From #MeToo to #IBelieveHer: the fight against the limits of law

#IBelieveHer protests in Ireland are an example of women leading the struggle for a better society.

This is a previously unpublished piece. It was written in March 2018, in response to protests in Ireland (North & South) against the acquittal of two Ireland international rugby players accused of rape. It was not accepted for publication. Another (shorter) piece that I wrote on the protests was published, and can be read here.

On Thursday 29th of March thousands of people took to the streets in cities across the island of Ireland. The protests were in response to the acquittal of two men (both of whom have played for the Ireland international rugby team) accused of raping a young woman (she was 19 at the time of the incident). The main slogans – #IBelieveHer and #WeStandWithHer – expressed solidarity with the young woman and drew attention to the injustice of the criminal justice system.

(Image source: https://pbs.twimg.com/media/DZdSEtEW4AA7wrb.jpg:large Fair Use)

The protests, like the #MeToo campaign, drew attention to the way in which some men in positions of power abuse women for their own sexual gratification. WhatsApp correspondence between the men involved displayed blatant misogyny. One of the accused, Gary Olding, boasted: “we’re all top sh***ers”, “there was a bit of spit roasting going on last night fellas.”, “It was like a merry go round at the carnival” and “she was very very loose”.

(Image source: https://pbs.twimg.com/media/DZnplY6W4AAXEhF.jpg – Fair Use)

The limits of law

The protests also drew attention to ways in which the criminal justice system is inadequate in cases of rape. As a post on Facebook put it:

“Well I mean that’s how it works for any crime, innocent until proven guilty and all that, however with rape and sexual assault cases they have to prove it was non-consensual, which means the entire trial NEEDS to be based on circumstantial evidence. Because it is literally a “he said she said situation”… The justice system is not set up for this however, so really it is next to impossible to be proven guilty for rape or sexual assault unless you have video evidence (and sometimes not even in that case).”

Justice, with scales in one hand and a sword in the other, is portrayed as blind. Justice, we are told, does not take sides. All are equal in the eyes of the law. Justice assumes innocence, until guilt is demonstrated. Justice weighs up the evidence and, where guilt is proven, dispenses punishment. Equality in the eyes of the law, however, is also blind to the inequality that exists outside of the courtroom. This was expressed by the woman at the centre of the rape trial. In text message correspondence a friend urged her to report her sexual assault experience to the police. In response the woman said: ‘I’m not going to the police. I’m not going up against Ulster Rugby. Yea because that’ll work’. Her sarcasm, (‘because that’ll work’), expresses her recognition that there is a very low conviction rate in rape cases. Her use of the phrase ‘going up against Ulster Rugby’ expresses her sense that it would not be just any individuals that she would be challenging, but powerful individuals. This inequality was reflected in the fact that the rugby players could hire expensive lawyers, while the woman had to rely on a regular state prosecutor.

There is a basic contradiction between a justice system that aims to treat all parties as equal in the eyes of the law, while also colluding in the inequalities of society. This contradiction is not, however, due to hypocrisy on the part of judges or manipulation by the powerful. In capitalist society both the law and the market are based on the principle that relations between two parties are entered into on the basis of freely given consent.1 All are equal in the eyes of the law, because all are assumed to be competent individuals. They are assumed to be free and willing participants who consent to the exchange.

[ADDED on 1st November 2020 – The labour contract, which is understood as a contract between two consenting parties, employer and employee, is not a coercive relation. We, as workers, are not forced to sign the contract by the employer. Often we are actually glad to get the work, and will sometimes even sign-up to a contract that we are not happy with. As workers, however, we only freely enter into the labour contract in a limited sense. In a capitalist society, workers, as Marx noted, are forced to seek work, because we do not possess our own means of subsistence (historically enclosure,2 and other acts of forcibly appropriating the means of subsistence of commoners, forced peasants to become “free” labourers – free to sell their labour, or free to starve).3 The coercion exists outside of the labour contract. The labour contract, however, relies on this coercion, because if we workers had our own, independent, means of feeding, clothing and housing ourselves, why would we willingly subordinate ourselves to an employer?]

