Is “high-tech lynching” of rape accuseds a new form of criminal punishment?

2014-12-04 15:20

IMAGE: Wikimedia

On 1 July 1991, President George H. W. Bush nominated Clarence Thomas for the Supreme Court of the United States to replace Justice Thurgood Marshall. Thomas was going to be the second Justice of African descent to take a seat on the Court’s prestigious bench.

Weeks into his contentious confirmation, allegations of sexual impropriety emerged. The media feed-frenzy threatened to scuttle his hopes for a seat on the bench. On 11 October 1991, Thomas appeared before the Senate Judiciary Committee to give his side of the story and he reared the debate on its head.

‘This [hearing] is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It's a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching,’ he told a visibly mystified Committee. Senators swallowed balls of fur and the matter was laid to rest.

[embed]https://www.youtube.com/watch?v=egTyaIAaqz8[/embed]

When I first encountered the remarks a few years ago, I was repulsed. Clearly, I thought, Thomas had abused black American history to evade accountability. In the process, he has demonized his accuser by comparing her and her supporters to a lynch mob. I realize now that I was wrong.

Clerance Thomas had a point. There is something overwhelmingly iniquitous in the way we deal with people accused of rape and sexual impropriety. It is unfair, abusive, and it defies the foundational principles of justice.

Take, for example, the two most recent examples of this phenomenon: Jian Ghomeshi and Bill Cosby.

Nine women accuse Ghomeshi of sexual assault. The allegations by several of the women are, basically, that Ghomeshi was abusive during sex, without consent. The women report feeling violated and assaulted by Ghomeshi’s strange sexual practices, which include throttling, slapping and using abusive language. These are serious allegations.

In the case of Bill Cosby, over a dozen women accuse him of drugging and raping them.

Natural justice dictates that both Cosby and Ghomeshi must answer to the allegations before an impartial judge or a jury of their peers. This, however, is not the case. The allegations prosecuted in the media, a forum that has little regard for the rights of the accused.

Toronto police report that they are finally investigating four charges of sexual assault against Ghomeshi. Save for a civil suit that was settled out of court in 2004, to my knowledge, no charges were ever filed against Cosby. Most of the allegations took place in the early 1980s, which means prosecution is impossible due to statutes of limitation.

A question worth asking is whether we have created a parallel system for punishing rape accuseds. Have we created a new court were sanctimonious journalists and activists cart the roles of prosecutor, judge, and jailer? Do laws of natural justice apply to this court?

A justification for prosecuting rape accuseds in the media rather than in the courts as Reva Seth, one of Ghomeshi’s accusers, puts it, ‘Even if I had wanted to do something, as a lawyer, I'm well aware that the scenario was just a "he said/she said" situation. I was aware that I, as a woman who had had a drink or two, shared a joint, had gone to his house willingly and had a sexual past, would be eviscerated. Cultural frameworks on this are powerful.’

Tasneem Raja, writing for Mother Jones, cites ‘depressing statistics on rape convictions, and how the justice system often re-traumatizes victims of sexual crimes’ as justifications for not using the justice system.

Essentially, what Seth and Raja are saying is that rape victims are better off prosecuting their claims in the media, where their allegations are treated as matters of fact, rather than subjecting themselves to the scrutiny of a court of law. Does this not smack vigilantism?

While Ghomeshi will finally get the opportunity to place his version of events before an impartial arbiter, Cosby will not. The suggestion that Cosby should defend himself to belligerent journalists is, frankly, absurd. Cosby’s lawyers recently responded to Buzzfeed’s enquiries with a letter. Buzzfeed, without providing much context, dubbed the letter an attempt to “discredit” the accuser.

If the same media that is prosecuting Cosby rejects his response out-of-hand as an attempt to discredit, how else does he advance his side of the story?

It is true that adversarial justice systems are generally unfair to victims of rape and sexual assault. Aggressive prosecutors and defense attorneys often pursue invasive, sexist and dehumanizing lines of questioning. Does this mean we must abandon criminal prosecution altogether? Or, does it mean we must pursue reform through democratic means?

Striking a binary choice between the rights of the victim and accused is too simple. Diminishing rights of rape accused creates incentive for false accusations. It does not solve the problem but exacerbates it. Allegations of rape and sexual assault have a devastating effect on the accused. We must, in all fairness, presume the accused innocent until proven guilty.

Our commitment to women’s rights should not be limited to media activism and to signing of online petitions calling for accuseds to be punished civilly without trial. We must take the harder step by pursuing legal and social reforms. Reforms must include, for example, repeal of statutes of limitations, producing standards for examining victims and tracking of investigations.

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