On the Jury and Sectarian and Sexual Violence: A Response to Lallands Peat Worrier

I’m a big fan of Lallands Peat Worrier, his blog, his Tweets and his person; he’s on the side of angels and he has a lovely brain the size of a planet. His latest post disturbed me a little though, so here is me writing out my understanding of why I’m disturbed. I also ramble into more of a response to the content of his post and the case it discusses: the implications of the Neil Lennon sectarian / assault case for Scotland’s anti-sectarianism law.

Regarding my overall unease with the tone of the post: it disturbs me when people treat anything related to rape purely as an interesting intellectual analogy. I think it behooves anyone writing about such matters to remember that they are not abstract concepts to many of their readers. Sometimes they are daily dangers and traumas of real lives as they are currently lived. Sometimes the people who live those lives read one’s blog.

Anyway, that aside, I think The Worrier is touching on an interesting and important point, but I’m hoping he is being deliberately obtuse for the sake of rhetoric. The following seems obvious to me: I am in agreement with anarchist and feminist Derrick Jensen, who notes that in our hierarchical society, violence carried out down the hierarchy (man to woman, adult to child, white to black, toff to yob, Protestant to “Fenian”) is acceptable and in fact part of the larger order of things, hence is invisible, while violence carried out “up the chain” is treated as the worst-thing-ever, with demonisation of the perpetrator and fetishisation of the victim (see Premise 4 here).

In this context, “aggravated by…” and anti-rape laws are flawed and feeble attempts to offset what is part and parcel of a hierarchical society that is kept under control by, ultimately, state violence. If I was truly cynical (which I am) I might also wonder whether they are in fact tools in manufacturing consent for the status quo.

In this context the laws will always end up being ignored or side-stepped by jurors with an investment in not seeing the down-the-hierarchy violence that is part of the hegemonic social order. Most of the paltry, few-and-far-between convictions for rape, for instance, happen when the perpetrator is one or more axes below the victim, e.g. is non-white where the victim is white, underclass where the victim is respectable middle class, etc. I make that statement on no evidence whatsoever other than what I’ve noticed myself over the past 30 years or so, so my own confirmation bias may be at play. However, I challenge anyone to come up with rape convictions where this isn’t the case. Any poor immigrant women of colour working in the service industry raped by rich powerful white men for instance?

It’s part of the whole game to muddy the waters regarding who is further down the chain, the perpetrator or the victim. Neil Lennon is a successful, well-off sporting hero. He’s a famous white man. Who is he to cry “sectarianism”? He has more power and privilege than many on the “Fenian”-hating side of the spectrum.

Unfortunately, what’s happened with this case sends a message to all those on the receiving end of sectarian violence: that even if you are rich and powerful your abusers won’t be convicted, even under a special law designed to protect you. What hope in hell do you have?

Kind of how women feel every time a Polanski, Tyson or C Breezy is publicly defended, or a French politician gets away with dislocating a shoulder and bruising a vagina, or a young girl is convicted of making a “false accusation” of rape (here and here).

That jury and that court have done their job well: business as usual.

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9 Comments (+add yours?)

  1. mhairi
    Sep 02, 2011 @ 12:04:10

    Do you know, I made exactly the same connection as I heard about the Neil Lennon stuff.

    I know next to nothing about football and I have absolutely no interest in it whatsoever, but I could sympathise with the outrage of people on someone being cleared of a crime that it is completely self-evident that they committed…with overwhelming evidence and with admission of the event in question.

    The next logical step is for Neil Lennon to be prosecuted for wasting police time.

    Reply

    • Morag Eyrie
      Sep 02, 2011 @ 12:09:53

      Indeed… or I could say “Now, now Mhairi, he *is* a powerful white man, that’s taking it *too far*!” But I think that was the point you were making with some nice subtle sarcaaaaaahhhhsm :-)

      Reply

  2. winston smith
    Sep 02, 2011 @ 17:06:23

    Mhairi..

    “with admission of the event in question.”

    No he didn’t admit the event in question Mhari. He admitted to assault but was charged with sectarian assault. The jury didn’t know whether to believe him or the steward who heard the ‘fenian bastard’ comment so had to go for ‘not proven’.
    Still a mad verdict though.

    Reply

  3. mhairi
    Sep 02, 2011 @ 22:36:53

    Okay…but they could have withdrawn the reference to sectarianism if that was their only issue.

    …and what was his defence based on, just that he didn’t assault him out of sectarian motives. Thats still assault.

