And why it might not be what you think!
The word justice conjures up a myriad of definitions. It evokes emotions or even pure apathy. Justice can serve to champion those who have been wronged. The lack of justice can set the tone for severe impunity. For many, it is about retribution and punishment for breaking the law. For others, it is about restoration and a fair society. Justice can be misunderstood and misrepresented. It can fail communities and leave victims feeling unsafe. Seeking justice is not always the right thing to do. At times, justice is used to persecute the innocent. It can revictimize the victim, destroy hopes and support tyranny. It costs money. In some countries, it can leave a victim destitute. Justice is not the same for all, and there are many factors affecting how it is interpreted…religion, race, money, power, loss, fear, anarchy, politics, gender, age and the list goes on.
[trigger warning: This article or section, or pages it links to, contains information about sexual assault and/or violence which may be triggering to survivors.]
If justice is so messed up, why do we still cling to its importance?
Without getting all philosophical on you, I’m going to explain why justice can be important for rape survivors…and it’s not what you think.
For justice to prevail, we need laws. These laws are a system of rules and regulations that outline what is acceptable behaviour and conduct. The proportion of punishment is also determined by the same system and can vary grossly depending on the relevance given to the crime.
Modern-day societies tend to lean towards retributive justice when it comes to crimes like rape. Laws have been broken, charges are made, court intervenes and punishment is imposed.
Legal systems change from country to country with their implementation depending strongly on government will and funding. A country may have an exceptional set of laws – on paper – yet the services or professionals who need to apply the laws may have no knowledge or interest in their existence. In some aspects, this lack of implementation renders laws useless. The same applies for the punishment. In many instances, offenders are not sentenced and leave the courtroom with only a warning or probation. Hardly fair to a victim of rape who has potentially had their life destroyed. And this certainly sends a strong signal of impunity to the rest of society.
Laws don’t always guarantee justice.
Nevertheless, laws are needed to acknowledge the wrongdoing of one person towards another. How this wrong is righted depends on the victim and the justice systems accessible to them.
Have you ever thought about what the consequences would be for a victim if the law did not recognise rape as a crime?
In Australia, rape is a crime. Its definition includes most types of intrusive sexual acts and it is the State who leads the prosecution. A victim can still access medical and support services without reporting to the police. It is not mandatory to press charges and forensic evidence can be stored for up to twelve months. None of this will ensure the victim is given a fair trial or that any sentencing will occur, because the outcome depends on a judge’s interpretation of the law. If police feel there is not enough evidence, the case will not even go to court. However, a victim is still protected in the eyes of the law; they are able to receive medical care and they have options to seek justice in other ways.
I’m Australian but was raped in Paris, France. This meant I had no right to access the services in Australia because the rape occurred overseas. In other countries, policies are different, allowing citizens to access support service if raped abroad. Sadly, I was subjected to French laws. Rape in France is not a crime against the State and at the time of my rape, I had to prove that there was penetration and that I fought off my attacker (meaning physical injury to my body), otherwise a rape hadn’t occurred. This type of ruling still applies to many countries across Europe. The man who raped me did so violently with the intent to kill, leaving me with severe bodily injury and the rape kit confirmed penetration. I could prove, without a doubt, I had been raped. It is not necessarily the case for all victims of rape.
The man who raped me remained at large. Ten years later, in an incredible turn of events, he was caught through DNA. In Australia, this would mean the State takes over and prosecutes, but in France, the only way for justice to occur is if the victim leads the prosecution, if not the perpetrator walks free. The legal process cost me six years of my life, thousands of euros and ongoing revictimisation by a system meant to protect me. And the man who raped me? He only served four years of his twelve-year sentence. It left a sense of injustice and fear of a system that is meant to keep people safe.
In Switzerland, the law on rape is extremely narrow. In fact, so narrow that it excludes all cases that cannot demonstrate the victim fought off the rapist (physical signs of injury) or penal penetration of the vagina. And in some cases, no crime has been committed. The law on rape in Switzerland is currently one of the least protective in the world, and it completely excludes men, boys and LGBTQI+ individuals. The dangers of a narrow law like this is that many people are left unprotected – these victims can never seek justice through the system nor can they access support services because in the eyes of the law, no crime occurred.
In Namibia, in Southern Africa, the Combatting of Rape Act was amended in 2000, dramatically changing the law and providing improved justice outcomes for victims. The crime of rape in Namibia has an inclusive definition that considers circumstances when a victim’s right to consent has been taken away (coercion) and includes many types of intrusive sexual acts, not just penetration. Under under this law women, men, girls, boys and LGBTQI+ individuals are protected.*
Depending on where you find yourself in the world, your sense of safety and protection can vary radically. The irony is that rape statistics don’t vary. For example, a woman, man or child is just as vulnerable to be sexually abused in Namibia as they are in Switzerland. Yet, it is the victim in Switzerland who will be the least protected by the law.
A victim may not want to face the justice process. Being dragged through a legal proceeding that could cost the victim all of their life savings and result in the perpetrator never acknowledging the crime or being realised is not always the ‘right thing to do’. Sometimes a victim wants to just focus on recovery. Sometimes a victim isn’t ready for a court hearing but still wants forensics to be taken in case they find the courage to press charges later. Sometimes a victim wants to do nothing at all.
Ultimately, it should be the victim who has the right to choose. A system that lacks laws or a sufficient justice process, strips the victim of that right.
Whatever a victim decides to do, what matters is that there are inclusive laws that acknowledge a rape crime has been committed allowing the victim to access the services and support they need to find justice and heal. Without these laws there has been no crime. A perpetrator is free to continue raping. There are no victims.
And this is why justice is so important.
If you or someone you know has been sexually assaulted, you can contact these organisations in Austria for help:
Frauen Helpline: 0800/222 555 (Women & Children)
Die Moewe: 01/532 15 15 (Children)
Maenner: 01/603 28 28 (Men & LGBTIQ+)
*Note: Namibia outlaws homosexuality however under the Combatting of Rape Act 2000, men who identify as homosexual can report being a victim of a rape crime and not face criminal charges.
header image credits: Photo by Dan Meyers on Unsplash
About the author:
Claire McFarlane is a South-African born Australian and founder of Footsteps To Inspire. She is a global changemaker, Ambassador for Peace and currently on a mission to run 16 kilometres of beach in every country of the world (230 countries) to support survivors of sexual violence. It is a world first, both as an expedition and social cause. Claire knows how hard it is to be a survivor because she is one. In 1999, Claire was brutally raped and left for dead on the streets of Paris. What followed was a long struggle through the French justice system that only came to an end in October 2015. The ordeal lasted 16 years. Through peaceful outreach and sharing her own personal story, Claire is fast becoming a voice of hope and inspiration to many around the world. More info: www.footstepstoinspire.org