source - http://sisyphe.org/article.php3?id_article=3984 -
Nothing that is sexual can be considered criminal : hidden sexual violence in the DSK case
18 septembre 2011
par
A crime is by definition something that goes against the victim’s wishes and is contrary to communal existence and acceptable social interaction. However, we presume that if something is sexual, it is desired by all the individuals involved, and constitutes one of the foundations of social interaction. To presume that rape is sexual, rather than sexist, undermines the very foundations of the criminal charges – something that is an everyday act cannot be considered a crime ; something that is desired cannot be denounced. These paradoxes cast an underlying suspicion on the credibility of victims.
In France, the presumed guilt of Ms. Diallo illustrates that the concept of “sex” negates that of crime. Sexist crimes are described as “sexual” in order to whitewash them.
1. Presumed guilt
On the 14th May 2011, Dominique Strauss Kahn, who was at that time the head of the IMF, was summoned to court by the prosecutor of New York for “a criminal sexual act in the first degree, attempted rape in the first degree, sexual assault in the first degree, unlawful imprisonment in the second degree, non-consensual molestation and sexual assault in the third degree” (1).
Nafissatou Diallo, the alleged victim, is a “racialized”, non-national, working-class woman employed in a female occupation.
Since the beginning of the trial, charges and forensic evidence have been revealed, and the prosecutor has staunchly defended the victim’s credibility. Despite that, we have seen an almost unanimous defence of DSK in France. Journalists, politicians and celebrities have come forward to explain away French “libertinism”, celebrated the ins and outs of male-female relations (love, eroticism and sexuality) and denounced the judicialization of “sexual affairs” and US “moralism”. These theories are more than simply unconnected, irrelevant points - they have become consolidated to the extent whereby they have replaced the initial “sex scandal” concept that lies at the heart of the trial.
The alleged crime has been inextricably linked to sexuality and dismissed as a matter of “private life”. While some said that it was simply sex, others – following the lead of DSK’s lawyers who said that they were “surprised that such an unattractive woman had come forward” (BFM TV, Monday 16th May) - said it could not even have happened. In any case, nobody spoke of a crime. This spontaneous defence was far from short-lived – it prefigured a general mystification of the affair. Indeed, from the beginning of the trial up to the announcement the possible dropping of charges (6-7 July), almost all those involved glossed over the forensic evidence of violence and focused on a single finding – the presence of semen.
Politicians and the media have ignored the vaginal bruising, the torn shoulder tendon, and the bites and scratches. On the 3rd July 2011, daily newspaper Metro summarized the case as a “jumble of versions linked by one single fact – sexual intercourse between Dominique Strauss-Khan and Nafissatou Diallo”. Only the presence of semen is considered a proven fact, so only one act seems to be established – that of sex. The facts used as evidence and which form the basis of the charges, therefore no longer relate to a crime (signs of violence and harm) but to sexuality. This process belies the idea of crime, even though it lies at the heart of the trial. How, therefore, can the investigation and the victim’s claims be justified ?
Why have the signs of violence been so easily “forgotten” ? Because their value as evidence has been disqualified. In the 11pm edition of BFMTV on the 23rd May, the journalist explained which physical signs of violence are proof that a sexual act has been forced : “Rape will leave signs of physical violence on the legs or sexual organs. After fellatio, the visible signs of beating or scratching can be linked to the act of sex”. We can see then, that when there is a presumption of sex rather than of crime, the evidence presented is back-to-front – rather than focusing initially on the signs of violence in order to determine whether the act was sexual or aggressive, we focus on acts that are presumed to be linked to sex (fellatio and anal or vaginal intercourse) in order to evaluate whether or not the signs of violence constitute evidence. If the crime is treated as sexual, signs of violence become evidence of sex. The victim’s credibility is therefore questioned - not regarding the reality of “sexual contact”, but regarding the abuse that she has suffered.
On the 2nd July 2011 in a broadcast by Ruth Elkrief on BFMTV, while a journalist insisted that there were signs of violence, the guests stubbornly maintained, “torn stockings ? That could just be part of a role-play”. “Forensic evidence of violence ?” they repeated. “That has not been proven”. What has not been proven ? Violence in the sense of unlawful personal injury. Accordingly, any evidence that could corroborate the crime theory was neutralised – as long as they related as much to sexual intercourse as to assault, they were no longer considered to be evidence.