    Reply

  4. Lallands Peat Worrier
    Sep 04, 2011 @ 22:42:34

    I appreciate you picking me up on things like this. There’s a lot in this, but I’ll try to keep this answer brief and to the point. If you thought I was just drawing a parallel with our law on sexual offences as a nice intellectual exercise, that wasn’t what I was trying to get at all.

    I don’t know whether you will find it more reassuring, but I raised the questions concerning both of these areas of criminal law in all seriousness. Here is where it gets tricky, and I haven’t yet worked out a neat way, clearly to express what I’m getting at. Here’s a stab. We’ll see if it is more sensible than past attempts in print and in conversation.

    Firstly, our ideas of what criminal law (and law in general) should do, are complicated, and a number of different accounts about what the law is for slosh about in our public debates. Generally, these intensely theoretical ideas are not subject to much critical analysis. Even more so when one is talking about emotionally engaging topics. On one account, it is to do with giving actions and experiences the proper label, to express, recognise, enshrine social values. On this understanding, the concepts enshrined in law are conceived as authoritative – and for many, and many reformers – oppressive. Older reactionary standards are to be replaced with more lively contemporary values. The law reform I mention in the post offers a concrete example of this. During the process leaving up to the 2009 Act, the discourse was really dominated by the poignant vocabulary of victims, which legislators accepted should be “recognised” in the law. If men who are sexually assaulted feel they have been raped, who is the law to tell them otherwise?

    Distinct from this idea of law as expressive (even the simulacrum) of socially agreed values, there are also quite distinct ideas we might pursue about what the criminal justice system is for. It is concerned with risk, about the liberty of subjects who have used their freedom in ways which have caused others to suffer, about dissuading them from doing so in the future, putting the fear of God into others – and so on. This second view of law doesn’t immediately seem to share the sort of Durkheimian idea of law-and-society which an idea of law as a mirror of social values. Its interests are more instrumentally orientated, about getting folk off the streets, disciplining people’s conduct and so on.

    Johann Lamont’s comments about the Sexual Offences Act 2009 combine both of these views. We updated the law better to reflect contemporary understandings, and it will help with the (I’d say, primarily instrumental) goal of securing more convictions. In terms of sectarian debate, the parallel claims about be that adding religious and racial aggravations to offences committed in some sense properly recognises the nature of those offences: it gives them guilty intelligibility. The phenomenon of sectarianism – and law’s stern admonition against it – is inscribed in statute, authoritatively “recognised” by the shared political spaces of Scottish political life, given voice in the law and condemned.

    Lamont’s comment represents, I think, a wider view – that (1) the account of law which gives appropriate and just labels to offences committed and (2) that people are punished for committing offences – are two goals which are perfectly consonant with one another, that you can serve the idea of recognising the testimony of victims and the sufferings of social abuse, and simultaneously punish more sectarian thugs and rapists. The question I posed is basically this. What if these two ideas of law, interests (1) and (2) aren’t as compatible as is often suppose? What if, instead of being complementary interests, a desire to use a strongly condemnatory vocabulary of racism, or religious bigotry actually makes it harder rather than easier to punish people who commit offences which most folk would be willing to agree were prompted by sectarian hatreds?

    One obvious riposte to this is that juries should buck up their ideas, dispense with their reactionary opinions, and damn well return convictions where they believe the person accused is guilty, and not if they don’t. I am not without sympathy for that proposition, but it doesn’t dispense with the (I think, rather troubling) quality I’m struggling to identify here.

    What if more people would be convicted of offences if the language of rape was not used (and I do very understand its poignancy and the political importance attributed to its use), or if you were more likely to punish sectarian incidents of violence if you didn’t libel religious and racial hatred as a specific aggravation? (I’m not saying that this definitively is the case, by the by. We’d need data on that which we generally don’t have and can’t get). Here, the discourse of law as the recognition of claims (number 1 in my account) suddenly finds itself in sharp, and I think obvious conflict with (2) an account of law that aims to achieve particular outcomes, and isn’t so concerned with law as written as the pre-eminent expression of our social values. My point, such as it is, is that we often assume that (1) and (2) are perfectly compatible. Ironic and bleak though it might be, it seems to me worth asking if this compatibility is really plausible at all. If not, we are faced with very tough questions. Is it more important that criminal, sectarian-inspired incidents are punished, or does it matter more than incidents where the underlying facts point to a sectarian animus are recognised in the law as such? Is it more important that the law uses a definitive language of rape, than to secure convictions for sexual offences?

    Reply

    • Morag Eyrie
      Sep 05, 2011 @ 19:37:50

      Hi Worrier, love your idea of a “brief and to the point” answer :-) I will give a similarly brief and to the point response!

