There’s a lengthy and surprisingly bitter thread over at Larvatus Prodeo on two related but conceptually distinct phenomena. The first concerns cultural and racial stereotyping. The second concerns the safety advice police widely give to those who have a greater risk of being victims of crime. The post is a thoughtful one (written by regular commenter on this blog, Cast-Iron Helen).
On the first issue, Melbourne coppers gave some fairly standard safety advice, but targetted it deliberately at a specific ethnic group:
The response of the Victoria Police was to recommend that young Indians should stop talking so loudly in their own language and should not be louchely and recklessly carrying things like iPods and laptops on their daily commute. In short, pull your head in and stop flaunting your great wealth before our simple peasant folk, in case you get yourself bashed. And robbed.
On the second issue, Helen (and others) complain that the burden of public safety always seems to fall on victims of crime — most dramatically on raped women — but also on victims of muggings and other street crimes:
This reminded me of Lauredhel’s article about other victims of crime and how the use of the passive voice, and constant advice to the crime victims both actual and potential to take defensive action themselves to not get themselves raped, or get themselves robbed, makes the perpetrator invisible and takes all the light and heat off the people doing the crime.
There’s quite a bit going on here from a few different perspectives, and since I don’t have any neat solutions (rather like Legal Eagle’s last post on the anguished choices technology adds to old debates about reproductive rights), I’m going to consider a couple of things here and see what comes of it.
Stereotypes are at once not very nice and potentially life-saving. They’re nasty when they let you write off whole groups of people as worse than useless based on the exaggeration of a single trait (‘Jews are money-grubbing scoundrels’). They’re damn handy, by contrast, when they let you make rapid a assessment of your circumstances (‘I’m in China, the people look Chinese, learning a few words of the local lingo is probably a good idea’).
The stereotype that Helen averts to is a bit more complex, though. It’s essentially learned, and rapidly so. Most Australians would have had (before very recent times) no fixed image of Indians (they’ve never formed a large immigrant group to these shores) apart from the wholly obvious ‘good at cricket’. It may not be pleasant to say so, but there’s no doubt that it takes two groups to make a stereotype: one group to behave in a particular way, another group to develop an — often unpleasant — idee fixe.
I’ll own up a tendency to the latter with a different ethnic group: white South Africans. It’s fair to say that before 2007, I hadn’t met a single pleasant white South African. Every time I encountered a Saffa, I seemed to encounter someone who was arrogant, rude and unwilling to give any ground to other people in conversation. Funnily enough, only one was an outright racist (querying why I was dating a black man). If the others were racist, they didn’t let that particular stereotype out of the bag. They just weren’t very nice, and I took to avoiding them. Now I knew this was an exercise in stereotyping, and I knew it was unfair, but like most people I’ve only got so much emotional energy to burn on building friendships. So I gave white South Africans a wide berth.
Does that make me a racist? If we set our condemnation of stereotyping too high, then it probably does. I sense my idee fixe at moments like the current Test series. I strongly suspect I’m enjoying Australia’s current demolition of South Africa in South Africa far more than I otherwise might. This despite the fact that quite a few members of the current South African squad aren’t white.
Have wealthy Indians — they’re the only sort studying in Australia — been acting like cockheads on public transport in Melbourne? I don’t know, I don’t live there. Helen makes the entirely appropriate point that many of the young people she sees on the trains and trams of that fine city regularly act like cockheads:
It’s about being young and silly. (Some) students travel in packs, yell to each other, and generally seek attention. They’re immature and sometimes quite irritating. Duh – they’re young! This in no way excuses crimes against them, I would have thought. The idea that Indian students are somehow “flaunting” their iPods and laptops, also, is simply racist. I see thousands of caucasians and others using their laptops and ipods, and schoolkids carrying valuable musical instruments, every day.
Has there been enough especially bad behaviour to allow the stereotyping of an entire group? Quite possibly, yes. Doesn’t excuse the stereotyping, but it also doesn’t obviate the police advice either: (‘you have become an especial target, partly because of how you look. For your own safety, you’re going to have to modify your behaviour. You’re going to have to keep your heads down’). People do form stereotypes — even very careful people, people who would otherwise prefer not to form stereotypes. The police also have to deal with the world as it is, not as it would be. The danger in writing the police advice off as racist is, I suspect, the usual danger of letting the perfect become the enemy of the good.
There’s also another little worm in the fruit that Helen misses, one that I saw regularly during my stint at the Home Office all those years ago.
The Melbourne copper who gave the racially charged advice pleaded that he’d been advised to do so by other people in the Indian community:
Inspector Scott Mahony complained that the police had been blamed unfairly in the story, because “members of the indian community” had complained at a public meeting that their countrymen were noisy and obnoxious.