Discrediting signs of violence reduces the trial to “one person’s word against another’s”. The victim’s credibility becomes a deciding factor. Credibility depends on social power relations, which are largely unfavourable towards women.In France, accusations of attempted rape or statements by journalists regarding DSK’s sexual attack have not shaken his defence. What has created this obstacle ? The presumption of innocence. Politicians and journalists are scandalised that he could be “treated like a criminal”.
Officially, only the photos of a handcuffed DSK contradict the presumption of innocence. According to these, he is guilty. But the principle of French law has taken on a whole new dimension. In this case, the diatribe was targeted at the charges, and the actions taken due to the presumption of his guilt (arresting him to carry out tests, putting him in custody for interrogation, imprisoning him if there was any suspicion that he might flee). In DSK’s case, it was prohibited to presume that he was guilty. Journalists and politicians established the following absurd logic – as long as there is no evidence, he cannot be presumed guilty ; but the only way to gather evidence is to presume that he is guilty. So, as long as there is no evidence, evidence cannot be gathered. Suspecting someone to be guilty is the only reason to carry out an enquiry. In this way, they were invalidating the principle of the investigation. In stubbornly pitting the presumption of innocence against evidence of violence, they challenged the value of the investigation. In fact, the presumption of innocence has been a weapon of French law used against the rape victim to refute her claims (see Christine Delphy, 2011).On the 1st July a document by the prosecutor revealed that the alleged victim had lied to the immigration services, the tax services and the prosecutor in the DSK case. The only lie (which has since been contradicted) concerning the facts is this - initially, she said that she had gone directly to her supervisor to report what had happened. Then, on the 28th June, she claimed to have cleaned a room before going to her supervisor. She is also said to have covered up a phone call from her husband in prison – around 24 hours after the alleged crime, she told him what had happened to her, he asked her how she was, and she replied that he should not worry. “The guy has a lot of money”, she told him. “I know what I’m doing.”(2) This last sentence effectively destroyed her credibility. She had been found in a compromising position that transformed her from the alleged victim into the absolute manipulator – "the whore". On the 3rd July 2011, the New York Post started the rumour that Nafissatou Diallo was “accustomed to having paid sex with guests from the Sofitel”. The newspaper even alluded to a Guinean prostitution ring. Thanks to Nafissatou Diallo’s lies, DSK was released on parole on the 1st July.
Why did Nafissatou Diallo’s words destroy her credibility ? Because she had justified her "whore’s" stigma. Why ? Because if a legal question relates to sex, damages (which she spoke of freely) no longer constitute compensation for abuse, but payment for sexual intercourse (i.e. prostitution). While compensation can never negate a crime, here it could render the crime prostitution, since theoretically the act amounts to payment for "sexual intercourse".A woman who reported a rape has gone from being a victim to the accused. This is a reversal that is once again based on dismissing evidence of violence, in this case mental violence. Studies on mental trauma can prove this – factual inaccuracies and certain types of behaviour can be symptoms of trauma (emotional numbness, disorientation, passivity linked to shock and depersonalisation, post-traumatic amnesia, a sense of unreality, etc) (3). These are then used against the victim. Pretending not to realise that rape can alter a person’s mind is simply another way of denying its seriousness. There will even be a sense of empathy verging on compassion for the accused - he was probably caught up in his "natural impulses" and driven to commit the "slip-up", or even to "subconscious political suicide" (J.A. Miller and others).
In France, no advocate of the presumption of innocence mentioned this when DSK’s lawyers said they wanted to take Nafissatou Diallo to court for false accusations. On the contrary, the media and politicians announced the end of the trial as soon as DSK was released on parole. Why did they think that they could nullify a rape charge by destroying the credibility of the alleged victim ? Moreover, why did they think that her credibility depended not on the evidence supporting her version of events, but on her morality and behaviour ? Because in France, that is how things are. In those rare cases where people are tried for rape, the majority are dismissed thanks to the same presumption of guilt that was launched against Ms. Diallo, and that has been denounced by feminist groups and Dr. Muriel Salmona (in "La nausée").
2. Qualifying the crime as "sexual" in order to neutralise evidence of violence
What is this practice of whitewashing sexist crime based on ? It is based on this - assuming that the acts are sexual. In reducing the acts at the heart of the trial to an everyday occurrence (sexual intercourse), only the behaviour of the victim is able to qualify them as criminal.
