When Do Depictions of Sex Constitute Assault?

@RHRealityCheck

In June, a story of “girl power”-style revenge made the rounds on social media. Reportedly, a woman sent unsolicited penis pictures she had received to the sender’s mother, despite his protestations. Meanwhile, an ongoing debate in Britain about what—if any—depictions of sex should be banned has resurrected the age-old question: Does pornography cause rape?

Both stories raise interesting questions about the limits of privacy and consent.

Most of us agree that when adults voluntarily share generic photos of themselves with friends who consent to viewing them, this is no matter for censorship or state intervention. There is, however, less agreement on how much autonomy we should have when those images involve nudity or are explicitly sexual. Some jurisdictions ban “hard-core” or “extreme” pornography, while others place limits on the “obscene.”

Part of the problem is that we do not have a homogenous view of what constitutes pornography or obscenity in the first place. The difficulty in stating clearly what we believe is immoral or wrong was memorably captured by U.S. Supreme Court Justice Potter Stewart in 1964, when he stated that constitutional protections of free speech clearly did not protect “hard-core pornography,” a concept he couldn’t define, though he was certain he would “know it when I see it.”

It was also recently highlighted by a successful grassroots campaign to push Facebook to implement better guidelines on what content the social networking site should take down. The campaigners argued Facebook wrongly identified breastfeeding mothers as “obscene,” while leaving up photos and speech they felt advocated violence against women. Facebook argued it routinely removed hate speech, while leaving up humorous, though offensive, content.

And the difficulty is at the core of the current debate in Britain about a 2008 act that prohibits the possession of “extreme pornography,” defined to include images produced for the purposes of sexual arousal of acts that, if real, would likely cause serious injury to a person’s anus, breasts, or genitals.

Last summer, this act was put to the test in a case against a London mayoral aide who was charged with possessing images of a sado-masochistic nature. The images depicted friends and acquaintances of the aide, who, the prosecution does not contest, had consented to the pictures being taken and shared. The aide was ultimately acquitted after a very public trial, but lost his job. Those who advocate for maintaining and expanding the prohibition of “extreme pornography” argue that such images, in themselves, are a form of assault, and that they cause more violence by trivializing abuse.

It is important to note that a causal link between pornography and violence has not been proven. A 1991 study of criminal data in four European countries concluded that incidences of rape had not increased more than nonsexual violent crimes as pornography had become more easily available. This was confirmed in a 2009 study, which concluded that evidence for a causal relationship between exposure to pornography and sexual aggression is slim and may have been exaggerated.

So the real question is whether pornography (or sexual imagery) in and of itself constitutes assault. And this depends on consent and affects privacy. Rape apologies aside, there is no longer confusion (at least in the law) that anyone forced to carry out a sexual act, on or off camera, is a victim of assault. In other words, pornography constitutes assault when it depicts individuals who have not consented to have sex, let alone to having it filmed.

Pornographic images also constitute a form of assault when they are thrust on people who have not consented to seeing them. This is the case with unsolicited penis pictures, and is the reason those forwarding such pictures to the sender’s family and friends (or the public in general) argue that thrusting them on others is par for the course.

To be sure, claiming privacy rights over penis pictures you have imposed on someone who did not want to see them is like suing for libel when publicized security camera footage shows you robbing a bank. Then again, there is something slightly off about forwarding photos you did not want to see on others who likewise have not consented to viewing them. In such cases, a more ethical (though much less immediately satisfying) course of action would be filing a complaint for aggravated harassment.

But not all pornographic images are wrong. Photos that have been taken and shared with the full consent of everyone involved, including the recipients, should not be banned, but rather benefit from privacy and free speech protections—because such images are not assault, but sex. And surely we would be hard-pressed to think of anything more private than that.

What’s the Connection (If Any) Between Adolescent Drinking and Rape and Violence?

@RHRealityCheck

When two adolescent boys were found guilty earlier this month of raping a teenage girl in Steubenville, Ohio, there was much discussion about rape culture, social media, and whether taking advantage of a passed out girl is just boys’ nature. Many media reports highlighted the drunken state of many of the kids present at the rape, and some argued that the girl’s drunkenness made her at least partially responsible for the abuse she suffered. Meanwhile, the boys’ drunkenness either was not mentioned at all, or was seen as making them less responsible for the attack.

One thing that didn’t elicit much disagreement was the issue of teenage drinking itself. “Where were the parents?” was a frequently asked question. “Why were these kids allowed to drink?” Alcohol and bad parenting, many people agreed, were the real culprits of this rape.

