#MeToo, #BelieveWomen Cancel Culture and the erasure of the presumption of Innocence! By Shafic Osman

NB: The word rape and sexual violence are used interchangeably and rape is not used in the limited way ACT 29 defines it. Also, sexual violence here includes unconsented sexual activities with males, indecent assault, and defilement.

The Damning Statistics.

Rape and other forms of sexual violence are pervasive the world over. It knows no race, ethnicity, religion or societal status. It is however largely a crime of power. Rape victims are largely people who are at the “mercy” of their victims. Power here connotes more than just access to political office. It is about the amassing of influence manifested in whatsoever means which allows person A to duly or unduly influence person B. That is why despite how it affects people of all identities, sexual violence disproportionately victimizes females than it does male. Statistics gathered by the Domestic Violence Victim Support Unit over a 6 year period shows that 6 women are likely to be raped in a week compared to 1 male being likely to be raped in the same period.


How we got here

Sexual violence is enabled by what is said to be Rape Culture. Loosely defined, this talks about a milieu created which excuses the violent actions of rape perpetrators while blaming victims for their predicament. It is what leads to questions like “why were you in his room? What were you wearing”? when someone is raped, instead of focusing all attention on the actual perpetrator. This culture also makes fun of a very serious situation. Rape culture allows for jokes which trivializes sexual violence. It is seen in pop culture where comedians and wanna-be comedians alike make comedy fodder out of a serious crime. All in all, societies around the world face different worrying degrees of rape culture. In some cultures it is brazenly in your face to the point where gang raping is a norm and rapists can escape punishment by simply marrying their victims. In other places, it is a bit more subtle in the form of lesser punitive consequences depending on the race of the rapists.


Remedial Options?

The value of the legal system in redressing such problems cannot be overstated. By instituting tougher punishments directed as rapists, we bring about a deterrence scheme that society hopes would prevent a rapist from carrying out his/her heinous acts. That is why the world over, harsher sentences exist on statute books for the crime of rape. Countries with a history of Islamic jurisprudence (Sharia) underpinning their legal systems have death penalties for rape (Saudi Arabia, Afghanistan, Pakistan, UAE) as well as other some other countries which do not have such a history (China and North Korea).  In a majority of the rest of the world, the crime of rape is a felony and attracts very severe custodial sentences. Ghana for instance categorizes rape as a first degree felony with a custodial punishment of 5 to 25 years.

Ordinarily, the prospect of death or longer jail terms should lead to cases of rape being on the downward spiral. However, the reality is far from the ideal situation as shown by the statistics shared earlier on. One a perfunctory gaze, it will seem to be the case that people are unbothered about the prospect of living in jail for longer periods of time. However a much deeper look at the issue reveals something else. Rape victims are generally not likely to report their rape to authorities. According to the National Sexual Violence Resource Center, sexual violence is the most underreported crime with 63% of such crimes not reported and only 12% of such cases against children reported. These are statistics from the USA, a country where there is considerably more confidence in the justice system than there is in Ghana.

The reasons for the low reporting of sexual violence is varied. On the one hand, most rapists and perpetrators of sexual violence are said to be persons closer to the victims. From a parent, sibling, uncle/auntie, cousin to work place colleague or senior, rapists tend to be people who are closely related to their victims and wield some level of power disproportionate to that held by their victims. As a result, reporting the crime to authorities becomes cumbersome as the victim is most likely blamed for being the cause of the violence or told to hush up about. In Saudi Arabia for instance, a woman who reported some men for raping sometime in 2015 found herself being punished for the crime of being indecent at the time of the offence because she was not with her “guardian” (Saudi Arabia practices a guardian system where a woman cannot be seen about without her guardian unless she has consent from him).

It therefore is the case that victims of sexual violence, most of them being women, do not report their experiences because they are most not believed when they do, are shamed and ostracized by their communities and in some extreme cases, might even find themselves being punished. This culture of involuntary silence is what has fueled rape culture over the years. Because people who carry out sexual violence know they will not be reported, they hide, they are unbothered by the punitive measures on the country’s statute books. After all, no one will report them!



