Warning: This article contains descriptions of traumatic events, including rape, which some readers might find upsetting.
Humans are not always very good at predicting how we will react in certain situations. In fact, we’re notoriously bad at it. This is one of the things that historically has made attitudes to rape and sexual assault so complex.
"In cold states, when we are feeling calm and rational and not in any danger, it is really hard to imagine what we are going to do in hot states – situations of high energy and stress," Professor Paul Dolan, a behavioural psychologist at the London School of Economics, tells Refinery29.
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"Most people would like to think that we would fight back when we’re attacked," he continues, when I ask him how this might apply to a rape or a sexual assault. After all, how many times have you heard someone ask the tired and reductive question: Why didn’t she just fight back?
"We think, Well, I would have fought back, so why didn’t she? It is difficult for us to understand, and once we believe in something, it is very hard to dissuade us. All the compelling evidence in the world isn’t going to change that."
This is perhaps why one of the biggest rape myths – that not fighting back against an attacker or trying to flee is an indication of consent – has persisted for so long as such an effective line of questioning for defence lawyers in court.
It is a widely held belief despite the fact that there are huge swathes of scientific and psychological evidence to debunk it. And that’s what makes it an easy tool in the manipulation of a jury. It has been this way for centuries.
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One of the biggest rape myths is that not fighting back against an attacker or trying to flee is an indication of consent.
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The ancient Greeks and Romans spun myths of women who begged the gods to be turned into birds or trees rather than remain a 'damaged' woman after an assault. Philomela, for instance, is raped by Tereus then turned into a nightingale. These were later accompanied by legends of brave women who fought their attackers and died from their injuries, and were sometimes made saints or had constellations named after them – like Catholic saint Maria Goretti, who declared she would rather die than submit to her rapist and was stabbed 14 times.
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Later, in the Victorian era, rape was considered a fate worse than death. Women, who were supposed to be virgins until marriage, had better fight back than be sullied and outcast for the rest of their lives. During this period, the accused would remain anonymous in court cases until 'proven' guilty in a trial that would largely be based on gender stereotypes – such as the idea that women were inherently untrustworthy – and heard in front of an all-male audience (the explicit details required of survivors in these trials were not suitable for the ears of a chaste lady, after all).
Unfortunately, our modern criminal justice systems have not come as far from that as you might think.
This age-old myth was peddled recently by lawyers representing Harvey Weinstein. They asked why survivors had not tried to escape him in the hotel room, even implying that by entering the now convicted rapist’s room, they were in some way consenting to their attacks.
It doesn’t stop there. In Britain, a family court judge in Sheffield recently sparked ire for twice ruling that victims had not been raped because they took "no physical steps" to stop their attacker. Judge Robin Tolson has faced calls to resign from peers, campaigners and MPs, and his case was subject to a retrial.
Then there are the many cases (out of the frighteningly few that actually make it to court, with just 1.7% of all reported cases being prosecuted and conviction rates at a historic low) that escape media attention. The same argument is used to discredit survivors on the witness stand – and justify sexual violence.
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I was always the girl who said, 'If a man tries that on me, I'm going to kick him where it hurts and run away.' But in that actual situation, a fear overcomes you and you feel powerless. I was so shocked he could do such a thing, it just freezes you.
Amy* 28
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Amy*, 28, was a schoolgirl when her teacher locked her in a classroom and raped her.
"I was always the girl who said, 'If a man tries that on me, I’m going to kick him where it hurts and run away,'" she says. "But in that actual situation, a fear overcomes you and you feel powerless. I was so shocked he could do such a thing, it just freezes you."
What Amy experienced is perhaps the most common response there is to being raped.
"Most people have heard of 'fight or flight' but not really heard about the other equally common response to danger, which is 'freeze'," explains Noel McDermott, a psychotherapist with years of experience treating clients who have suffered traumatic experiences. "So in truth it is more like 'fight, flight and freeze'."
"All three of these responses are controlled by a bit of the brain called the amygdala in the limbic system," he adds. "This part of the brain makes decisions on which strategy to use, independent of conscious volition. It literally takes over executive functioning around decision-making, memory, movement and more."
The freeze response, he continues, has evolved as a survival mechanism for two main reasons. Firstly, freezing makes prey invisible to many predators whose eyes are more attuned to movement than shape or colour. Secondly, 'playing dead' can often mean a predator will release their prey, as predators are mostly not carrion eaters.
"Obviously a rapist is not a lion trying to eat us so why choose 'playing dead'? Mostly because the amygdala is not conscious, it’s making decisions on the basis of stress hormone levels," Noel continues. "It is activated when those stress hormones – we call it fear – reach a high enough level. It then takes over decision-making from the executive parts of our brain."
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"Freeze is much more common as a response to terror, like being raped, than fight or flight is."
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Freeze is much more common as a response to terror, like being raped, than fight or flight is.
Noel mcdermott, psychotherapist
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Countless scientific papers, studies and experts back up Noel’s explanation of the freeze response. So much so that the Crown Prosecution Service (CPS) actually lists and explains it as a rape myth in its official guidance to judges and prosecutors in rape cases.
However, as in Amy’s case, this has done little to prevent such inquiries being given airtime in the courtroom – and little to ensure that these myths are challenged by judges and prosecutors, or explained to juries beforehand.
"There was CCTV footage of the attack, and it showed him lock me in the classroom," Amy continues. "It also showed him trying to give me money to keep me quiet in my school shirt."
"The defence wanted to know why I didn’t know that I could unlock the door from the inside and didn’t try to escape. It’s just not something you even think of in a situation like that, I was in such a panic."
"Asking me that made me feel angry, belittled and ashamed – like I could have somehow prevented this from happening."
