The Guilt Of Victims

A version of this article was published in The Star.

Of all the conventions we demand of our courtrooms, few are as important or a well known as the presumption of innocence and the requirement for guilt to be proven beyond all reasonable doubt. For good reason, given the awesome power the state wields and its capacity as well as historical inclination to visit all sorts of horrible consequences on the citizen. However, while necessary in criminal proceedings, they are neither standards of truth nor do we generally employ them in everyday life.

Thus it has been strange, though perhaps not surprising, to hear them being repeatedly cited over the last two weeks in defence of Tony Mochama, who has been accused of sexually assaulting fellow writer Shailja Patel. There have been contradictory accounts of what happened and many have latched on to these as reason why we should wait for a court to decide what the facts were. In the meantime, so the wisdom goes, Tony, who has dismissed the accusations as “utter garbage”, must be deemed innocent both inside and outside the courtroom. 

Now, for what it's worth, I have met Tony and we have interacted infrequently over the last 15 years, even together taking a tour of public universities alongside cartooning greats GADO, MADD, KHAM and the late Frank Odoi. Shailja I have only met online and in her writing which is both a source of inspiration and full of integrity.

However, while one can understand the sympathy expressed for the position that no man should be condemned unheard, it is undoubtedly true that this courtesy is rarely extended to the alleged victims. Understood as zero-sum proposition, the legally prescribed presumption of innocence is turned into a presumption of guilt on their part. Most victims of sexual assault have to endure the invalidation of their experience, the assumption that they are necessarily lying till proven otherwise. Victim and alleged perpetrator switch places with the former required to prove their victimhood, to constantly and publicly relive awful experiences in agonizing detail, to have their motives for reporting the assault questioned, to forsake personal dignity as the cost of seeking societal redress.

"What exactly happened? Where were you touched? What were you wearing? Are you sure you didn't invite it, that you didn't secretly want and enjoy it? Hasn't this happened before? Why didn't you go to the police/ Why didn't you report it earlier?" Many will recall the advise offered last year by prominent psychiatrist and psychologist, Dr Frank Njenga, to a woman who was contemplating reporting a sexual assault that had happened during her teenage years. "The truth that you want to tell must, in some way, improve the quality of your life and those nearest and dearest to you.... Is it perhaps because you have an element of guilt about the abuse? More importantly, do you want to tell the truth so that you can hurt the respected elder in the society? ...What is the cause of your wish to state a truth that may hurt you, your children, husband and parents?" 

Yet, as one blogger has explained, we do not have to disbelieve victims in order to protect the legal presumption of innocence. Further, it is necessary to recognize that as the paper, Invalidation: A Neglected Dimension of Gender‐based Violence and Inequality, by Michael Salter of the University of Western Sydney, shows, “victims of gender based violence frequently experience invalidation and disbelief from those in the community as well as from medical and legal services.” Such invalidation has terrible consequences for women and girls who form the vast majority of sexual assault victims.

Viewing sexual response only from the logic of the courtroom means, as Sarah Keenan writes, “we would have to buy into the deeply skewed conclusions of criminal justice systems: that only a small minority of men ever commit sexual assault.” The fact is, sexual assault is much more prevalent than our deeply entrenched patriarchal system would have us believe. Our women are rarely safe. Whether it is in the matatu or in the office or even at home, they are never far away from the unwanted word or touch or grope or worse. Physical, mental and emotional abuse stalks their every step and mostly perpetrated by those most close to them, the very men who should represent safety.

This is a reality our society is loath to acknowledge and abused women are forced to run a gauntlet of humiliation and silencing when they seek protection and justice.  They are often not believed, or even when they do, have their pain dismissed and trivialised. This is not too different from the experience of other victims of the abuse of power.  Think how, for example, the victims of politically instigated violence, of the many massacres perpetrated by our government, the impoverished and marginalised, are made to disappear, to endure their suffering in silence.

Not even our justice system provides a refuge for those whom we have disempowered, including our women. Despite the existence of thousands of survivors and witnesses of the 2008 post-election violence crimes, we are told that there exists no evidence to prosecute any of the offenders. The rules and norms privilege the powerful. Even when we dare prosecute they can afford to tie up their cases in legalistic tape for years on end. They can even secure judgements to stop themselves being investigated! Many times, the presumptions and requirements of the courtroom serve not to protect the innocent but to shield the powerful. Many of the victims, denied justice inside the courtroom, find that outside it, their suffering is itself rendered illegitimate. They are said to have “moved on” or even to have “come out way ahead.”

The gendered logic of power that is an inherent part of our system also serves to protect the accused while enforcing silences and delegitimizing the suffering of women. So Tony’s presumption of innocence becomes Shailja’s burden, the proof that the assault never happened or that she is blowing things out of all proportion. We have seen her, and those who support her, described in the most unflattering light not least by Tony himself.

That one who has changed his story at least once and who was reportedly intoxicated at the time of the incident should be suggesting that his alleged victim, an internationally acclaimed poet, playwright, theatre artist, and political activist “has carved out a carrier (sic) of constantly bringing me down” is an example of how easily the testimony of women, even that of women of distinction, can be invalidated. His unfortunate dismissal of Prof. Wambui Mwangi, who has been one of Shailja’s most outspoken supporters and in whose home the incident took place, as “rather stubborn and opinionated” is another pointer to what Michael Salter describes as “cultural mythologies about femininity that persistently undermine female testimony and draw value attributions away from girls and women”. (The same delegitimizing mythologies of sexuality have seen Shailja and her supporters who have been collectively branded “homosexual activists” as if that, in and of itself, impugns their testimony.)

The same sort of easy delegitimizing was at work in the 2011 case of former IMF head Dominique Strauss-Kahn who was accused of rape by a hotel maid, Nafissatou Diallo. DSK admitted that a sexual encounter had happened but denied any wrongdoing and ultimately the charges were dropped due to doubts about Diallo’s credibility and inconclusive evidence. Of interest here, however, was the eagerness and haste of the media and public to believe that a poor, black woman who had lied on her visa application could not really be the victim.

I believe Tony should have a chance to give his side of the story. But any presumption of innocence must not come at the expense of silencing his accuser or trivialising her suffering. We must listen to, and hear Shailja. We must not seek to humiliate her further. We must not invalidate her feelings or be deliberately obtuse in demanding details of the incident. We must recognize that it takes great courage and great personal risk for any woman to accuse any man of sexual assault in the skewed system we have. We must not add to that burden.