Tom Vinci proposes a public health model for dealing with sexual assault.
I have read that only 33/1000 cases of sexual assault – rape and sexual interference of other kinds — are reported to the police and only six of these reported cases go to trial. No wonder. The costs to the victim (most often a woman) in carrying forward a complaint are significant. These costs include possible police skepticism when non-testimonial evidence is not available (as is frequently the case), as well as verbal and social-media attacks from supporters of the assailant before, during and after the trial. Moreover, providing testimony and listening to testimony from others about the humiliating and intimate events involved in the assault can be a difficult experience. Attacks from a zealous defence attorney during trial and, if there is an acquittal, attacks on her character and motives after trial can also be emotionally and socially damaging. It is a wonder that anyone comes forward to report sexual assault.
How can we do better? Any just system should have certain features: victims should be heard and their complaints should be recorded; perpetrators should receive swift and certain consequences for their actions; perpetrators should be treated humanely and offered treatment options. But there is a catch: any system having the feature of swift and certain consequences is one that increases the risk of convicting innocent people beyond acceptable levels. To compensate for this, the consequences must be milder than lengthy terms of imprisonment, but still ensure accountability and deterrence.
Here’s a model for how it might work. If a woman believes she has been the object of a non-consensual sex act, she can report this to the non-police authorities at which time they can explain available options including the option of a criminal complaint. After discussing the situation with the woman and hearing from her, the authorities might make a non-binding recommendation about which option would best serve her needs, as well as the need for public safety.
Let’s say that the recommendation is to take a path that does not involve a criminal complaint and, for personal reasons, the woman agrees to this. Let’s say that the assailant’s name is “Fred Smith.” The authorities would then open a file under the heading “Fred Smith” (and include other identifying information). The authorities would then contact Mr. Smith indicating that a report has been made naming him as “the other party” in a non-consensual sex act. The authorities would then visit Mr. Smith, at which time the availability of treatment options would be politely mentioned. Mr. Smith might pursue none, one, or more of these options. Mr. Smith would also be informed that a file has been opened and will be updated when, and if, other reports are made. Let’s say that in a few months’ time Mr. Smith is again reported as “the other party” in a non-consensual sex act. Another visit from non-police authorities occurs, this time with a firmer tone about the need to seek treatment, and a warning: should a third report be received then some mandatory and more invasive measures will be taken, for example, the wearing of an electronic bracelet. Further reports might lead to some form of mandatory detention. All of this is made very clear to the alleged assailant in the initial contact, thus hopefully serving as a deterrent to repeat behaviour. None of these interactions with the non-police authorities involve, on the woman’s side, a trial or the exposure of her name or any of the other attendant costs mentioned earlier or, on the man’s side, also a trial, or incarceration under prison conditions, or a criminal record, or indeed, any public record.
An analogy. When there is a danger that a contagious disease might affect a population, public-health authorities take various measures to minimize the danger. First, there is identification of people carrying the disease. They are advised to seek medical help. If they decline to do so, then there are escalating options available to public health officials including, at the extreme end of the scale, quarantine. The latter is a form of non-consensual confinement but it is not a form of punishment and is not carried out in a prison. That is perhaps why it is acceptable to do this to a person without the formal mechanisms of trial and conviction.
What might justify likening someone who commits sexual assaults to a person posing a public health risk? In some cases, it is possible to see sexual assault as a sexual dysfunction with public safety ramifications: a public health issue. In other cases, sexual assault might be seen as akin to an addictive behaviour. And so I ask: Why not think about shifting our approach to sexual assailants in the same way?
Tom Vinci is a retired Professor in the Department of Philosophy at Dalhousie University.