Now I’d be willing to bet a considerable sum that the Indians who complained about their fellow Indians being loud and irritating were none of them young. Often older people (like parents) from a more socially conservative immigrant group lose the ability they had ‘in the old country’ to police young people’s behaviour. Shocked by the vision of their children coming to behave like the liberated and louche young people of the ‘new country’, they try to recruit the new country’s police forces and immigration authorities to ‘control the yoofs’. I lost count of the number of telephone calls I received from Muslim parents complaining that their daughter had run away from home with ‘that boy’, and could I please give them her address? Explaining that the way they treat their children — especially their female children — is a per se wrong is harder than it looks. It didn’t take long before what other people in the office called the ‘avoiding honour killings calls’ all got diverted to me.
Helen’s other concern is with the common tendency to direct ‘safety advice’ at victims of crime, with the implication that if the person doesn’t follow the safety advice, they are contributing to their own misfortune. This has had particular historical currency in rape cases, but is also widespread elsewhere. It’s usually of the fairly anodyne ‘don’t flaunt wealth, don’t wander around dark streets at night, don’t wear revealing clothing, don’t drink too much‘. I’ve emphasised the last one because it’s separable from the others, and can have considerable legal significance in its own right.
There are several chains of reasoning going on when a police officer gives this kind of advice, some of them logically (and morally) illegitimate, others not. There are also two sets of empirically relevant advice — one set is legal, and the other set is physical. I am both a lawyer and martial artist, so I’ll treat the issues seriatim.
On advice to avoid being a ‘victim of crime’ — the lawyer
If the State advises young women not to wear revealing clothing because it increases the chance of rape, but then prosecutes any rapists to the full extent of the law and does not allow the woman’s dress to mitigate the seriousness of the charge at trial (or any subsequant sentence), it is difficult to consider the advice sexist. The issue thus becomes an empirical one: is there any link between clothing worn and later sexual violence? The same argument applies, for example, to those men who claim, say, that they are sex addicts and unable to control themselves, and so on. The problem of sex addiction may well be genuine, but it cannot be allowed to mitigate or vitiate either the intent or the harm. Larger issues of protection (the State’s core role) are at stake.
If, however, the State allows the rapist to mitigate the seriousness of the offence by apportioning liability between the woman and her attacker for whatever reason — allowing, in effect, a crime to be treated as a tort — then its reasoning is both logically and morally illegitimate. This is, I suspect, what so angers feminists, although making a distinction between empirical facts and subsequent (not consequent) outcomes is of vital importance. Whether something causes something else is one question; whether that should be reflected in any subsequent sentence is another. Some men are undoubtedly sex addicts who respond criminally to revealing clothing. That’s unfortunate, and I feel sorry for them, but they should still be locked up for as long as those rapists who rape for reasons that can’t be medicalized.
Alcohol and vitiation of intent
Feminists (and others) need to be aware of the special role of alcohol in the criminal law. Alcohol can — if consumed in sufficient quantities — vitiate intent. This means that a drunken criminal — if he shows that he was very drunk — can reduce a charge of murder to manslaughter and rape (depending on jurisdiction) to one of the weaker versions of ‘sexual offence’. He does this by drinking such as to remove the mens rea, the intent.
A recognition that things as basic as intent and understanding can be swept away thanks to alcohol consumption applies not only to the accused. Many victims in a sexual offence matter have a very dim memory of anything that may have transpired earlier. Both the accused and victim very often do not know their own motives and actions. The court — and its jury where relevant — often have to ‘split the difference’ when it comes to returning a verdict. The fact that alcohol consumption may generate a legal margin of error should always be borne in mind.
The role of alcohol in many rape cases (and in other offences of violence) has led some feminists to propose a strict liability regime for sexual offense matters. In practice, this means that instead of the Crown having to prove the accused’s guilt, the accused must prove his innocence. An accused male in these circumstances would need to make out on the balance of probabilities that he did not engage in the impugned behaviour. Strict liability regimes currently operate in much UK anti-terror law. With these laws, when the onus is reversed, a David Hicks or his ilk must make out on the balance of probabilities that he was not a member of a listed terrorist organisation. His shield (as old as Magna Carta) is stripped away. Oxford’s Professor Colin Tapper often pointed out to me that the problem with much legislation designed to further women’s rights in criminal law was its kinship under the skin to the very worst laws designed to convict the putative ‘enemy of the state’, coupled with widespread ‘mission creep’. Strict liability regimes represent an unacceptable erosion of the right to a fair trial, yet they are nonetheless becoming increasingly common. This is not something that anyone who is remotely ‘progressive’ should be celebrating.