Unlike criminal acts, sexual acts can be desired. That is why the classification of an act is based on the idea of consent. Therefore, erasing any possible traces of the crime is easy – patriarchal definitions of sexuality give violence towards women an exceptional status, so that the signs of violence no longer indicate abuse. Indeed, for psychoanalysis, sexology (4) and pornography, sexuality is a natural form of violence that women desire. The porn industry is simply a neoliberal revival of this sexist dogma. It channels women’s demands for pleasure and liberty by creating a character who finds pleasure and liberty in subordination – the "slut". At the centre of its eroticism is rape (Andrea Dworkin, 1981 ; Diana Russell, 1998 ; Gail Dines, 2010).
Contrary to what pornographers claim, they do not present "raw", "technical", "unemotional" sexuality. They convey a remodelled vision of an emotion – hate ; primarily sexist hate, but also racist hate. All the scenes are directed in order to provoke contempt for women and incite a desire to violently abuse them. Pornography eroticises violence, using “deep-seated” female nature as a justification – the level of enjoyment desired by the "slut" is so degrading that she has to be taken by force. Pornography presents sexuality and the "slut" concept simultaneously. It defines women in terms of their degrading sexuality, and defines sexuality as something that degrades women. Female nature is therefore entirely contrary to human nature (5) - for "the Woman", freedom is synonymous with alienation, equality is found in submission, pleasure results from humiliation and desire leads to self-destruction. Female sexuality is also completely contrary to sexuality described by Foucault, which is synonymous with the “construction of the self”, identity and liberty. "The Woman" rejoices in all that would destroy, humiliate or dehumanise a Man – abdicating his desire, his dignity and freedom and delivering his body to the desires and actions of another.
This propaganda attacks our rights by undermining our credibility – how can we complain of so-called "sexual" violence if we allegedly enjoy the things that make human beings (i.e. men) suffer or feel degraded ? How can we be natural persons (in the legal sense of the word) when "female" subjectivity is inextricably linked to irresponsibility (we don’t know what we want, we say yes when we mean no, we want to self-destruct) ? How can we prove the damage caused by sexual violence when rape itself lies at the heart of dominant sexual norms ? Every sexist crime already has a “porno” profile. “The black woman who enjoys being raped and beaten by a white man while she cleans his bedroom” – it’s a ready-made porn scene. How can we denounce a crime or incite empathy when pornographic media corrupts the way policemen, magistrates and journalists perceive these crimes ?
3. Although it is sexual, no one has died
To mistakenly label a sexist crime "sexual" therefore holds serious implications in terms of the way evidence of violence is perceived. It turns this evidence into proof of sexuality. It is deemed sadomasochistic, according to ideas established by pornography. So signs of violence no longer prove violence in the sense of unlawful personal injury. Evidence of lack of consent (i.e. violence) is disqualified. What is more, the definition of "sexual" crime is changing – it is no longer a question of proving the overall damage done (traces of violence, psycho-traumatic after-effects) according the standard criteria for an attack against a human being. These criteria no longer apply to women when the acts are labelled "sexual", as sex-related violence is not supposed to damage a woman’s integrity. The legal question is not, as in the case of crime, "knowing what causes harm to a person, are the acts criminal ?" but, "what is it possible for a woman to consent to ?" In sexist crimes that are labelled “sexual", the line between the just and the unjust depends on prejudices regarding women’s sexuality.
Therefore, sexual logic prevails over criminal logic. If sexuality is classed as "good" violence since it is necessary, does this mean that the victim is complaining of being destroyed by acts that are inherently destructive ? No – she is complaining about something that could have been pleasant… had she consented to it. Is it really justice to make such acts public ? No – it is a scandal, whereby a woman exposes her own and another person’s sex life, and outrages the public by describing all the gory details. Is the attacker fully responsible ? No. The motive for the crime is presumed to be sexual, and the physical (rather than emotional) nature of male sexuality removes his responsibility. This undermines the notion of guilty intention, an important criterion in the accusation. J.A. Miller (follow link), for example, a renowned psychoanalyst, endows "martyrs" like DSK with a "natural impulse" and unconscious state - a mental and criminal aberration. These sexual impulsives should therefore be looked after, rather than locked up. Claude Hagège (9th June 2011, Ce soir ou jamais) assures us that "treatment [would] help DSK to overcome his impulses".
