s*xual assault
3 Jun 2009
When Hero Worship Turns Sour
A nightclub in Kings Cross has taken a stand. Photo by James West
He was a famous football player. She was a 19-year-old waitress. The unequal power relationship between Matthew Johns and "Clare" needs to be taken into account in any debate about the incident
The debate about sexual assault following the incident in which Matthew Johns and other footballers were involved is still confined by a very old and tired framework. The discussion about whether the incident constituted a wrong to "Clare" has mostly revolved around the question of whether she agreed in some sense to the acts, or whether her complaint to Four Corners merely registered regret after the fact.
That the discussion in Australia has remained within such a framework is cause for concern. The reluctance of many people to recognise sexual abuse in the publicly available accounts of the Auckland incident confirms the tenacious hold on the collective imagination of a version of sexual assault that only infrequently corresponds to what is known of patterns of rape and abuse.
Try this thought experiment: what picture comes into your mind when you read the word "rape"? A probably deranged stranger jumping from behind a bush to attack a woman walking alone on a dark street? The further an incident of sexual assault deviates from this kind of picture, the more difficult it is for the public to credit this as abuse or violation.
Part of the reason for the tenacity of the stranger rape picture is that discussions of sexual assault in Australia focus on very narrow questions of consent. There have been decisive shifts in international discussions about sexual violation that have largely gone unnoticed in Australian media and popular discourse, and even in academic circles.
In international discussions, the focus is shifting away from narrow questions of consent to instead foreground the dignity and integrity of the human person. The protection of all people against impairments of dignity or invasions of personal integrity is not reflected at every level of Australian law, public policy or popular culture. It is around the concept of autonomy that the protection of sexual dignity and integrity needs to be organised.
What makes an act rape? It can be a sexual act without consent, or an act where the consent is produced by actual force, by the threat of force to the victim, or by a threat to harm a third party. An act can also be defined as rape if it takes place under circumstances which render the victim unable to make an informed and compelling refusal. What these considerations mean is that if autonomy is to be the focus, our attention needs to be directed not only to the presence of agreement, but also to the circumstances in which agreement to actions is formed and communicated.
One aspect of those circumstances is the vulnerability of the victim. By vulnerability we do not mean inherent or feminine weakness, rather the term refers to those who have been made or rendered vulnerable by the circumstances in which they place themselves or in which they are placed.
The elevated status of these football "heroes" has led to public excusals of their acts of sexual misconduct, pity for Matthew Johns, and slurs on Clare's reputation. However, it is this very same heroic status that should lead us to recognise the obviously unequal starting position that formed Clare's vulnerability. Johns continues to insist that she was consenting. However, this "consent" is only relevant to the point that she was a free and equal individual to give that consent, at all stages of the sexual acts.
We should recognise in this situation the foundations of inequality before any negotiations between Clare and the footballers might have begun: not only the difference in number, but the difference in age and social status, the fact that they were famed footballers, and in the words of the hotel owner, "a great bunch of guys" patronising the bar where Clare worked. Clare and the footballers were by no means on an equal footing in the circumstances where agreement to the acts was supposedly formed.
Criminal and civil laws, and their interpretation, would look quite different if we were to think about sexual assault in accordance with the notion of autonomy, if we were to see the wrong of sexual assault as lying in the violation of the autonomy of the person. One of the other important shifts that would take place is that we would not count passivity, silence or ambivalence as consent.
One way to uphold sexual autonomy is to place value on the communication of consent. For example, rather than asking Johns whether he honestly believed that Clare was consenting, we might inquire as to the efforts he and others made to ascertain mutuality of desire. That is, to use the words of American scholar Stephen Schulhofer in his 1998 book Unwanted Sex: The Culture of Intimidation and the Failure of Law, the question might be: what efforts were made to ensure that there was "an affirmative indication of actual willingness" on the part of all of those involved, to all of the actions involved.
What is missing from the public accounts of the Johns case is any evidence of the communication of affirmative consent by Clare. Of course, in some respects, any determination as to whether this was a consensual sexual act or a case of "rape" must be heavily influenced by the dearth of evidence in the public domain about what actually took place. The culture of silence permeating the football fraternity has left us with two conflicting stories, as is frequently the case in allegations of sexual assault.
According to Clare's story, the situation in which she communicated willingness to some acts with some men changed, as did the respect for her sexual autonomy. There were, however, more than two witnesses to the event, although all except Johns have remained notably silent for reasons that go beyond protecting their own reputations to protecting the mateship of the sporting fraternity ruled by their own laws.
Matthew Johns claims of the Auckland incident, "At no point did [Clare] object at any stage to what was going on". But a mere lack of objection is not enough. To count as autonomous consent, agreement to sexual acts must not only be uncoerced by force and fraud, but also uncoerced by a background of intimidation, aggressiveness, abuse of trust or unequal power relations. And regard for the autonomy of others requires both a mutuality of desire, and its explicit communication.
