Another US college student accused of rape has been cleared in a criminal court, shining a spotlight on popular assumptions about what makes a victim, and raising questions about what it means to be tried by a jury of one’s peers.
On Wednesday, a six-person jury found former Yale student, Saifullah Khan, not guilty of sexually assaulting another student. As the New York Times reported, jurors delivered their verdict in three hours, purportedly leaving aside the #MeToo conversation — one that dissects power imbalances and male privilege often play in sexual encounters — and focusing instead on the evidence at hand. But by design, the jury also skewed older: The defence, as Vivian Wang reported for the Times, wanted “older jurors, 30 to middle-age,” none of whom “accepted, condoned, or denied the existence of misconduct, harassment, or assault, but … seriously engaged with the need for due process.”
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That age bracket also seems to have served a specific purpose: Older demographics may be more likely to acquit defendants in Khan’s position.
“Defence lawyers have tried to get juries that would be sympathetic to their clients since the beginning of time,” Jerin Arifa, Founder and President of the National Organization for Women’s (NOW) inaugural virtual chapter, Young Feminists and Allies, tells Refinery29. They’ve also tended to fall back on what Arifa calls the “nut-slut” argument: “When somebody is not guilty, you can just use evidence to prove that they’re not guilty. But when somebody is guilty, you have to find other ways to discredit the victim: if you can’t discredit what happened, then you discredit the person.”
That’s precisely what Khan’s defence did. Like so many campus sexual misconduct allegations, the one at the centre of Wednesday’s case followed a night of heavy drinking. The young woman in question told the court that, after a series of Halloween parties in 2015, she woke up naked with Khan on top of her, bruises on her legs, used condoms on the floor, and no clear sense of how she’d gotten there. She remembered drinking with her friends at an off-campus gathering; she remembered losing track of those friends; she remembered throwing up with Khan by her side; she remembered him taking her back to her room; and she remembered going to bed with her clothes on. She reported the incident to Yale’s sexual harassment and assault resource centre on Nov. 2, and the university suspended him one week later, without a disciplinary hearing. Law enforcement took Kahn into custody on Nov. 12.
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In Kahn’s version of events, the young woman initiated sex, and his attorneys hammered away on all the usual victim-blaming defence tactics. Why had she chosen a black cat costume, when she could’ve dressed as a demure princess in a long, leg-covering skirt? Why had she sent him flirtatious, emoji studded texts, if not to indicate her interest? Banter and body-hugging clothing are not interchangeable with the word yes, of course, but the defence also drudged up video evidence, in which the pair could be seen returning to her dorm. The woman said Khan had half-carried her home; defence attorney Norman Pattis said she and Khan looked “like lovers.”
This, according to Wang, is the type of evidence jurors considered more closely, reportedly waiving aside the defence’s more suggestive arguments. But even then, they did not see a boy dragging a drunk girl to her room when they reviewed the footage. A criminal trial demands jurors find defendants guilty beyond a reasonable doubt, and as one anonymous juror told Wang, they simply couldn’t find “enough evidence to show that there could not have been consent.”
Research tells us that many people harbour ideas about what a rape victim looks like, ideas that are inconsistent with the coercive behaviour that often defines campus sexual assault. They might believe rape requires active resistance on the victim’s part, or that rape doesn’t happen between acquaintances. People who maintain traditional attitudes toward gender roles — who would take issue with a young woman drinking or wearing a short skirt, for example — tend toward victim blaming. And a 2015 paper, published in the International Journal of Law and Psychiatry, also suggests that older generations — baby boomers (born between 1946 and 1964) and builders (born between 1924 and 1945) — found victims of sexual abuse less credible than did members of younger generations.
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The jurors who spoke to Wang did express genuine-seeming sympathy for the young woman, and did — as the defence hoped they would — maintain concern for due process. “We wanted really be sure that he was guilty,” another juror, 61-year-old James Gallulo, told Wang, adding that he felt deeply sorry for both parties. But when it came to the backlash Yale students, operating on a “yes means yes” understanding of consent, registered at the verdict, Gallulo had this to say: “I just think it’s lack of experience in the world.”
The world, though, is finally waking up to the idea that gendered power imbalances mean sexual consent can be coerced; that the clothes a woman puts on her body are not a blanket invitation to sex; that a woman who chooses to drink is not asking for anyone to make advances; that whether or not a victim had previously met or even slept with her rapist does not change the nature of the crime. So to see Pattis “steering into these stereotypes” about victims and abuse, as National Women’s Law Center President and CEO Fatima Goss Graves put it, is all the more jarring because it worked.
“Culturally, we’re in a time where people have been given the really rich space to do that, where they’ve been able to tell their stories without the typical shaming and blaming and silencing,” Goss Graves said. “In this moment when we’re having some really important ... conversations about sexual violence, it feels really shocking to see them so flagrantly revived.”
Shocking, and yet familiar all the same.