Despite the footage, the question planted enough uncertainty among the jury for Amy’s attacker to be found not guilty beyond all reasonable doubt.
An ISVA (independent sexual violence advisor) offers practical support and guidance to survivors going through the criminal justice system.
Refinery29 spoke to one woman with over a decade of experience working for North London Rape Crisis. She chose to remain anonymous to protect those whose details she shared.
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She said that ISVAs "don’t often go to court anymore because it is such a huge struggle to get these cases through to be prosecuted and the numbers have dropped so dramatically."
The last time she sat in court, she added, was in August 2019.
"Giving evidence in relation to child sexual abuse as an adult, one of my clients was absolutely shocked when she was asked by the defence why, if she had a lock on her bedroom, she didn't barricade herself in from her adult abuser," she explains.
"That client had been in therapy for many years, trying to overcome some of the complicated issues around this because, as a survivor, this is often something you question yourself."
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I had a client who was abused between the ages of 8 and 12. They were questioning why she didn't shout or call somebody. When she said she was scared and froze, the defence challenged that she would sometimes get into fights at school, so why wouldn't she defend herself?
ANONYMOUS RAPE SUPPORT WORKER
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"In other court cases, I had a client who was abused between the ages of 8 and 12 years old. They were questioning why she didn't shout or call somebody. When she said she was scared and froze, the defence further challenged that she would sometimes get into fights at school, so why wouldn't she defend herself?"
"A colleague of mine was supporting someone who had evidence from the toxicology department that she was drugged involuntarily, she had no memory of what happened and couldn't react. There was CCTV of her being pushed into a car, and she is trying to get away but she can't because she was drugged. And she was still challenged on why she didn’t fight back."
Shame and retraumatisation are common side effects for survivors who have their credibility undermined by defence lawyers, significantly delaying their recovery and causing further psychological damage.
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"Particularly, victims can feel they should’ve done more when they went into a freeze reaction and added to that, society then tells them they should’ve done more," McDermott explains. "This produces large amounts of shame, and shame absolutely blocks psychotherapeutic treatment."
"So one of the important tasks for any therapist treating trauma is to normalise the responses of the patient to what they went through and what they did in response, as this reduces the feelings of shame. Once you’ve reduced shame, you can then start therapy for the trauma itself."
Despite the untold harm caused to survivors by using this rape myth as a defence, and despite existing guidelines, our ISVA source maintains that "nobody stops it, nobody challenges it".
"What I don't understand is why a judge would not prevent the defence. In all instances, that question shouldn't be asked anymore, and neither the judge nor the prosecution in any case I have sat in ever challenges it."
"As a result, in all of these cases I have mentioned, the accused was found not guilty."
In 2017, academics Smith and Skinner published a study on the use of rape myths in court, based on live case observations. They found that rape myths were routinely used at trial, and are even kept "relevant" through "a focus on inconsistencies, a dichotomy of wholly truthful/untruthful witnesses, and conceptualisations of 'rational' behaviour as being the 'normal' way to act."
So why are lawyers getting away with it unchallenged? The answer, Centre for Women’s Justice director and lawyer Harriet Wistrich tells Refinery29, lies at the centre of a justice system which is unfit for purpose – and a CPS which makes decisions on cases based on myths in an attempt to second-guess the jury’s response to certain narratives.
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Judges should intervene, and they are trained to do so. But often they don't.
harriet Wistrich, centre for women's justice
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"We see it a lot in decision-making with the CPS too. And we shouldn’t – there should be very robust guidance against that and they should be explaining to juries about rape myths too," Wistrich says.
"There are some very good prosecutors out there, but there are many that let it go. Judges should intervene and they are trained to do so. But often they don’t."
It was recently announced that the 'rough sex' defence could be banned by the government in a possible amendment to the new Domestic Abuse Bill. However, Wistrich doesn’t believe that applying a similar ban on using the 'why didn’t she fight back?' defence in court will necessarily solve the issue.
"It’s all very well passing another law but, like with previous sexual history being used as evidence, we had a law passed to stop that happening but it still filters through in various ways into the system," she continues.
"We have a hugely ineffective prosecution system at the moment that needs to do more to protect survivors and challenge these things."
Alongside the End Violence Against Women (EVAW) Coalition and a dossier of more than 20 survivors who believe their cases have been unfairly dismissed, Wistrich is taking the CPS to court, claiming it has "'raised the bar' on rape-charging decisions and is discriminating against and harming women".
"The government is currently undertaking a 'Rape Review' which should be looking at what happens in courtrooms and what needs to be improved," Rebecca Hitchen, campaigns manager at the EVAW Coalition says.
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"It is vital this is given proper consideration, as what happens in trials feeds back throughout the whole system."
At the moment, Hitchen continues, our criminal justice system is "clearly broken at every level".
"It has reached a point where we have to question any faith in a system which has effectively decriminalised rape."
A spokesperson for the CPS told Refinery29:
"Rape is a devastating crime, and CPS policy is clear: whenever the legal test is met, our dedicated prosecutors will bring charges, no matter how challenging the case."
"All CPS rape prosecutors and the advocates we instruct are specially trained in the complexities of these offences, including how to identify and robustly challenge myths and stereotypes in court."
"All prosecutors are given ongoing training and support to further ensure appropriate decision-making in complex cases, which incorporates new and refreshed legal guidance as well as emerging trends."
*Names have been changed to protect identities.
The advice from the Met Police is to always report it if you have been the victim of rape or sexual assault, and there are many different ways you can do that. If you have experienced sexual violence of any kind and need help or support, please visit Rape Crisis or call 0808 802 9999.