Using the law to change society?

Rape, by definition, does not involve consent. It is an act of dominance of, at least, one person over another. One response to the difficulty of gaining a conviction in rape cases has been to try to lower the standard of proof required for a guilty verdict, by altering the ‘beyond reasonable doubt’ criteria. Those who advocate changing the law, in this way, want to compensate for the inequalities that exist outside the law. The problem, however, lies in a social system which reproduces gender inequalities. Changing the law does not get to the root of the problem. Therefore, changing the law will not eradicate the problem. Consequently, the proposal to change the law amounts to a demand for more extensive punishment. This approach is a threat to human freedom because it would hand more powers to the state and open the door to innocent people being wrongfully convicted.

Another response to the difficulty of obtaining a rape conviction is to try to formalise consent. Reuters reported on an example of this in early 2018 when they noted that: ‘A Dutch startup is launching an app which will allow people to give legal consent to sex via their mobile in an initiative spurred by Sweden’s plans to bolster its rape law’. At colleges in Ireland, the United Kingdom and the USA there are initiatives to encourage students to explicitly seek consent for sexual relations.

The logic of formalising sexual relations leads to the erosion of the principle of innocent until proven guilty. The demand for explicit consent in advance, is a demand for society to make the default assumption that sexual relations are non-consensual (i.e. that they are rape or sexual assault unless consent is formally sought and given). The demand to formalise sexual relations brings the law into sexual relations right at the very beginning, by requiring those involved to treat themselves as consenting parties entering into a contract. These moves are dehumanising because they treat sexual encounters as if they are exchanges of sex as a commodity. As Josie Appleton has put it, these developments propose:

‘a new model for sexual relations, as aseptic, cool and contractual, not unlike that of a prostitute and her client. Everything must be discussed in advance and explicitly agreed, and the sex act becomes a playing out of the “deal”’.

Critics of the attempts to change the law or formalise sexual relations have a point, but their arguments amount to a defence of the status quo. Those who defend the status quo suggest, explicitly or implicitly, that the criminal justice system is best placed to deal with the problem of rape and sexual assault. Often, they recognise that the law is inadequate. Often, they are not blind to the limitations of the law. Their legitimate concern is that the alternatives would be even worse. The other side of the argument, those who want to change the way that society deals with the problem of rape and sexual assault, are right to say that the status quo is unacceptable. Both sides agree that the law needs to deal with rape and sexual assault. If, however, the focus remains on the law, rather than on the social conditions that create rape and sexual assault, the underlying problem will be irresolvable. The answer to the problem must come from outside the law.

Beyond the law

The spontaneous mobilisation of thousands of women onto the streets expressed a desire for a better world. A world in which women are not treated as objects for the gratification of the lusts of misogynist men. The protests express a movement reaching towards human liberation. At the rape trial protests these aspirations for a better society, where women have more than formal equality with men, were articulated through slogans like “End slut shaming and victim blaming”, “I’m a woman, not a merry-go-round” and “This is not ‘lad talk’, this is misogyny”. The position of women in society, as these slogans indicate, is not going to change by changing the law. A more fundamental transformation of society is required, one which is characterised by truly human relations. The rape trial protests in Ireland express a movement towards this better society.

(Image source: https://pbs.twimg.com/media/DZoLDx4W4AIwDPN.jpg – Fair Use)

This movement, like all movements for human freedom, contains many contradictory elements. There are some who seek to utilise the movement for particular ends, such as promoting a campaign for consent to be part of the sex education curriculum in schools. It will be no surprise to most people on the left that there will be elements in the movement who are seeking to take leadership of the movement and utilise it towards their own ends. In as far as they succeed, these elements drag the movement away from the goal of human freedom.

