The US criminal justice system is failing survivors of sexual assault. It needs a feminist overhaul | Arwa Mahdawi

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Could an obscure 19th century law change the way rape is accused?

Here’s a fun fact about consent: Once you say “yes”, you can change your mind! Saying “yes” at the start of sex doesn’t mean that you allow someone to do whatever they want with you. Consenting to have sex with someone does not mean that you automatically consent to being violently strangled.

I shouldn’t have to say that, right? It should be obvious to anyone with a brain. However, it seems that the US legal system, which is supposed to be comfortable with complexity, struggles to understand the fact that consent is not just a question of a one-time ‘yes’ or ‘no’. The latest exasperating example of this case is that of Madison Smith, a former student of Bethany College in Kansas.

In 2018, Smith met a classmate called Jared Stolzenburg. At first, the sex was consensual. Then, according to Smith, Stolzenburg began to suffocate him. “I first tried removing his hands from my throat, and he squeezed harder each time,” Smith said in a hearing reported by The Washington Post. “He was choking me for 20 to 30 seconds straight and I was starting to pass out. When he released his hands from my neck, the only thing I could do was get some air. She could not, in other words, make it clear that she was revoking her consent immediately.

Smith reported what happened as a rape. County District Attorney Gregory Benefiel ruled that it was in fact “immature” sex. Benefiel told Smith’s mother in a taped conversation that the matter was complex because Smith had not verbally withdrawn her consent; Smith pointed out that she couldn’t breathe, let alone speak. Stolzenburg, for his part, denied raping Smith, and said he was just trying a “sexual crouch” he saw on the internet. “I thought it would be something to try, and I was stupid to try it,” he told the BBC. Ultimately, Benefiel did not file a sexual charge against Stolzenburg, but charged him with aggravated bodily harm. In 2020, Stolzenburg was sentenced to two years probation and paid $ 793 to a victims’ compensation board.

Unsurprisingly, Smith was not happy with the decision not to press charges for rape. She wasn’t happy that the DA was basically saying that you can’t be charged with raping someone if you make sure you shut them up first. What kind of precedent does this set? What kind of consent message does this send?

Smith refused to give up. The traditional legal system had let her down, so she turned to a 134-year-old Kansas law that allows citizens to seek grand juries when they think prosecutors are neglecting to lay charges. Only six states in the United States have a law like this; it has been used sparingly and is believed to be the first time it has been used in a sex crime charge. The jury cannot decide whether someone is innocent or guilty; they can simply decide whether charges should be laid.

Convening a grand jury isn’t easy: you have to collect hundreds of supporting signatures just to get the process started. So Smith had to stand in the parking lot of a barber shop, tell his story to strangers, and have them sign a petition. On Wednesday, the grand jury met for the first time. The case is under close scrutiny and could set a precedent for others to convene grand juries to lay rape charges.

While it’s not clear what the grand jury will decide, Smith’s legal battle has drawn attention to how abysmally the legal system is failing survivors of sexual assault. In much of the world, rape is the easiest violent crime to avoid. In the United States, only 19% of reported rapes and sexual assaults lead to arrests; only about 6.5% result in a conviction. It’s a similar story in the UK: until March 2020, only 1.4% of rape cases recorded by police resulted in a suspect being charged. Victims Commissioner Dame Vera Baird noted that the level of prosecution in England and Wales has become so low that “what we are seeing is the decriminalization of rape”.

Smith shouldn’t have had to recount her trauma to strangers in a parking lot for the justice system to take her seriously. She shouldn’t have had to dig up old laws her mother had heard about on a podcast to have her day in court. Whatever the grand jury decision, one thing is very clear: The criminal justice system is in dire need of a feminist overhaul.

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Police superintendent tells women to be “more careful” if they don’t want to be murdered

Horrific details have come out this week about the murder of Sarah Everard: Wayne Couzens, a Metropolitan Police officer on duty at the time, kidnapped her on the pretext of arresting her. Like many women, I wondered if I would have gotten in the car with Couzens in the same situation and concluded that I almost certainly would. Which makes me an idiot, according to Police Commissioner Philip Allott. Allott helpfully said that women should be “careful about when they can be arrested and when they cannot be arrested” and “learn a little more about this legal process.” What if the police stop condescending women and start dealing with their institutional misogyny? Normally I end this newsletter with a pun, but that doesn’t really seem appropriate to me this week. Instead, I urge you to read the Everard Family Impact Statements if you haven’t already. How did anyone dare to say that Sarah should have been more “rue de la rue”.


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