But is that really true? Does alcohol lead to rape and violence? And are parents responsible for adolescent drinking?

The answers to these questions are less straightforward than one might expect.

It is certainly true that a large proportion of violent crimes involve alcohol use. This has been attributed to a variety of factors, including the fact that alcohol inhibits self-control and limits the ability to assess risk, and the fact that some people consume alcohol in preparation for their involvement in violent acts because they believe it will make them braver and stronger.

It is also true that people under the age of 21 consume alcohol regardless of the legal U.S. drinking age, and that many young people binge drink, that is, drink a lot of alcohol over a short period of time.

Younger adolescents are, however, less likely to be involved in alcohol-related violence than they are to be involved in any other violent crimes. And when you look at violent crimes committed by a male perpetrator on a female victim, there is no significant difference between the proportion of women attacked by men under the influence and the proportion of women attacked by men who did not appear to be drunk.

In other words, the fact that a man drinks does not make him any more or less likely to attack a woman.

The influence of parenting and parental drinking on teenage behavior is also not a straight shot when it comes to alcohol and violence. While adult binge drinking in the larger community is a strong predictor for binge drinking in teenagers and college students, parental problem drinking is not—or at least not directly. To summarize a number of quite complex family studies, drinking is not a problem for adolescents in and of itself, though it is obviously not healthy in excess. Rather, the problems are how they drink, how (not if) they see their parents drink, and what they learn to do generally about their emotions and conflicts.

Parenting matters, but, especially for older teenagers, so do peer pressure, societal norms, and genetic susceptibility to using alcohol.

My motivation for looking into the correlation between these issues is not merely academic. I come from Denmark, a country where alcohol use is normalized, even celebrated, among citizens, including teenagers. As I recall it, the main drink served at high school dances back home was beer. Did that make us rape each other? My recollection is that it did not.

This recollection seems to be substantiated by facts. In a recent survey of industrialized countries, Denmark topped the teenage drinking list, while the United States came in last. But rape estimates from Denmark and the United States suggest that women and girls are equally likely to be raped in both countries, or even slightly less likely to be raped in Denmark than in the United States. To put it differently, drinking more does not make Danish people rape more.

My point is not to say that alcohol was irrelevant to the Steubenville rape case. Obviously, the girl’s alcohol-induced unconsciousness enabled the crime in some way (not that it at all excuses the violent acts). I am also not trying to exonerate these teens’ parents of responsibility. I would like to think we have some influence over our children’s sense of right and wrong, and by that I include the notion that we have a responsibility to help people who cannot help themselves.

I do take issue with the notion that alcohol and bad parenting are what caused this crime. Alcohol is a poisonous substance that does damage to your health when consumed in large or even not so large quantities. Bad parenting has much the same effect. But neither ensures that you will commit a crime.

Silence On Rape is the Biggest Obstacle to Prevention

@RHRealityCheck

I recently held a seminar on rape in war with military lawyers from across the world. We talked through a number of obstacles to prevention and elimination of sexual violence, but at the end of the seminar everyone agreed that the biggest of them all is silence. “We don’t ever get to have this conversation,” the participants agreed.

Unfortunately, this is particularly true in the countries most affected by sexual violence in war: not only is rape not talked about, but many of those who try to address this terrible crime are attacked, often violently. On October 25th, unknown men carried out an assassination attempt on Dr. Denis Mukwege, and succeeded in killing his body guard, Joseph Bizimana. Dr. Mukwege is known for his tireless work in defence of women victims of sexual violence in the Congo.

Silence also reigns in Bosnia and Herzegovina. This week, Amnesty International launched a briefing paper detailing the continued silence about the rapes in Republika Srpska, almost two decades after the war in Bosnia and Herzogovina ended. To the extent there is any attention to the widespread rapes during the 1992-95 conflict, it is focused on the perpetrators—though many are still at large. Meanwhile, the women and girls who suffered systematic rape and forced pregnancies are overlooked.

It is, in fact, a widespread phenomenon that insofar as authorities and the public at large pay any attention to rape and violence against women, this attention is focused on punishing the perpetrator. And it is, of course, important to apply criminal justice where intentional harm has been done to another person, whether physically or psychologically. However, punishment is only effective as prevention when it is seen to be applied. In the case of sexual violence and rape, only a sliver of perpetrators are ever investigated, prosecuted, convicted, and serving a sentence. For more than 97 percent of those who commit rape, it is therefore of little relevance if the law metes out 10 or 20 years of jail time to a very few: most will never spend a day behind bars.

