Let’s imagine that, one day, Dulcineia, 71 years old, while returning from the local CTT store, where she went to collect her pension, at 6pm, on a winter night, is surrounded by 5 strong men who ask her for her wallet. None are armed, none use or threaten violence. They simply surround Dulcinea and ask for her wallet. Dulcinea gives them the wallet, and the 5 men leave. The meeting lasted no more than 2 minutes. When she gets home, Dulcineia tells her daughter the episode, explaining that, she doesn’t know why, but she ended up giving them her wallet. She can’t make sense of what happened, and feels guilty for having offered her pension money to 5 strangers. His daughter asks him in turn: were they armed? No. Did they threaten you? No. Did they tell you “you better give your wallet now”? No, they simply said, one of them, in fact, “give us the wallet”. The daughter gets angry and gets angry with her mother for being so generous, and so easily offering the pension money to 5 strangers. The next day, Dulcinea tells the episode to her neighbor, while they have breakfast at the cafe on the corner. She is very embarrassed and sad, and explains how angry and disappointed her daughter was. You don’t know what to do or how you’re going to pay the bills this month. The neighbor asks the same questions, and gets the same answers. The case hits the newspapers and the whole country is suspended in a complex debate: will it be theft, will it be robbery, will it be charity? Is Dulcinea a victim, or a woman who is easy with her money?
If this story seems absurd to you, we can exchange some details. Dulcineia is 18 years old, and the 5 boys, instead of just asking for her wallet (and also keeping her cell phone), asked for group sex. And so we come to the case that remained known such as “La manada”, which took place in Pamplona, in 2016. Also here, the 5 boys simply surrounded the victim and “asked” for sex. The boys followed the victim as she returned to the car, surrounded her, took her to the entrance of a building (a more hidden place) and forced sex on her. The victim never said no. But then again, I never said yes. This case has more macabre details: the attackers filmed the attack and shared videos in groups, at least one other similar attack was discovered on the attackers’ cell phones, and they stole the victim’s cell phone. They were, after many decisions and appeals, convicts to 15 years in prison for gang rape. But the central issue is similar. When is there consent?
That there should be doubts, in either case, is equally absurd. Men do not have a fundamental right to have sex with a woman (or young person, or child), and the existence of a woman in proximity to a man does not allow the assumption of consent to sexual activities. However, this often seems to be the perspective of society and, unfortunately, also of some judicial decisions. It is true that the rule in criminal proceedings – based on in doubt for the reu – is that it is up to the prosecution to prove the existence of a crime, would it make sense, in the trial of the 5 boys for the crime of robbery, to require Dulcinea to prove that she clearly demonstrated that she did not want to give away her wallet? Or, as is obvious, does the lack of consent arise naturally from the context, within the normality of common experience?
The reason why things get so complicated in sexual crime is based on the absence of a “normality of common experience”. Not only because of structural flaws in sexual education (which this Government considers expendable), but also because our understanding of sexuality is contaminated by centuries of patriarchy, and the notion that men really owed women a debt of sex. That is why it was so difficult to understand that a married man cannot force his wife to have sex (it was only from the 10s of this century that the courts began to recognize rape between married couples as an independent crime of domestic violence). This is why the burden of avoiding rape is imposed almost exclusively on women, even when they are not even women yet, and they must be vigilant and live in constant fear of making a mistake or carelessness. On the other hand, little is taught or required of men, even though they, when in the position of aggressors, are the only ones responsible for the crime. Whoever steals is solely responsible for the theft, whoever violates is solely responsible for the violation.
It should be simple, but it still isn’t. As shown by the recent case of a 16-year-old girl whose life was at risk after being violently penetrated vaginally by a 25-year-old man, after a party, when she was at his house (see here). The most common questions are: why was the girl at the man’s house?; and why was she drunk?; and why didn’t he scream, resist? I haven’t seen anyone yet ask: why did this man go up to a 16-year-old girl who was drunk, took off her pants, and penetrated her with such violence that left her at risk of death? Is this type of action the normality of common experience? Do we have women every day entering hospital emergency rooms with Douglas sac laceration, needing emergency surgery after sexual intercourse? This type of injury, extremely rare, extremely serious, does not happen by chance, it is not a mere accident. It happens, as medical practice tells us, in non-consensual traumatic relationships and, even more rarely, when there are previous injuries, penile piercings, and postpartum if the woman has not yet fully recovered.
But even so, with medically proven physical evidence, this victim deserved credibility for the court, which acquitted the defendant. And why? For three reasons. First, because he didn’t physically resist (he didn’t scream for help). Secondly, because he did not immediately consider that what happened to him was rape. Now, if the victim, any victim, is part of our society that still has such absurd ideas about sexuality and consent, it is natural that they would not realize that what happened to them was a violation. In the mind of the victim – and so many people – if she accepts going to a man’s house in an “atmosphere of seduction”, she submits and loses the right to say no (even if she says no). Because he didn’t scream, nor bite, nor physically resist. After all, it really seems that a man has a fundamental right to have sex with any woman he “catches”, unless that woman fights to the death to defend her no longer so fundamental right not to have sex with that man.
Third, and this is a central issue, because she hesitated in filing a complaint, having been pressured by the defendant’s (adult) friends to remain silent. I focus on this issue, not only because the case is still under appeal, but also because the Assembly of the Republic recently approved a proposal to make the crime of rape public. The victim’s messages with friends, and with the defendant’s friends, were scrutinized in detail to try to understand to what extent the desire to file a complaint was spontaneous, true, disinterested. In fact, one gets the impression that the only desire of the victim that was seriously analyzed was the desire to file a complaint, and not the one that was the object of the process: the desire to have sex or not with the defendant.
As I wrote herethe classification of serious sexual crimes as semi-public “promotes the centralization of the process, and the responsibility for its existence, on the victim, contributing to the narratives of false complaints or spurious interests in the presentation of complaints. Filing a complaint is also an indication of strong suspicion about the victim himself, which certainly weighs on the decision to remain silent.” Even in a case like this, where the victim is a minor – and, therefore, the crime is public, it does not depend on the victim’s will – the victim’s position on the complaint was central in the trial. And, most likely, the victim simply did not give up – the pressure he suffered to remain silent is clear – precisely because it is a public crime. Note that the defendant, aged 25, is the father of two young children, had a steady job, and has already been in pre-trial detention for around 1 year. A conviction will certainly “spoil” his life and deprive him of a normative relationship with his children.
Now I ask, what if this victim was 18 or 19 years old? Should we place all the responsibility for “ruining” your attacker’s life on your shoulders? Or, as in a crime of theft, domestic violence or forgery, should the State, with its own resources, assume responsibility for the criminal process?