Usher in #MeToo

Largely identified with Hollywood stars coming out in droves and sharing their experiences with sexual violence in the entertainment industry, #MeToo has come to represent the largest instance of victims striving to take hold of the narrative on this canker. More accurately however, it was started by Tarana Burke, a black activist who was working with victims of sexual violence in New York. Nonetheless, #MeToo has taken off globally and has seen more and more women being emboldened enough to come forward with their sexual violence experience. In Hollywood, this has seen powerful characters like Harvey Weinstein fall from grace and being slapped with charges over allegations of sexual violence. But like every movement, #MeToo is not devoid of its own criticisms.


The Erasure of the presumption of Innocence

One of the names hauled in by the #MeToo movement was Aziz Ansari, an American comedian who was and still is beloved by many. The minute his name was mentioned by his accuser, what has now come to be known as “cancel culture” was initiated on social media. Cancel Culture refers to a phenomenon in pop culture circles where fans and non-fans alike cancel their “subscription” of a product or entertaining act due to the latter’s stance on a social issue or an  action taken by the latter. So for instance cancel culture has currently been triggered on R-Kelly en masse for over his allegations of sexual impropriety. There is also a debate over whether or not to trigger cancel culture Cardi B over comments she made suggesting that she drugged and robbed men who wanted to consensually sleep with her.

Aziz Ansari’s story represents an interesting example of how cancel culture can get it wrong. After Aziz was hastily canceled, people who paid attention to the minutiae details of his accuser’s story began to wonder whether he had been sexually violent or it was just a case of a regrettable sexual experience which was nonetheless consented to. Majority of people sided with the latter.

The presumption of innocence is one of the most cardinal principles in common law jurisdictions when it comes to criminal issues. When a person is accused of doing something criminal, the justice system does not immediately impute guilt on the said person. It first of all assumes that the said person is innocent and proceeds to subject that person to the mills of criminal procedure. Does #MeToo rob persons accused of sexual violence that presumption of innocence?

What does it mean to say #BelieveWomen?

When US Supreme Court Justice, Brett Kavanaugh was being confirmed before the US Senate, a woman by the name Dr. Christine Blasey Ford came forward with accusations of sexual violence against Kavanaugh. The fallout of that accusation was bitter and prolonged and it seemed to be the case that liberals and progressives alike were unanimous in “canceling” Kavanaugh. People insisted on Kavanaugh’s name being dropped and congress voting against him for the seat on the US Supreme Court. All of this was well before Dr. Ford’s testimony had heard by Congress or any conclusive investigation into the matter. #BelieveWomen was the rallying call.

It would seem like the call to #BelieveWomen, all women who come forward with allegations of sexual violence, is a charge to impute guilt on an accused even before a court starts hearing the matter. To many who have followed sexual violence stories since the start of the #MeToo movement where an accuser did come forward, the imputation of guilt in the public gallery continues to be a repeating theme. Aziz Ansari. Kavanaugh. Morgan Freeman. Tony Forson. To mention a few. Why should we #BelieveWomen at the mercy of the presumptive innocence of an accused, especially when there are instances where an accused is later found innocent. Or even where there are cases of convicted rapists who later turn out to be innocent?

#BelieveWomen might seem to be all about erasing this vaunted principle of innocent until proven guilty but it is somewhat not the case. #BelieveWomen is about being cognizant of a long history of castigating female accusers as liars or the cause of their own predicament. It is about creating a safe space for accusers to come out, knowing that they will not be seen as inherently untruthful persons. This distinction is key. It thus becomes the case that by saying #BelieveWomen, the accused is not instantly found guilty. Far from it. Guilt is an imputation of the criminal justice system with real consequences. #BelieveWomen is more about the accuser than the accused. Admittedly, there is a potential casualty in all of this; the reputation of the accused. We have seen several cases of people found “guilty” in the public gallery going on to lose so much in reputational terms as well as monetary. That is an excess that needs to be dealt with but nonetheless, it will always be the case that an accused person will lose some reputation or money regardless of what heinous crime he or she is accused of ( cue in Casey Anthony and OJ Simpson ). The utility society derives from both the #MeToo and #BelieveWomen is too enormous to be eroded by the non-criminal imputation of guilt.