What has been badly termed "group sex" — in this case, sexual acts between one woman and an unknown number of men — is yet another example of the convergence of football and sexual violence. The sensational aspects of this case about our "fallen football heroes" have distracted us from the central questions of whether the woman could in fact have given her autonomous consent under the circumstances, and how each and everyone of the men involved discerned this consent.
We all know that stranger rape is rape. But the reckless indifference as to mutuality that is clear from accounts of the Johns incident, together with the negligence as to ensuring explicit communication of any mutuality, also constitutes a violation in the contempt that it shows for the autonomy of others.
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"Abuse of power comes as no surprise." Jenny Holzer.
http://gardenofselfdefence.blogspot.com/
I find the lack of disclosure of the other participants somewhat irresponsible.
Several other men were involved and only Matthew Johns was named. This smacks of a culture of secrecy, cover ups and a history of similar lack transparency would tend to support this. Has Johns publicly apologised to the victim yet?
Every time one of these incidents surfaces, the same pattern appears in the media. Perpetrator is martyred for the sincerity of the "regret" displayed publicly. Co-offenders are protected from/by the media and the victim is vilified in a manner that reduces the perceptions of the perpetrators as being responsible. In this case they are grown adults, well paid and more than capable of adult behaviour and making mature decisions. Why don’t they? Why aren’t they expected to behave like adults?
This pattern of behaviour and the reporting of these incidents has a long history and not just related to football. The story of the rape and murder of 14 year old Leigh Leigh in 1989 in Newcastle isn’t much different. http://www.abc.net.au/rn/talks/bbing/stories/s10729.htm It involved a group of young men and girls all known to each other. Those involved were all juveniles. Most 16 and under. Leigh Leigh’s name was vilified long after she was dead. That she was raped and murdered was presented by the media and local gossip as somehow of less importance than whether or not she may have been a slut.
Only the ages of the victims and the notoriety of the perpetrators varies. The media response doesn’t vary much. I could write the copy for next incident myself and fill in the names and places when it occurs.
"The story of the rape and murder of 14 year old Leigh Leigh in 1989 in Newcastle isn’t much different."
I really, really, beg to differ.
What a very great deal of conjecture.
You might like to know that the incident under discussion took place in Christchurch not Auckland.
Never let the facts get in the way of a good conjecture etc
Brillant story, this was sent far and wide, thank you!
The "ABUSE of POWER" was the Four Corners story itself which sought to destroy a single individual for a group act on the flimsiest of evidence from an unreliable witness.
Shame on Tony Jones and QANDA for pursuing the issue and therefore the individual on National Television three nights later.
An eye for an eye is not contemporary justice in our society or courts.
Or is it?
Wiki tells me "Statutory rape differs from forcible rape in that overt force or threat need not be present. The laws presume coercion, because a minor or mentally challenged adult is legally incapable of giving consent to the act."
This sounds like what you’re describing here, with the person of a higher social status effectively making the lower person incapable of giving consent.
This takes it well beyond social status. A really hot person having sex with an ugly person could also be considered to be guilty of rape.
Back in the 1980’s, when huge US Navy flotillas regularly came to Perth a friend of mine, a white Australian woman, used to enjoy picking up Black Marines and sailors at the local night clubs. She was very self-possessed about it.
One night after choosing a guy she noticed that 6 of his shipmates had missed out on meeting partners and she invited the whole lot of them home. She regretted the decision.
I would like to know Helen Pringle and Ramona Vijeyarasa’s take on that. Where did the power relationship lie? Was it an example of a person making a stupid decision and not liking the consequences (which is how my friend described it to me)?
I don’t reject Pringle and Vijeyarasa’s line of thinking but it seems to raise more questions than it answers.
I missed the Four Corners program and only have a scant knowledge of the Johns case. If the woman had been, say Paris Hilton or some other wealthy celebrity, and the men involved were homeless street kids, but the sexual event had been just as unpleasant, where would that leave the “unequal power” argument?
What if the sexual event had been pleasant for all involved? What of the “unequal power” relationship then? Would it go under the heading of freely consenting adults doing what they want in private? Wouldn’t that mean that “unequal power” only applies when someone is left feeling bad?
If the Johns case was sexual abuse based on domineering behaviour then it’s reprehensible. But Pringle and Vijeyarasa seem to be arguing something different to that.
No-one is autonomous. There is no evidence for people, their goals or their motivations, existing outside of their environment and history - both physical and social. There is plenty of evidence to show that everyone is influenced by their past and current environment. Whilst one may think the actions of Johns and the other footballers was criminal or not, or that the woman involved was willing or not, there is no justification for thinking that the behaviour of the footballers was strictly self-generated whereas the woman’s was not. All participants were influenced by both the situation and their personal histories to the same extent. By privileging one particular history as valid, substantive or influential and diminishing other histories as ineffectual or irrelevant common humanity is rejected in favour of selective attribution of human qualities according to subjective preference.
Barry - Why was it necessary to list their colour and hers? I lived in Darwin for 10 years and the US ships came in there too. There was stories of regret and extreme abuse of power - the fact is they did it cause the sailed out the next day and had protection from their own defense force and agreements with our government for ‘downtime’. Not because of their colour!
