Policing consent: seduction, lies, and the limits of rape law | Zoe Brereton | TEDxUQ transcript

[Music] [Applause] before my first trip to India in 2015 life probably many of you had certain preconceptions about the country spicy foods rainy season Bollywood unfortunately I also knew its capital Delhi by what international media headlines were calling the rape capital of the world now presumably there are several ways that one might try to account for this unsavory Monica sensationalist media racist and imperialist Western journalists fake news but in my first visit to a police station early on researching police investigations into sex crimes the deputy head of the station told me that the reason for this alarming statistic on rape was actually false complaints by victims now as a law student I'm not a stranger to the historical legal presumption that women are prone to making false complaints it's more believable that a woman would have lied than have actually experienced sexual assault and so I asked the director how does the police know that these cases are false and he assured me that after years of policing they developed this sixth sense that enables them to tell as soon as a woman walks through the door a visual lie-detector test so to speak now what the police officers described to me that day were actually the telltale signs of the real rape scenario and I'm sure you're familiar with it the real rape is that one-off violent attack by a stranger where the woman strenuously resists to the point of suffering visible signs of injury it's a narrative of pop culture film and media not actual survivors essentially what the police officers described to me that day is that his well honed Sixth Sense identified as real victims only those who conformed to this ideal type unless she walked into this showing the symptoms that we see in the movies so far as he was concerned she was just faking it now the ideal rape victim is not a static figure she is a product of her time and of her place Indian cases show us that she's likely to be Hindu and also chaste young and naive in Australia feminists such as Professor Wendy Larkin predict that successful rape complainants are likely to be young able bodied non-indigenous english-speaking women interestingly it no longer assists the case for the prosecution to show signs of injury on the victim in our post fifty Shades of Grey culture women with injuries in rape trials are women who consented to rough sex now this narrative of the ideal rape victim can be hugely problematic where it normalizes the idea that rape is only real and only harmful for certain people in certain circumstances now while the very high-profile and very gruesome rape of a young girl in a bus in Delhi in 2012 was the catalyst for major law reform it also created a new ideal rape victim standard in this case a young girl suffered horrific torture and gang rape at the hands of a group of strangers and she died as a result of her injuries an outraged a nation but the outcome of this was that it raised the bar to all other survivors of rape to earn the sympathy of the general public for when rape leaves no physical scars but is of someone's bodily autonomy and their trust by someone they know and in their home how can it be harmful enough to measure up to the trauma of rape as we imagine it and so when I brought up the idea of this ideal rape victim to the deputy and I queried whether their sixth sense of his was in fact a result of myths and stereotypes he told me that this wasn't the case the women in India were more likely to lie about rape and as proof of this grand assertion I was referred to the low conviction rates in cases called rape by false promise of now in order to understand these cases you need to understand the specific cultural context in many parts of India there is still a huge stigma around sex outside of marriage and a woman losing her virginity also risks losing her marriage ability and her family's honour and sort of protect these vulnerable women and their families from extreme social consequences the courts have made it a crime for people to intentionally lie about their intention to marry someone to get sex when otherwise she would have said no and the deputies right these cases are characterized by extremely low conviction rates but what is this is it because as you told me women are making false complaints of rape or rather is there something else now after reading hundreds of cases of this type what I learned is that most cases which result in a not guilty verdict because the woman denies the prosecution's case at trial often there's also evidence that she and the accused have been married and now these cases often read like a script recording that she denies ever having reported rape to the police she denies ever having been raped under a false premise of marriage and she denies that she is now testifying falsely as the accused has married her that's what face value what we see is a wrongful complaint against an innocent accused and the police the judge and the media that condemn these women as liars an allegation of rape becomes a weapon in the hands of a woman deployed to coerce and accused to marry her which can then be retracted and in the shame of investigation the risk of trial and possible imprisonment and so at face value this is one possible reading of these cases but when we look at the specific cultural context and we start with the assumption that not all women lie what we see is that changing your testimony and a legitimate complaint of rape are not mutually exclusive in fact while it's illegal in cases of rape defense lawyers and prosecutors will tell you compromise and out-of-court settlements are incredibly common in India and now sometimes this compromise as a tool for defense lawyers at all to pressure a woman to change her testimony with threats and coercion behind the scenes of the trial and sometimes this compromise takes the form of an offer of marriage and for us using marriage to settle the wrong of rape it goes against feminist theory and it confirms that rape is not criminalized to protect an individual woman's autonomy but rather protect a father from the loss of his daughters value as a transferable asset evaluates is attached to her status as a virgin but the practical reality is in that many poor communities in India where the only other option is life as a stigmatized social outcast a marriage to the man who robbed her of her virginity is preferable to both her and to the accused than his