Why victims’ sexual history is irrelevant
Sophie Beaumont wants to talk about why we allow women’s histories to be dragged into trials in an effort to allow men to go free
“Grace should have been safe here” were the words our Prime Minister used when it was confirmed British backpacker Grace Millane had been killed. She absolutely should have been safe here when she was alive, but we should have done more to protect her memory in death.
The case has just concluded, I’m not going to speak to the verdict because that was a small mercy in the grand scheme of things. What I want to speak about is the conduct of the defence team and question why it is we allow women’s histories to be dragged into trials in an effort to allow men to go free from harming - or in this case killing - them.
As the Crown prosecutors were wrapping up their evidence in the Grace Millane case, the long-awaited and hard-fought Sexual Violence Legislation Bill had its first reading. The primary aim of this bill is to prevent re-victimisation of survivors of sexual violence if they choose to pursue justice through the court system. Research has consistently shown that of the 10 percent of victims who report sexual violence to the police, a minority end up with a court date, and those who go through the court process all found it “traumatic” and “degrading”.
A key section of the Sexual Violence Legislation Bill is that a woman’s sexual history will be out of bounds. This is to clarify the boundaries of consent - as Justice Under-Secretary and Green MP Jan Logie summed up: “You can consent to sexual activity with somebody at a particular time and not at another. Consenting the first time does not automatically [mean] you have consented the second time. Choice matters.”
Consent is an ongoing concept - it is not a one-and-done situation therefore, in the context of sexual violence cases, the sexual history should be (and once the bill passes next year it will be) completely irrelevant. This will hopefully mean that in sexual violence cases any prior sexual contact between the parties involved, as well as any information about the nature, frequency, and quality of sex that the victim had prior and after the incident of harm is left out of criminal justice proceedings.
We need to reject the idea that women’s actions absolve men of responsibility for harming or killing them.
In relation to the Millane case, we saw the same conflation of consent by the defence team. Whilst this was a murder rather than a sexual violence case, we saw a specific focus on Grace’s sexual activity from the defence in order to direct the narrative towards the idea that she had not managed her sexual safety adequately.
Over two days and then again in the closing statements, we heard ‘evidence’ from an ex-boyfriend, a man who she had slept with (and who admitted to choking women without explicit consent), and two men who she had messaged with on various dating apps.
None of the statements given by these men can or should inform a jury as to what happened the night Grace was murdered. Why? Because consent is an ongoing concept - it doesn’t matter if she consented with them, that does not inform as to whether she consented on the night she was killed. Only one person would be able to testify if the sexual choking that occurred that evening was consensual - Grace. Further to this, as Justice Simon Moore concisely put it in his summary: “No person under New Zealand law can consent to their own death.”
What we see here is that the defence was muddying the concept of consent, something our justice ministers (and countless activists before them) recognised as a strategy used to undermine women and blame them for the harm they suffer at the hands of men. This is a tried and tested strategy. The defence purposefully used Grace Millane’s sexual history to blame her for her own murder.
Why do I say purposefully? Well, I’ve been a researcher, and teacher in the area of violence against women for some years and when I say tried and tested I mean it. Google “victim blaming” or “things defence lawyers say in rape cases” and you’ll see what I mean (warning: some of the things you’ll find are horrific).
They spent two days picking apart Grace’s sexual history, the emphasis being that because she had, in the past, enjoyed sexual choking, the man who choked her to death was not at fault. As defence lawyer Ian Brookie put it: “she was encouraging him to this”, “this is what she liked”, and “he is just a young man doing what women want him to do in the bedroom”. These statements clearly align with a victim-blaming strategy - the man accused is framed as the innocent party who was just trying to keep up with a woman whose sexual desires were the reason for this whole unfortunate scenario.
If that wasn’t horrific enough, the defence employed more insidious tactics in what I believe was an effort to subvert any new knowledge, about the dynamics of trials where men harm women in a sexual context, that the jury may have in a post-#MeToo era. In the opening statement, defence lawyer Ron Mansfield stated very clearly that “blaming and shaming” Grace was not their intention and that the jury should not judge her for what they (the defence) were about to present as evidence.
This approach was a particularly noxious form of gaslighting - where one person tries to convince others that their experiences of events are incorrect. To tell a jury that you don’t intend to blame the victim, and then spend two days trawling through her sexual history to try and establish that she wanted to be choked, is blaming the victim.
This is vitally important to recognise for what it is - a conscious effort to subvert the jury's awareness of victim-blaming strategies. In a post-#MeToo world the general population is more aware of how women are framed in cases of male violence. Defence lawyers therefore need to mitigate any impact that could have on how they win their cases. When people and strategies change they don’t do it radically - they look at what they’re currently doing and see how that can work in the new context.
When cases where men have been accused of causing harm to women go to trial, particularly in a sexual context, we see devastating patterns of victim-blaming. Radical change is what we need to see in wider society to prevent this strategy or new iterations of it from continuing to work though.
We need to reject the idea that women’s actions absolve men of responsibility for harming or killing them. We need to reject the idea that women’s sexual experiences and preferences cause them to be assaulted or killed. We need to engage everyone, but particularly men, in quality consent and violence-prevention education. We need a victim-centred approach to criminal justice where, even in death, the person who has been harmed is considered the priority.
We need to do this because the compounding harm of the current strategy is staggering and unacceptable. I feel for anyone who has had to go through that, and to the Millane family I reiterate, your daughter and her memory should have been safe here - I’m so very sorry that she wasn’t.
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