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From “no means no” to “only yes means yes”

I have never been the victim of sexual assault. I have never experienced the unimaginable humiliation, shame, confusion, and fear brought on by a physical attack. Yet, according to recent data ascertained by the Australian Bureau of Statistics (2016), I should be fearful. As a 19 year old female I am 7 times more likely to be the victim of sexual assault compared to the overall population. Similarly, as of 2016 the number of sexual assault victims in Australia increased for the fifth consecutive year to their highest levels in seven years. However, despite all this, it is estimated that less than 30% of sexual assault experiences (ABS, 2015-2016) are reported to the police. So why is it that these violations of rights, and of the law, are being kept quiet? If your response to this question is that it must be wholly due to the choice of victims, then you’re part of the problem. Victim blaming presents a serious issue within the the legal system, the media, and our culture at large – and it’s wrong. Because no-one should have to experience a crime such as sexual assault, and then be told that they must have done something to deserve it. Because no teenage girl or boy should be made to fear what people might think or say, more than they fear being harmed again. Because no matter the situation “only yes means yes”.

In 1985 rape within marriage was legally identified as a crime. And, on the 1st of January 1992, rape finally became a statutory offence in Victoria (Larcombe, W. et al, 2015). Unfortunately, this newfound legislative acceptance for the rape victim status continued to be significantly devalued by views derived from Marvin Wolfgang’s Precipitation Theory (Block, Carolyn Rebecca & Block, Richard, 1991); which claims that victims of crime are somehow responsible for their victimisation due to their apparent provocation of an offender (Craig McLachlan case). This view reconstructs vulnerability into a failure of responsibility to protect oneself from harm whilst redirecting blame away from the attacker. Perhaps this is why it wasn’t until 2005 that the partial defence to homicide of ‘provocation’ was abolished in Victoria.

In 2012, 29 year old Jill Meagher was stalked, raped and murdered whilst making the 5 minute walk back to her home in Melbourne. In 2018, 22 year old Eurydice Dixon was stalked, raped, and murdered just 900 metres from her Melbourne home. And, in early 2019, 21 year old Aiia Maasarwe met the same end in strikingly similar circumstances, just 50 metres from a lit-up tram stop and whilst on the phone to her sister. All three of these young women, and the many more like them, were innocent victims. There should not have been a question as to whether or not they contributed to their own stolen futures. However, this did not stop the media or society from discussing what they were wearing, if they were drinking, and what steps they took to deter their own victimisation. Instead of focusing on what needs to be done to stop these crimes from occurring in the first place, women were yet again reminded to take precautionary measures so as to be less desirable prey. Effectively, the response to sexual violence seems to be that women should do what they can to ensure offenders pick a different woman to attack. Thus, this toxic narrative unjustly directs blame at the victim and puts lives in danger.

Regrettably, in a country where 1 in 5 women have experienced sexual violence and 1 in 4 have experienced physical or sexual violence by an intimate partner (Our Watch, 2012), a culture of victim blaming also prevents justice. NSW Police Sex Crimes Squad Commander, Linda Howlett asserts that our society’s high prevalence of victim blaming attitudes is why less than half of sexual assault cases secure a conviction in the state (Barry, 2017). Our nature to view offenders as rational actors incapable of causing harm without being motivated by victims (Routine Activity Theory) produces a multitude of harmful consequences. Research continues to show that the Australia’s criminal justice system (CJS) and judicial, legal, and police responses to sexual violence are achieving little more than the further traumatising of victims.

This problem is emphasised by the facts that approximately 85% of sexual assault offences are never considered by the CJS and 38% of cases are withdrawn often before indictment is even filed due to victim reluctance to proceed. Moreover, when the remaining sexual assault cases are heard by the courts, the likelihood of an acquittal is 3 times higher than any other offence. Thereby indicating the detrimental contribution victim blaming makes to the failing of Australia’s legal system.

Unfortunately, the harms of victim blaming do not cease to exist within the confines of the justice system. According to a study involving the University of Melbourne, 1 in 6 newspaper articles still indicate the victim was responsible for the violence inflicted on them. Likewise, around 15% of incident based reporting involves information that blames the victim such as “she went out alone”.

It is evident that the media plays a key role in directing the attitudes of society, thus the lack of focus on perpetrator accountability is exceedingly worrisome. Two thirds of a sample of Victorian callers did not report their sexual assault encounter due to the view that police would not believe them, whilst others did not seek legal justice through fear of being blamed or having to inform their families. Disappointingly these fears may be founded, with an Our Watch survey indicating that victim blaming attitudes are present in one third of young people who deem it difficult to respect drunk or scantly dressed females. The same survey of youths found that more than half consider it the females responsibility to make it known if she does not wish to have sex, and 1 in 10 believe an intoxicated woman is partly responsible for unwanted sex.

These alarming results are representative of the views that could be shared by jurors when seeking to determine whether a ‘reasonable man’ would believe that certain actions or words provided for sexual consent. Furthermore, the complexity of jury directions when instructed to determine ‘reasonable belief of consent’ may lead to a biased decision guided by their prior exposure to rape myths and stereotypes in media as well as the victim’s character degradation constructed by the defendants lawyer (Brock Turner Case, America). Thereby, displaying the harmful societal view that women are responsible for mens abusive behaviour.

Furthermore, many years of legislative reform has attempted to shift onus away from the victim and towards the offender, through the notion of affirmative or communicative consent, with minimal success. The aim is to redirect focus onto the measures taken by the accused to ensure consent rather than scrutinising the victim’s actions of dissent; hence “only yes means yes”. While such reforms may assist in dissolving conservative views of the ideal victim and legitimising a victims autonomy, their effect remains minimal. A Victorian study found that sexual history and reputation evidence was utilised in 76.5% of observed cases.

Paradoxically, victim blaming cannot cease within the justice system whilst it remains rampant in society. Social psychologist Melvin J. Lerner provides the ‘Just World’ theory (1980) wherein we are positioned to believe that people “get what they deserve”. Therefore, when someone suffers a crime yet lacks the characteristics deemed to be undeserving or ideal, we construe events so as to restore the balance of reason and regain feelings of safety. Lerner highlights that in order to reduce personal distress and dispel feelings of powerlessness one can “reinterpret the cause” or “reinterpret the character of a victim” in order to differentiate the victim from oneself. Thus, in order to regulate emotions when faced with a confronting situation, we blame the victim; and so the cycle continues.

In a society governed by myths, victim blaming provides a naive sense of security. It permits us to dispel our fears through false convictions, and promotes the belief that if we dress or act a certain way we will be safe from the horrors of crime. However, such false reassurances come with the high price of secondary victimisation for those who no longer possess such blissful ignorance. Victim blaming disregards the emotions of the victim, limits the likeliness of reporting, decreases the chances of a fair trial, and ultimately extinguishes the possibility of effective justice. Australian reforms have attempted to improve the situation with limited success. As a nation Australia must stop hiding from reality and acknowledge that victim blaming is wrong and needs to stop.

“Far too many people excuse, diminish and blame the victim when it comes to violence against women.”- Malcolm Turnbull (in regards to a TNS survey which found high levels of “automatic” victim blaming)
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