possible imprisonment so the belief in India that women are making false accusations of rape is also complicated by the fact that the courts are prepared to prosecute men who lie about their intention to marry a radical departure from that violent rape narrative and in this respect Indian law takes a broad view that frauds like this will destroy consent a view that reflects the very real harm that women in this situation face and this contrasts with the position in Australia and in the UK where courts have resisted expanding the scope of rape to encompass those cases where consent is obtained by fraud or half-truths now the foundations for our current understanding of when fraud will vitiate consent comes from an English decision in 1888 now in this case the victim's husband was charged with assault for having intentionally infected her with gonorrhea in a situation where she would not have consented to sexual intercourse if she'd have known and the court said that doesn't matter so long as our consent is made with full knowledge of the sexual nature of the Act the reasons why we'd give it and the additions upon which we exercise it are not significant enough to invalidate that consent now this extremely narrow understanding of consent means that cases were fraud well in fact consent are scarce and the exceptions that we do have a very much the result of public outcry in response to high-profile decisions where we feel that the law has got it wrong in the 1860s for example bizarre phenomenon was sweeping England where midnight interlopers were sneaking into women's rooms and pretending to be their husbands initiating sex and the court said this isn't rape but the legislature intervened and they criminalized these cases of spousal impersonation in Australia in 1957 the High Court considered the case of a religious Greek migrant who was tricked into believing that she and the accused were married and after giving her consent on what she believed to be their honeymoon he took off robbing her of her virginity and of her prospects in this new country and the court again said yeah her consent is still valid but parliaments in Australia have expanded the scope of rape to protect people from precisely this lie now some have advocated for the criminalization of all deception but it is easy to imagine cases where this would lead to injustice for example in 2016 the New South Wales Parliament decided against criminalizing half-truths such as I love you or I'm single or I'm not seeing anyone else which could realistically affect our decision to consent but which perhaps aren't always told for exploitative reasons and might not have that same harm and so what these examples show us is that the line between sex and rape isn't static and it is certainly not solely determined by individual choice rather what we have is this middle ground that defies definition which is informed by personal and cultural values power imbalances and harm and as these values shift and change so does the scope of the laws protection now as someone who's not religious and as someone who won't be stigmatized by sex outside of marriage my biggest concern when it comes to deceptive sex is not that someone's going to sneak through my rent window and pretend to be my husband nor is it that I'm going to be tricked into giving my consent under a false premise of marriage rather what I'm afraid of is what college boys call stealth thing where I agreed a consent with the condom and he intentionally and secretly removes it exposing me to the risk of STDs unwanted pregnancy and privileges whims over my consent what I'm afraid of is that someone will secretly upload videos of me having sex with them online without my consent like what happened to the young Australian Defence Force cadet who was unknowingly live-streamed to a group of boys in the neighboring dormitory but as it stands the scope of my consent does not depend on those conditions while public outcry has forced the legislature to criminalize the non-consensual uploading of intimate images the line between rape and sex hasn't changed rather Parliament has decided that these lies should be captured by enacting discreet specific offences and not by requiring a more informed consent another problem with this is that the people who'll be protected are people who look like me and people whose interests are like mine and will end up with this new but equally narrow narrative that excludes those whose homes don't look like that of the mainstream now in my last visit to the police station in India a woman walked in nursing her tiny baby she was crying and she was tugging at the police offices sleeve and I later asked the deputy what had her complaint been about and he told me not to worry she was one of those false complainants she'd complained that her husband had raped her and this couldn't be true as in India spoons don't rape their wives now this blunt assumption is legally warranted as the Indian Penal Code still contains an immunity for husbands who raped their wives an immunity that was inherited from the English common law in which we maintained here in Australia until the 1990s and while after the Delhi attack the legislature increased the penalties for rape they affirmed that the removal of the immunity was unsuited for India for how could it be harmful how could it be immoral if it wasn't a stranger using violence but her husband asserting his conjugal right now what their story is that I've told today have in common is that they show us that the line that we draw between sex and rape traces the contours of an ideal rape victim and the narratives we construct around real rape determine not only who is believed but also the scope of a valid consent a consent that doesn't have to be informed and a consent that is incapable of capturing those personal and cultural values the power imbalances and the consequential harm which characterized the gross violations of truths bodily autonomy and psychological manipulations which warrant the label of rape now I'm afraid I won't be ending today with an uplifting conclusion or an answer for the future raid of Mines the mine have tried and failed to draw a bright line through the murky waters that make up this contested space rather I hope to have convinced you that the law in this area is severely unjust and to have left you with an important question at the forefront of your minds when sex means so many different things to serve many different people how do we determine the limits of rape thank you you