An equally important and often woefully ignored part of guaranteeing justice is to make sure rape victims have access to the justice system in the first place, and that they receive meaningful reparations for the harm they suffered as part of the sentencing.

Neither of these issues is appropriately dealt with in Republica Srpska. Many victims of widespread rape are still, after almost 20 years, unable to talk openly about their ordeals due to post-traumatic stress disorder that has not been dealt with. The authorities have not addressed the stigma attached to sexual violence in society as a whole, and has done little to overcome harmful stereotyping about gender roles, which bleed into public perceptions about rape. As a result, many women say they were mistreated, rather than raped, and the silence surrounding sexual violence continues.

More to the point, perhaps, while the silence continues, victims do not receive adequate reparations for their suffering. “Reparations” is the term for the measures states are obliged to take to help victims overcome their ordeals, and they include both what we traditionally think of as “justice” (that is, investigations and court cases) as well as guarantees of non-repetition, compensation for the abuse, and rehabilitation. Most importantly, true reparations are meant to guarantee the victim that their suffering will never re-occur.

This—guarantees of non-repetition—is where justice for individual cases meets prevention as a whole. Unfortunately, this is also where our efforts are the weakest: if part of the reason rape happens is because we allow it to, that means that to issue a guarantee that rape will stop, we have to change. And that kind of fundamental change is incredibly hard.

The good news is that it is not impossible. There are conflicts where rape is rare, and there are relationships where violence is impossible. In my recent seminar, we talked about how to change the way our most immediate family and friends think about rape. If we all make sure the 10 persons we are closest to understand that rape is wrong and never the fault of the victim, we will have changed the world.

Hopefully, change will come soon to Republika Srpska and anywhere else where silence continues to reign.

On Savile, Sandusky, and the Power of Rape

Rape is about power. The attacker seeks to control and subdue the victim's physical and psychological integrity. When we address rape, it is therefore essential to overturn this power-imbalance and restore dignity and control to the victim. Most often, we fail miserably at this.

Consider the case of recently deceased BBC television host, Jimmy Savile. BBC leadership has all but acknowledged they preferred to suspend investigations into Savile's allegedly repeated sexual assaults on hundred of children over the years, rather than risk upsetting their star. This case mirrors the decade-long collective calculated cluelessness at Penn State football coach where evidence of Jerry Sandusky's abuse of children was routinely ignored in favour of the revered coach.

It is no wonder that less than half of rape victims file a report with the police: if those around them stand with the attacker, why wouldn't the police? And, in fact, studies show that police officers believe rape victims are more likely to lie about their assault than victims of any other crime, despite evidence to the contrary. Three percent to 8 percent of rape complaints are false -- similar to the proportion of other crime complaints.

But even when sexual assault is reported, investigated, prosecuted, and a conviction has been handed down -- the probability of this happening is less than 5 percent -- power-dynamics prevail. In Ireland last week, for example, a 29-year-old man was offered the opportunity to pay his way out of jail after he was convicted of violent sexual assault of a 17-year-old girl. The sentence rightly led to protests from pundits and lay-persons alike, though it highlights a simple fact: neither rehabilitation of the attacker nor justice and support for the victim is a priority in the manner in which we deal with rape.

The priority, it seems, is power.

Over the past decades, law-makers in many countries have responded to rape and sexual assault mostly when particularly graphic violence has been detailed on the news: a child abducted and abused, a woman forced to work in a brothel. These cases are horrific, indeed, and the suffering of the victims and their families cannot be overestimated.

However, state responses to sexual assault that are born from media attention to specific cases can, and often do, have negative consequences.

First of all, narrowly targeted responses contribute to separating the "deserving" from the "undeserving" victims. Policies that focus on "forcible rape", "legitimate rape", and rape by someone who is not the victim's spouse implicitly support the notion that some people "had it coming". The list of justifications alleged perpetrators of rape have successfully used to defend their actions is truly absurd: it is not rape if the victim was my daughter, my wife, if she was drunk, or if the rape was somehow the expression of "culture."

These justifications run counter to human rights obligations on crime prevention and protection against abuse. Every individual -- adults and children alike -- has the right to live free from violence and sexual abuse. It is a core governmental obligation to promote public safety by holding offenders accountable and by putting in place effective crime prevention measures.