But above all, if traces of violence do not prove that any harm has been done, it is impossible to prove the crime. The truth can only emerge out of a confrontation - "one person’s word against another’s". The likelihood of acts having taken place therefore depends on how coherent one’s behaviour is with dominant ideas of the "good rape victim”. What is more, the victim’s credibility becomes a deciding factor. Destroying it destroys the entire basis of the accusation. What are the two sexist stereotypes that discredit all accusations of violence ? The "slut" and the "whore", since one takes pleasure in everything and nothing destroys her, and the other personifies the "woman sold", in both the economic and moral sense of the word (6). This is why any mention of S&M scenarios, prostitution or lies that do not support the facts provide sufficient cause to nullify the basis of rape charges.
According to French law, the alleged acts in the DSK case constitute a crime. Jack Lang (JT, 8pm on the 17th May 2011) said he could not understand why DSK had not been freed "since no one has died". When questioned by an economist who tried to explain that a person could not return to their political occupation after having been charged with a crime, Hagège (ibid.), a renowned linguist, argued, "Sexual crime ! It’s not a crime in the true sense of the word”. In fact, describing sexist violence as "sexual" negates the idea of crime. On one hand, a crime is by definition something that the victim does not want and which is contrary to communal existence and acceptable social interaction. Anything that is sexual is presumed to be desired by the individuals involved, and to be one of the foundations of social interaction. Presuming that rape is sexual rather than sexist undermines the very basis of rape charges – something so ordinary cannot be considered a crime ; something that is desired cannot be denounced. These paradoxes cast an underlying suspicion on the credibility of victims. On the other hand, a crime is an act of violence in the sense that it causes harm. Sexuality is defined as a fair, rather than harmful, form of violence, as it is natural and desired by its "victims". This concept of "natural violence" entirely contradicts the notion of crime. But in fact, let us consider what types of harm crime causes - pain, humiliation, dehumanization and objectification. All these types of violence can be found in pornography, where it is assumed that they bring women enjoyment.
4. Rape is not a "sexual" crime but a sexist crime
In the first few days of the trial, certain members of DSK’s defence cast doubt on the victim’s credibility by saying that he did not need to take by force what he could obtain through charm and riches. In this way, they established a continuum that ran from rape to reciprocal sex, via prostitution. According to this, sexuality in terms of human relationships – which is distinctive as it is based on mutual desire – is completely nullified.
Neither the relationship nor mutual desire forms the continuum. Only the physical element is retained – the contact between sexual organs. As Christine Delphy (2005) asks, "What is sex ? Is it a physical thing, completely separate from the relationship with the person with whom he ‘carries out’ this ‘act’ ? Clearly not. All relationships are relationships. This technicisation of the concept of sexuality is, in my mind, deeply essentialist and biologising. To say that sexuality might be nothing more than a physiological or physical act is a patriarchal mystification of the matter”.The process is as misleading as creating a continuum from a single physical act – being held in the arms of another person. This would liken the embrace between friends to that between the French president and the president of a former colony, or to the embrace of two boxers preventing one another from throwing punches. This false continuum depends on removing the relationship factor, which is the only thing that can distinguish friendship from aggression. This strategy allows dominant parties to conceal violence towards the oppressed that they consider to be legitimate. In the case of the alleged rape in question, we of course saw this in the way men spontaneously came forward to support one of their own.
This reaction was endowed with a semblance of objectivity when, out of all the evidence of violence, the media focused exclusively on the presence of semen. Thanks to this one common factor, rape and sexual intercourse are classed as the same thing - "sexual contact". Again, the relationship factor is ignored in order to erase the link to aggression. The process is as misleading as associating a boxing match with a racist attack by a white man against an Arab under the premise of "sport". In both cases, fists and feet are used. We could choose to focus on only one factor – evidence of punches and kicks – which would indicate what, exactly ? A sporting event, since the rules of French boxing were respected. It would then be necessary to find out whether the victim had consented to the act. The racist attack could be labelled by the media as a "non-consensual act of sport", and by the courts as a “sport-related attack”. Where does this perception come from ? The attacker. He perceives the racist attack as a brief moment of entertainment or sport. According to him, he has not acted through racism ; he simply has his views on "Arabs" – they are exotic, different and impulsive ; they are his favoured boxing partners. He did not want to destroy his victim ; he knew that the "Arab" was simply asking for this. Fortunately, there is legal consensus on this matter – when there is evidence of punching and kicking, there is no presumption of sport. Signs of punching are, a priori, proof of illicit violence. When sport is used as an excuse, we call it an "attack". There is also a political consensus, established through the fight against racism – when difference is used as an excuse, we call it "racist". When a white man attacks an Arab, there is a presumption of a racist attack.