People often forget that historically — in both common law and civil law regimes — people have had to fight very hard to unpick the State’s power over the accused (before the 1940s, the accused was called ‘the prisoner’, even though not convicted. He was also treated accordingly, and often presented to the jury in shackles). For those whose politics differ from mine, and who want a vivid picture of what ‘putting the victim first’ looks like in practice, I can only recommend the first few chapters of Michel Foucault’s Discipline and Punish, with its chilling account of the punishment meted out to a regicide. That’s what the criminal law — at least on the Continent — used to look like. It was not pleasant. When someone is punished for a crime these days, the punishment is not for the edification of the victim, but for the protection of society. There is an often unpleasant association between ‘making the victim central to criminal punishment’ and facilitating vendetta and a desire for revenge. Now those emotions can be legitimate — but only in very small quantities.
This messy conundrum is at the basis of police advice to women not to drink too much in company. Drunkenness on all sides makes it much more difficult for the Crown to prosecute offences, and to work out who is responsible for what. This is very likely not fair, but to obviate it is once again to make the perfect the enemy of the good. Many people drink and subsequently behave irresponsibly, including many otherwise good people. Would-be rapists can be counted in their number. The best advice a lawyer can give a woman is to moderate her intake. If anything does go wrong, at least a conviction may be secured. Likewise, the best advice a lawyer can give to a man is also to moderate his intake: he will at least not then be accused of a crime he did not commit and then have no recollection of what went before.
On advice to avoid being a ‘victim of crime’ — the martial artist
I’m a shodan in Shotokan Karate, 6’1″ and roughly 75-80 kg depending on training levels that month. I can stop most people of either gender, regardless of how strong they are. However, in order to earn my shodan, I not only had to be able to fight well against all comers of both sexes. I needed to have considerable awareness of the very things that lead to crimes of violence, particularly against women. Here are the ‘biggies’:
1. Victims often listen to iPods/MP3 players and so have greatly reduced awareness of their environment. Do not listen to anything that will stop you from being aware of your environs. This applies to both genders equally.
2. Victims routinely get drunk such as to undermine their basic hand-eye coordination. That said, you can still get pretty tipsy under this regime: the nanny-statists who tell you never to drink forget to tell you that many people (especially women) who have a few drinks before performing a difficult task commonly outperform people who are stone-cold sober: the drink makes them more confident, but also makes their reactions sloppier. There’s also a reason why Italians and Greeks try to stuff you with lots of food before you touch the booze — it means you get the best of both worlds. Always, always, always eat heartily before going out on a big night on the town. A small amount of drink will give you confidence and even power; a large amount may well make you a victim of crime.
3. Victims are unaware of ‘false teaming’ and other giveaway ‘cues’ when it comes to violence. Typically, a male who genuinely wants to give you a hand with that heavy load of shopping asks ‘can I help you out?’ or ‘Do you need a hand?’ A false teamer says something like ‘let’s get this pile of shopping sorted’, falsely making an unearned alliance with you. The number of sexual assaults that follow shortly thereafter is simply staggering.
4. Putting oneself first has wider applications, too. There’s a reason why the airlines tell you to fit your own mask first, and any children’s masks later. On the scale of things, children are unimportant. You are what matters. If given a choice between you and your children, or you and your husband, you have a much better chance of saving them if you save yourself first. Altruism in circumstances like these is not only dumb but dangerous.
Can this advice — advice I’ve taught to hundreds of students in martial arts and self-defence classes — be interpreted as sexist? Quite possibly, yes. That said, however, there is no doubt that crime impacts disproprotionately on persons who exhibit certain behaviours (for young women, it’s associated with public drunkeness and consequent dulling of typical powers of observation). This impact may be both wrong and unfair, but it does not detract from the basic truth: until we live in a better (let alone perfect) world, some classes of people will simply have to be more careful than others.
The principle reason that the ladies and gentlemen of the press present victims — rather than perpetrators — first in their news stories has its origins in a desire to encourage identification with ‘normal folks’. Perhaps naively, journalists assume that our first identification is with the wronged person, even before we know who the ‘wronger’ may be. This means journalists forego the active voice beloved of most press writing and cast everything into the passive, often with a photograph of the victim on or near the front page. There’s also a desire to avoid sub judice and contempt of court behind this kind of writing: casting a sentence into the passive allows the journalist to bunt away any suggestion that any particular person is being ‘fixed’ with the crime. Most people agree that these kinds of precautions are necessary to ensure a fair trial for the accused.
Where does this leave us?
… With a realization that this stuff is complicated and difficult to elucidate. The hands we’re dealt may well be unfair, but aiming to fix all wrongs (an impossible task) should not prevent us from aiming to fix what we can. And accepting graciously that there are some things you cannot fix wouldn’t be a bad idea, either.