Do you want to see a change in the way that sexual assaults are reported to authorities and legally addressed? Me too.
For a couple of weeks now the news has been full of declarations by victims of sexual assaults and rapes, and all of us who can say “Me too” have been really glad to see this. It means that the genie is out of the bottle. Perhaps now all businesses and industries will be able to confront and address imbalances and abuses of power.
What I don’t see being discussed much, though, is the way in which the law deals with these accusations. It has become apparent that without witnesses or evidence, sexual assault is a crime that is difficult to charge and almost impossible to prove. Can we do some brainstorming about ways to fix this impasse?
I keep reading “We believe you” messages in support of the victims, but that doesn’t amount to a hill of beans in the legal system. The problem is the adversarial nature of our justice systems. Most of the time, in theory at least, this allows for a balanced prosecution and defence. It fails, though, when the crime is a sexual assault. It fails because the system does not allow for different perceptions of consent, an absence of witnesses or evidence, and often a delay in making charges.
We need an alternative method for making and responding to these accusations. Perhaps a civil court would be more appropriate than a criminal court. If a judge felt it was more likely than not, based on the preponderance of the evidence, that the accused committed the crime, then they can find them guilty. In a criminal court, the standard is “beyond a reasonable doubt” which makes it much harder reach the same conclusion. If we really do want to believe victims and give them an opportunity for redress, then a civil court might be the better avenue.
Another possible approach to accusations derives from Jessica Ladd’s TED talk about campus rape. The suggestion there was that a victim could report an assault or rape without actually laying any charges. This report would be kept on file and, if multiple reports were made against an individual, then the person could be charged with some or all of the assaults. This process model is based on the expectation that a person who sexually assaults once is likely to do it again.
If that approach to assaults can be shown to be effective on college campuses, why could it not also be applied to other legal processes, either criminal or civil? This would make it more likely that a victim would report an assault, more likely that they would do so sooner rather than later, and more likely than a repeat offender would be convicted.
My knowledge of the law is extremely limited so these ideas may not be practicable or even legal. I only know that something has to change, and we must find new ways to show victims that we not only believe them but that we also want to help them find justice.