed September, 8, 2024. https://justalternatives.org/victimsurvivor-resources-2/restorative-justice-101-for-victims/ (“If it’s not Victim-Centered, it’s not Restorative, and it’s not Justice.”)
32. Id.