Legal Defense or Victim Blaming?

I’ve been reading alot of these, and I noticed the term “victim-blaming” popping up quite a bit. This term brought up a big moral question for me, because I was wondering about a legal case that two of my friends were recently involved in.

Disclaimer: I’m using gendered language because these parties are real, and additionally, everything I put in quote is taken from statements made by both parties.

A couple years ago, one of my friends accused another of rape. This was a shock to him, and he denied it completely. The case went as follows. She claimed that he had raped her, because she was “drinking” and “in love with someone else.” She implied that even if she had given consent, it was coerced, because she would “never sleep with anyone while she was in love.”

He completely denied these accusations and his defense was twofold:

1. He claimed that the idea that he forced her or coerced her in any way was “ludicrous”, as she had put him in her own bed over half an hour before she entered it, and he was “fast asleep” when she “woke him up” and proceeded to “have sex with him.” He claimed that he felt “used” by her. He called witnesses who saw her put him in her bed, and leave for half an hour, before returning. They didn’t see anything further. Additionally, the accuser also said that she got into bed after him and “may have” woken him up. Additionally, another witness testified that he said he felt “used” they day after, before the trial started.

2. She sent a text message to him before they slept together saying she found him “attractive” and was “interested” in him. He said that this, combined with her extremely “aggressive behavior” (another witness who was with them the whole night indicated she was aggressive) made him think that not only was she consenting to contact, she expected him to perform. He said he felt very pressured to have sex with her. She said that although she sent the text message, she sent it in a “joking” manner. He countered that there was absolutely “no way” he could have possibly known that.

So there you have it. I’d be interested in what you have to say about the two different posts, and how they relate to victim-blaiming. Regardless of the outcome of the trial, do you consider them legitimate forms of defense? This was all corroborated by witnesses, and it was factual. I think the second one blurs the line, but note that he was not blaming her for sending the text message, he was merely saying that it further confused him about her intentions. In none of his defense did he mean to say whatever happened was her fault, he just said that he could not be held “responsible” for a “mistake” on “both their parts” due to “miscommunication.”

Edit:  Another question that struck me was the question of whether or not she is a victim at this point? Does saying one is raped make one a victim or does guilt have to be established? If saying that one is raped is makes one a victim, are all legal defenses “victim-blaming”?


6 thoughts on “Legal Defense or Victim Blaming?

  1. “Does saying one is raped make one a victim or does guilt have to be established? If saying that one is raped is makes one a victim, are all legal defenses ‘victim-blaming’?”

    I’m finding it difficult to anticipate what the official response to this might be, but my guess would be that guilt does not have to be established in order to identify one’s self as a victim (survivor), and therefore the only permissible legal defenses are ones that attempt to prove that the perpetrator was not even involved in the incident (e.g. by furnishing an alibi). Admitting that one was involved but then denying responsibility is almost certainly victim-blaming. The only way it wouldn’t be is if the perpetrator conceded that he didn’t get sufficient consent, in which case… well, that’s not a defense.

  2. So you’re saying is that if two people have sex, and one accuses the other of rape, that person is automatically guilty? Why have trials then? Just establish that the people slept with each other and case-closed, one is guilty.

    • This is the person who left the first comment. I’m not saying that I believe that all sex is rape if one person says it is, but I’m saying that’s how I feel Consent is Sexy would read it.

  3. I think there is a fine line to be treaded here, and it depends if you’re asking how the legal system would do it versus how a survivor would think of his/her experience, or even how “Consent is Sexy” would read it. Just because two people have had sex and one claims it was rape does not make the other person guilty. It is a perfectly accepted legal defense to claim it was consensual, and this is part of why acquaintance rape is so under-charged and under-convicted. Proving guilt beyond a reasonable doubt can be very difficult in a he-said she-said (excuse the gender pronouns) situation. A defense attorney’s job is to get the accused acquitted/charges dropped, not show compassion and sensitivity towards the survivor. Victim blaming and slut shaming can still occur in the courtroom (though the don’t have to.) However, the person claiming a sex crime occurred can identify however they choose– as a victim, as a survivor, as a healer– regardless of whether any charges are files or verdicts obtained. Likewise, they can start a healing process, seek support, name their experience a rape, or whatever else works for them, as part of coping with what they have experienced. These are all survivor-centered processes, which have nothing to do with what the legal system says is okay.

    • You say “Victim blaming and slut shaming can still occur in the courtroom (*though the don’t have to*)” [emphasis added]. But if the accused claims the incident was consensual, what defense does he have other than to say that the victim/survivor/healer didn’t say no, either at all or at the relevant times? This campaign says that not saying no is not equal to saying yes, so this would be an admission by the accused that he did not obtain sufficient consent.

      I really don’t see how there could be a legal defence that admits the incident took place but isn’t victim blaming. I suppose the accused could say that the accuser did say yes, but if the accuser denies this, then he’s calling the accuser a liar or saying she changed her mind. That is, he’s saying that the accuser only came to regret the incident after it happened, and therefore should have avoided it if she believed she might have second thoughts. Isn’t this also victim blaming?

      • What I find problematic here is the loaded use of terms which are applied to the individuals involve, with connotations which incite certain judgments about the individuals. The use of terms victim, survivor and perpetrator as something concrete make the whole situation seem black and white. In this case, for instance, the perpetrator is blaming a victim in the sense that she identifies as a victim and he is holding her responsible for her actions. Holding a person responsible for their actions when they identify as a victim doesn’t inherently strike me as morally wrong.

        It reminds me somewhat of the honor council abstract, Port and Starboard, that came out last semester. In the abstract, I think Starboard stated that she felt threatened by Port. who had done little which I would have considered wrong and was apologetic for what she had done. The observations which Port made in the abstract were certainly blaming Starboard in the sense that they were holding her responsible for her actions, but I don’t judge Port for doing so.

        Beyond the right to self-identify, I struggle with the use of qualifying terms such as victim, perpetrator, rape, assault, and guilty. They incite us to see things in a situation which aren’t really there. Two people with entirely different experiences may use them, and yet I would be limited to my socialized perspective of what that means. Behind all of it are observations, emotions, actions, memories ,and feelings, and this is where the substance of what happened really is, not in whatever labels we choose to apply to the persons involved in a traumatic episode.

        That is my two cents.

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