There are many problems with the Johns affair. First of all, the way the media has constructed it as Mathew Johns vs Clare is disingenuous. It was several strong men vs Clare. To emphasis the point the media should have dubbed the other men and given them false names. That would have made the reality of situation clearer. If we remember this, than the power imbalance immediately becomes clear.
Secondly, people seem to think that they have some kind of inherent ability to know how sexual abuse victims would act. These assumptions have allowed sexual abuse to go under the radar for far too long and has allowed rapists to say, ‘Oh, well, she didn’t seem all that upset afterwards.’ These attitudes have also rendered adults useless at detecting child abuse.
Society still blames victims of sexual abuse because it cannot accept the fact that it continues. It’s far too uncomfortable to suspect that your mate, or your uncle, might rape you or one of your friends. It’s far easier to blame the victim for ‘asking for it’ or accusing them of lying. These are issues that will not go away because society continues to minimise the actions of the perpetrators whilst simultaneously magnifying the actions of the victims.
As for group sex in general - there are many people who engage in group sex without this level of fall out. Why? Because they are honest about it -they don’t lure someone with a threesome and then invite others in on the fun and then take absolutely no action to ensure it’s actually consensual.
This story is intrinsically distorted when the other men present have not accounted for their involvement. Unlike the other two, they have got off scot-free from media scrutiny. This is not an issue of name-and-shame, but a lack of anything approaching a complete account. The invisibility and silence of these men makes the torrent of comment and opinion so unsatisfactory in trying to understand what happened. So we draw on our own experience, values and prejudices in filling in the gaps, and are all back where we started. Just where the sponsors prefer us to be, I expect.
So what if she consented! Whether there was consent or not, this experience has clearly traumatised her.
Ngunawal, surely the issue of racism is a classic example of power differentials. That’s why I mentioned it.
I spoke with lots of those US service people in the flotillas. Many of the black sailors and Marines were ‘crime conscripts’. That is they were swept up in the racist US ‘justice system’ and, being too poor to afford lawyers, given the choice by judges – go to jail or join the services.
That is “extreme abuse of power”, as you mention or as Helen Pringle and Ramona Vijeyarasa put it, people made “vulnerable by the circumstances in which they place themselves or in which they are placed”.
That doesn’t justify rape and abuse, but Pringle and Vijeyarasa raised the question in precisely those terms and demanded a discussion of it. They invited us to conduct a “thought experiment” and my mind ran to all the problematic examples of messy personal choices that I’ve seen people make over the years.
I am very interested in issues of personal power and integrity, the very issues on which Pringle and Vijeyarasa base their thinking. But I’m also aware of how the Vatican uses exactly those terms to justify its attitudes towards women and foetuses.
The idea of shifting from focusing on “consent” to foregrounding “the dignity and integrity of the human person” appeals to me but I can’t answer the quandaries it presents. I am hoping that others are able to tease out the issues clearly.
12 v 1. Sexual assault by the many. A no brainer.
Maryj, “no brainer” is available as a decision making tool if you use the “consent” model in relation to sexual assault. A person either consents or they don’t. That’s Andrew Johns’ line.
However, the article that sparked this talks about “sexual assault as lying in the violation of the autonomy of the person”. That opens up a whole universe of possibilities, of which the article demands a discussion.
What if this logic were extended into the realm of people who consensually agree to live in violent relationships? At what point does the “violation of the autonomy” of an individual become a social issue requiring state intervention against their own wishes?
It’s clear enough with children but what about adults?
The Howard government, followed by the Rudd government, intervened into Aboriginal communities in the NT on the basis of a similar argument. They say that protecting the personal autonomy of Aboriginal women and children is a higher calling than maintaining the Racial Discrimination Act and Aboriginal land rights.
I don’t believe them, by the way. But that is separate to the line of their argument.
She didn’t consent to being in the room with 12 men. Consent is not the issue in this case and wasn’t from the moment the 10 extras walked into the room.
What babble are you on about Barry.
My apologies for confusing Auckland and Christchurch (twice!) and I take responsibility for the mistake. Helen
Maryj, Pringle and Vijeyarasa complain that “discussions of sexual assault in Australia focus on very narrow questions of consent” and I guess that you are proving them right.
They demand that the focus be shifted away “from narrow questions of consent to instead foreground the dignity and integrity of the human person.” They want the protection of sexual dignity and integrity to be organised around “the concept of autonomy”.
I find that language attractive but I can immediately see a whole range of problems with it.
You clearly don’t. So, why aren’t you arguing with Pringle and Vijeyarasa’s article?
Barry I can see your point, but equally, I can see how the narrowness of framing sexual assault in terms of consent and perceived consent is highly problematic. There are a whole range of problems with what currently exists. The reason why we do not question those who frame it as such is because that is the norm. This article is a challenge to that norm, which I think is important.
Also I think this argument is quite semantic, you cannot give consent without autonomy. So when you raise problems of framing it as autonomy, you are also raising issues around consent.