And narrowly targeted responses are often not effective at preventing rape. Sex offender registration laws and community notification measures in the United States, for example, have shown to be costly to society, harmful to reintegration efforts of ex-offenders, and--most notably--without any discernible effect on public safety. Indeed, the mere fact that only about 5 percent of rapists are ever convicted should say something about the effectiveness of community notification: not very high. Add to this the fact that the vast majority of sex offenders do not reoffend, and the relative uselessness of sex offender registries as instruments of public safety becomes clear.

We can restore power and dignity to rape victims by treating rape like we would treat any other crime. That means taking rape seriously and investigating it fully. It means having the necessary equipment on hand to obtain evidence in a timely and dignified way (and not, as Amnesty International found in Alaska, making women pay for flights to get to police stations that stock rape kits). It means applying the same standard of proof for all crimes and all victims, regardless of their sexual history and marital status. And it means sentences that take into account appropriate factors like the gravity of the offence, the specific circumstances of the crime, and the age and maturity of the offender.

Rape and sexual assault are expressions of power imbalances. For prevention to work, policy makers must look at the motivation behind them -- much like they should look at the motivation for other crimes. We should examine the social forces that allow some offenders to walk away with impunity and others to be punished disproportionately.

Our approach to rape should break the power dynamic, not reinforce it.

Yes We Can! (End Rape in War)

@HuffingtonPost

Last Tuesday in New York, UK Foreign Secretary William Hague announced that the UK government will give £1M for the United Nations' efforts to end, punish, and prevent sexual violence in conflict. The donation is both commendable and necessary. Statistics on rape in war are notoriously unreliable and hard to compare and collate, but it is safe to say that civilians have been targeted for sexual assault in every conflict everywhere since forever. Most recently, news are surfacing about systematic use of sexual violence as torture in the protracted violence in Syria.

However, precisely because it would be hard to think of a conflict where sexual violence has not been used to terrorize civilian populations, it is valid to ask if this is a good investment. In other words, can we do anything useful to stop sexual assault in conflict, and, if so, is the United Nations the entity to do it?

To the first question, the answer is a resounding yes.

Sure, rape is a particular effective weapon in terms of terrorizing civilian populations, and so, from a pragmatic perspective, warring parties might to loath to give it up. But there is ample precedent for effective bans--at least on paper--of equally efficient and vicious weapons: land mines, cluster bombs, chemical weapons. So while it is the efficiency of rape as a weapon that has kept it in business for centuries, this can be no excuse to give up in advance on capping its use.

The reason that rape in conflict is completely avoidable is that the weapon is a human being, in most cases a man.

This, in fact, was for many years the main excuse for the action. "Boys will be boys," commentators and military commanders shrugged when confronted with the news that a particular platoon had raped civilians, as if men are genetically disposed to force sex on others. I have even heard well-meaning activists suggest increasing spousal visits for soldiers in active combat as a way to prevent rape in war, as if raping was an expression of sexual desire and need.

Of course, we know now that this is not true. Rape, like other sexual assault and sexual harassment, is not about attraction, desire, or sexual expression. It is about power, humiliation, and control. When we say that all men are genetically predisposed to have a pathological need to control another human being physically and emotionally it is as insulting as it is to say that all women are peaceful or weak. If I were a man, I would certainly resent the implications. Or, as Nobel Laureate Jody Williams said this week at the same event at which Mr. Hague pledged for the UK: "We need men to stand up and say: 'I don't want anyone to look at me and think I am capable of that.'"

Which brings me to the second part of my initial query: is the United Nations the best vehicle for preventing rape in war?

On the face of it, the track-record is not good. The United Nations Security Council has historically been notoriously reticent to address sexual violence in war. A 2000 resolution known mostly for its number (1325/2000) included calls to end impunity for rape and to prevent such atrocities. Still, it took almost 8 years before this abstract commitment was translated into something as ephemerally concrete as "let's start getting real information on what is happening." It took another 12 months plus before the Council thought to create a dedicated office to process the gathered information and coordinate scattered UN efforts on rape in war, and an additional many months before the office was at least partially staffed and funded. (It is this office the UK has pledged to support). Meanwhile, rapes continue, with the main discernible difference being that we now know about it.

At the same time, UN efforts, troops, and aid officials may be able to bring support and supplies where community efforts are stretched to the limit. In fact, it is not so much a question of identifying one key road to change as it is of accepting that we all have work to do. That is the thrust behind the International Campaign to Stop Rape and Gender Violence in Conflict, launched this year in May by the Nobel Women's Initiative. The campaign asks each of us to make a pledge to help end rape in conflict. William Hague pledged £1M on behalf of the United Kingdom.

What will you pledge?