But when a man attacks a woman, there is a presumption of sexuality. Evidence of violence relates not to assault but to sex. The sexed nature of those involved does not bring to mind global inequalities, but Gender Differences. The targeted nature of the violence does not indicate sexist hatred, but sexual desire. In fact, a political crime reflects Nature. Rape is to sexism what lynching is to racism – motivated by stereotypes, the attacker targets its victim because of a single factor – the "natural mark" of his or her inferiority (gender or skin colour) (C. Guillaumin 1992 : 171-194).
Dr. Muriel Salmona (2011, follow link) states that, "Acts of sexual violence have nothing to do with sexual desire or sexual impulses ; they are very effective weapons for destroying and degrading others, making them submit and reducing them to objects and slaves. First and foremost, it is about dominating and exercising one’s supremacy. Rapes are the scenes of murder […] Acts of sexual violence […] have the tragic honour, along with torture, of being one of the most serious and destructive types of violence, and one of the least reported”. Women who report rape by a stranger have almost all experienced the fear of death ; if the attacker is a friend or family member, they speak of seeing in him a desire to destroy, humiliate, silence and take total revenge. Describing these acts as sexual imposes the attacker’s version of events on the victim. If we adopt the attacker’s point of view regarding the acts and the injuries suffered by the victim, the crime is no longer a crime – it is neither violent nor unjust ; far from being reprehensible, it is even considered exciting. It becomes impossible to denounce the violence that characterises the crime.Let us redefine all violence directed against us as "sexist" – whether it be innuendos, harassment, assault or murder.
Let us refuse to see as "sexual" that which men experience as such - harassment, rape, prostitution, pornography and sexual sadism. These acts of violence all come down to dominant definitions of sexuality. It is therefore vital to reject that which those in power have labelled "sexuality".
Let us denounce the legal concept of consent, as it conceals the majority of acts of sexist violence. Men are in control of what we need (access to accommodation, work and resources) ; they therefore have the means to make us yield. They colonise us, sell us through the media and take away our consciences (through physical proximity, exploitation and the media) ; they therefore have the means to make us consent. Judging specific acts of violence (sexist, professional, racist, neo-colonial, paedophilic) in terms of the victims’ consent is a legal scam created by and for those in power.
Let us re-appropriate our desire, which is taken away from us and labelled consent - consenting to another person’s suggestion is not the same as wanting it. Expressing desire means responding either "yes" or "no", since it is not self-determined.
Let us redefine rape in terms of desire - it is not the absence of consent but the absence of desire. Looking at it this way, it is possible to completely denounce prostitution and all forms of sexual expropriation and bribery (by means of accommodation, work, money, resources or love, for example).
Let us remember some simple truths. Rape cases do not naturally lead to "one person’s word against another’s" - rape is not a perfect crime ; it leaves traces, which must not be erased. Rape causes mental trauma – inaccuracies or incoherencies expressed by the accuser may be symptoms of their ordeal. Even though they are conditioned to be ruined for and with a man, women are not pornographic clichés – they do not think "yes" and say "no", they do not enjoy what they complain about. Women are liable to limitless exploitation in the home and on slave plantations, but this is not the case everywhere - a man cannot demand that a cleaner serves his sexual needs ; if he imposes non-consensual acts on a prostitute, it is criminal rape. Notes
1. "Les 7 chefs d’accusation retenus contre DSK", Le Parisien, 16 mai 2011.
2."Vance, histoire secrète d’un fiasco judiciaire", Le Figaro, 8 juillet 2011.
3. See website on psychological trauma (French) : Psychotraumatismes.
4. For a feminist review of sexology, see Sheila Jeffreys (1985).
5. The Taguba report lists the following as “abuses” committed at Abu Graib : slapping the prisoners, filming them naked and in sexual positions, forcing men to wear women’s underwear, the rape of a prisoner by a guard (Follow link). All theses violent acts, which expose degrading treatment and torture, are committed against pornographised women and branded “sexual”.
6. Due to lack of space, I am only able to mention the following few insults directed at Ms. Diallo : the classically sexist "maid", the sexist and racist "hot-blooded" and the nationalist "lying and thieving immigrant". Cf. C. Delphy (coord.).Bibliographie
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Translation for Sisyphe : Emma Bale
On Sisyphe, September 18, 2011