      On my first point, which was to do with using rape as a flippant intellectual exercise; I’m pleased you’ve clarified your true intentions. I think my initial response had something to do with how I read the tone of your original piece, which was, admittedly, in the usual Lallands Peat Worrier tone, sort of “tra la la isn’t it fun playing with ideas using big words”. A tone which is usually entertaining, but in this case, for me, was not. But I sensed a more serious point underneath and I’m glad I’ve teased clarification out of you.

      On your overall point about these two possibly incompatible goals of the law. I did see this in your original post but I think you’ve clarified a bit more it here. This is the point that most of *my* post was speaking to. It goes back to this fantasy that most people like to live in, that it’s possible to achieve some kind of justice in this society, the one whose “values” you seem to think the law is there to represent. You know I’m an anarchist so we probably aren’t going to agree on this. But as far as I can see the law is there to serve the powerful in maintaining their power, and in a culture like ours, how the laws are developed and worded is simply part of manufacturing and maintaining the consent of a populace educated to expect certain superficial attempts at justice.

      But if I keep my discussion to your actual point (and apologies for removing this discussion from your blog to this one!), even within the paradigm you are working within, there is something quite sickening to me about the idea that one should give up naming a crime for what it is in order to ensure more convictions. I need to spend a bit more time thinking about this to be more articulate, but, it has something to do with feminist principles around the power of naming, of truth-telling.

      Really, if people are reluctant to convict because a crime is called “rape” or “sectarian” or “racist” or whatever, that is part of the current right-wing backlash we are living in fuelled by global neo-liberal capitalism and the individuation it requires, creates and enforces. You may think it’s always been thus, but I’m one of those who came of age during a brief moment of hope. I recall a case in New Zealand where a man who’d raped a number of sex workers was convicted on their evidence, AND was thoroughly castigated by the judge for thinking he could treat prostitutes differently from any other woman.

      I *do* think it’s a problem bigger than one that just tweaking the letter of the law can solve. I for one, as a member of this society whose “values” the law is supposed to represent, would vehemently stand on the side of these laws telling the truth about the nature of the crimes against the vulnerable.

      However, my original point, that these laws are to do with the invisible and accepted violence “down the chain” of hierarchy, and therefore most people (including those on juries) won’t be able to feel them as truly criminal, stands.That is the underlying problem that this discussion alone won’t find a solution to.

      Reply

  5. Lallands Peat Worrier
    Sep 04, 2011 @ 22:45:06

    There’s a few grammatical clangers in there. Note to self: proof-read!

    Reply

  6. Deep Green Resistance
    Nov 21, 2011 @ 06:34:01

    A movement is growing based on the book, co-authored by Derrick Jensen, called Deep Green Resistance: Strategy to Save the Planet. Deep Green Resistance has a plan of action for anyone determined to fight for this planet-and win. If you’ve ever been inspired by Derrick’s work, then here’s where the solutions are. The time for action is now. Now this war has two sides…

    98% of the old growth forests are gone. 99% of of the prairies are gone. 80% of the rivers on this planet do not support life anymore. We are out of species, we are out soil, and we are out of time. And what we are being told by most of the environmental movement is that the way to stop all of this is through personal consumer choices. It’s time for a real strategy that truly addresses the scope of our predicament.

    Where is your threshold for resistance? To take only one variable out of hundreds: Ninety percent of the large fish in the oceans are already gone. Is it 91 percent? 92? 93? 94? Would you wait till they had killed off 95 percent? 96? 97? 98? 99? How about 100 percent? Would you fight back then?

    Good people have stayed silent for too long. We’re tired of ineffective, symbolic acts – piecemeal, reactive, and sad. Now our despair and anger can be matched by an even deeper joy, beyond compare, the joy of beginning to fight back, effectively. We are pleased to announce the formation of DGR Action Groups worldwide. Take the first step and join the resistance.

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    Reply

    • Morag Eyrie
      Nov 21, 2011 @ 10:49:40

      Thanks for this post on Deep Green Resistance. I wasn’t aware of this latest work of Derrick Jensen’s (and others, obviously). I’ll take some time to have a look round the site. I must say I find the statistics you’ve quoted here utterly shocking, to the point where I find them hard to believe. If *I*, an admirer of Derrick Jensen, find them hard to believe, I’d imagine the majority of readers would find them a reason to dismiss your suggestions without even looking further. I hope to find a source for them on the site you’ve linked to; if it’s possible maybe you could point us in the right direction for the source with a link?

      Reply

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