BY EFFIE DEANS
It is terribly important both for the world and for Joe Biden that he ceases to be president when his term ends. It is cruel and unusual punishment that a man obviously suffering from dementia should be expected to do any more than relax at home. It is dangerous that such a man is president when the world faces a serious threat from Russia and a still more serious threat from China. It is for this reason above all that I hope that Donald Trump does not win the nomination to be the Republican candidate. A Republican candidate in his forties or fifties will beat Biden easily.
I became more and more dismayed with Donald Trump through his presidency, but the way he left it dismayed me more than anything else. Politicians have to accept defeat even when they think they were robbed, otherwise we don’t have democracy. Let the courts decide if anything untoward happened, but otherwise congratulate your opponent and walk away.
But despite my opinion of Trump, the recent civil case where he was convicted of sexual assault, but not rape in 1996 demonstrates again how the law treats sexual cases differently from any other case.
If Trump were accused of committing a burglary in 1996, the police would require some evidence other than a single witness statement that he had indeed committed this crime. For instance, there would have to be evidence that Trump had broken into a property. There would have to be evidence that something had been stolen from that property and that it was in Trump’s possession. Without any such evidence it would be considered absurd to believe someone who merely said I saw Donald Trump committing burglary.
But with no more evidence than would be available in the burglary case Trump has been convicted of the more serious crime of sexual assault simply because one witness, who couldn’t remember when the attack happened, said that it did.
But if it is true that Trump committed sexual assault in 1996, but not rape as the jury must have believed, this means that the person he supposedly sexually assaulted was not raped as she claimed, which must logically mean that she was not telling the truth about the rape. But if that is the case, how can we believe similarly logically that she was sexually assaulted? Why believe someone who didn’t tell the truth about the rape?
I cannot without looking it up easily remember what happened in 1996. Did I see the English Patient that year or the year later? Did I go to the cinema, or did I watch it on video? I can’t remember a single event from 1996 without looking it up. So how can we trust witness statements from so long ago without any other evidence?
This is also the reason why everyone who cares about justice ought to be scared by the Scottish Government’s wish to abolish juries in rape cases. One of the reasons that it wishes to do so is that it thinks juries tend to believe rape myths. The other is that it wishes to increase conviction rates for rape. Presumably the Scottish Government thinks that if Trump’s accuser were Scottish and Trump had been living in Scotland at the time, then Trump should right now be in a Scottish jail.
But people don’t usually believe in myths. Few people believe the stories about Zeus or Thor or even King Arthur as matters of history. Why should so many people believe myths about rape? One of the reasons is that some of what are described as rape myths are not myths at all, but rather matters for juries to decide.
The number one rape myth is “That women commonly or routinely lie about rape.” How do I establish that this is indeed not the case? Do I establish it experimentally? Do I establish it by means of logic or reason? It is not obvious how I am supposed to investigate who really told the truth in a series of rape cases. It is for the trial to determine the truth. I might investigate miscarriages of justice, but this is more likely to find men who were unjustly sent to jail rather than women who lied. So, it looks as if the claim that it is a myth “That women commonly or routinely lie about rape” is assuming what it is trying to prove. Women don’t lie, therefore women don’t lie about rape.
But women do lie. There is not one class of human beings that lie called men and another that don’t lie called women. Moreover, if we assume that women in rape cases don’t commonly lie, then you might as well not merely abolish juries in rape cases, you might as well abolish trials too. If women don’t lie about rape, then as soon as a man is accused by a woman he should “do not pass go, do not collect £200, but go straight to jail.”
But a recent case suggest things might be rather more complicated. A famous footballer was accused of rape and sexual assault, but later the charges were dropped, and the original complainant is apparently still living with the footballer, having his baby and they will soon be married to him. So, did a rape or sexual assault take place? We have no idea. Perhaps it depends on whether the complainant wants her future husband to live with her or be in jail.
Which brings us to cases of rape involving intoxication preventing the woman being able to consent. But I imagine rather a lot of women and men for that matter become intoxicated at their wedding and then have sex afterwards. Do all of these grooms commit rape?
So too if any one of these grooms obtains consent for the first time the couple have sex after the wedding, but does not obtain it for the second, then that too will mean a rape has been committed. We mustn’t after all believe the rape myth that “That consent to one sexual encounter constitutes consent to another”
If the Scottish Government had its way, then if Donald Trump slept with a woman in 1996, but that woman said she consented to sex with him when they went to bed, but didn’t consent when they had sex again in the morning, then she must be believed automatically because she is a woman and he must go to jail because women never lie and he didn’t obtain consent in the morning from someone he had sex with the night before?
There need be no evidence that Trump had even met the woman. There need be no evidence that they had had sex at all apart from the woman saying that they had. Neither she nor he need have any memory of when the encounter occurred, and it could have occurred decades ago.
We need juries precisely because in many rape cases there is no objective evidence and therefore a jury has to assess who is more believable. We need juries because otherwise in the case of a divorce or a relationship breakdown any woman could claim and convict any man because at any time during the relationship or marriage sex occurred without consent. This would mean that any man in any relationship could be convicted, because women never lie. The judge, without the jury, having been trained to not believe any rape myths would ensure it.
The logical response to this would be that no reasonable man would ever have sex with any woman. The risk would be too great. If this is what the Scottish Government wants then the decline in the Scottish population is going to continue precipitately and soon there not merely won’t be any Scottish nationalists to vote for it, there won’t be any Scots at all.
The Excellent Effie Deans writes at Lily of St. Leonard’s here.