There were other people on the protests, possibly a majority, who see the issue of rape and sexual assault as just one manifestation, of a larger issue of patriarchal bias in society. The movement for human freedom is more than the sum of its parts. The forging of a movement for human freedom can be seen in the attempts to link together different issues. This can be seen in the placards that drew links between the acquittal and the campaign for abortion rights in Ireland, North and South. One placard in Dublin, for example, read: “Fáilte go hEireann [Welcome to Ireland] Where ‘TOP SHAGGERS’ are NOT GUILTY and a woman can go to jail for 14 years for using an abortion pill” another, in Belfast, said “‘Women in NI [Northern Ireland] face life in prison for using the abortion pill”.

The broader movement towards human freedom, beyond the particular issue of rape and sexual assault, can be seen in the inclusion of men in the protests. These men, implicitly or explicitly, recognise that the struggle against misogyny and patriarchal domination is not an issue of women against men. Placards with slogans such as ‘What if it was your daughter?’ acknowledge love in gendered relations. The acceptance of men by the women protestors indicates that they see misogyny and patriarchal domination, not men, as the problem. There were men present in acts of solidarity, but it was women who organised and led the protests. The leading role of women reflects the fact that they are at the receiving end of misogyny and patriarchal domination.

The protests are part of the broader movement by women in Ireland to determine their own future. As Eve Currie noted in a WSS [With Sober Senses] article on the pro-choice campaign “Irish women are setting the agenda for a generation to come, telling their politicians ‘you don’t represent us’ and ‘only we can represent ourselves’.”

Footnote

1 Evgeny Pashukanis argues that Marx:

‘envisioned the transition to developed communism, not as a transition to new forms of law, but as the withering away of the legal form in general, as the liberation from this inheritance of the bourgeois age which the bourgeoisie was itself condemned to endure. At the same time Marx indicates that the basic condition for the existence of the legal form is found in the economy, in the matrix of labour expenditures according to the principle of equivalent exchange, i.e. he revealed the innermost connection between the form of law and the form of commodities. Depending on the condition of its productive forces, a society which is compelled to preserve equivalent exchange between labour expenditure and compensation in a form even remotely resembling the exchange of commodity values, will be compelled also to preserve the form of law. Only proceeding on this basis is it possible to understand why a whole series of other social relationships assume a legal form’.

2 For a brief history of enclosure, that covers the period of industrialisation in England up to similar developments in the global South in the twenty-first century, see Lesjak, Carolyn. “1750 to the Present: Acts of Enclosure and Their Afterlife.”. Marx refers to enlosure, and other forms of appropriation of the means of subsistence, in Capital, as in this extract from Chapter 27:

The parliamentary form of the robbery is that of Acts for enclosures of Commons, in other words, decrees by which the landlords grant themselves the people’s land as private property, decrees of expropriation of the people. Sir F. M. Eden refutes his own crafty special pleading, in which he tries to represent communal property as the private property of the great landlords who have taken the place of the feudal lords, when he, himself, demands a “general Act of Parliament for the enclosure of Commons” (admitting thereby that a parliamentary coup d’état is necessary for its transformation into private property), and moreover calls on the legislature for the indemnification for the expropriated poor.

3 In the Grundrisse Marx writes that:

It is already contained in the concept of the free labourer, that she is a pauper: virtual pauper. According to his economic conditions he is merely a living labour capacity, hence equipped with the necessaries of life. Necessity on all sides, without the objectivities necessary to realize herself as labour capacity. If the capitalist has no use for his surplus labour, then the worker may not perform his necessary labour; not produce his necessaries. Then she cannot obtain them through exchange; rather, if she does obtain them, it is only because alms are thrown to her from revenue. He can live as a worker only in so far as he exchanges his labour capacity for that part of capital which forms the labour fund. This exchange is tied to conditions which are accidental for her, and indifferent to her organic presence. He is thus a virtual pauper.

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