Thursday 01 June 2023

No, Mr defence lawyer, it does not matter what she was wearing

This column first appeared in Malta Today

I thought we had got past the atrocious practice of asking a victim what she was wearing when she was sexually assaulted or raped. But in 2023 Malta, apparently not.

The line of questioning during a criminal inquiry this week took a decidedly objectionable turn when a woman who was allegedly abducted and sexually assaulted while waiting to catch a bus home from work, was testifying via a video link. She thought he had stopped to ask for directions – instead he pushed her into his van and drove off with her. She gave a harrowing account of the incident which occurred in April of this year at 6pm in broad daylight. The details are enough to make any woman get palpitations and recognise the kind of mind-numbing fear which causes you to freeze and unable to think clearly; what she went through was further compounded by the fact that the accused dropped her off at home afterwards, which meant he knew exactly where she lived.

“I’m terrified to this day. I can’t even go to the shop to buy cigarettes. He broke me mentally,” the woman said, breaking into sobs. 
But then came the cross examination by defence lawyer Mario Buttigieg. According to the court report: “…the first question was about what she had been wearing. The woman replied that she had been dressed in a zip-up hoodie over a t-shirt, black leggings and trainers. “So tight leggings?” asked the lawyer.”

Maybe we all naively thought we had moved on from this kind of sexism, but I guess it still needs to be spelt out for this lawyer and any other lawyer who even dreams of asking this unacceptable question. The outrageousness of even asking a woman “what were you wearing?” cannot be stressed enough. The automatic assumption is that well, obviously, if she was wearing a mini-skirt or a low-cut top, “she was asking for it”. Because, yes, sure it is every woman’s deepest, secret fantasy to be mauled, groped, sexually assaulted and raped by a stranger on her way home from work. Asking what someone was wearing not only suggests some kind of perverted consent, but also implies that a man cannot help himself if he sees a woman dressed in a certain way because, in his mind, his machismo is being coyly beckoned and his testosterone absolves him from even the worst kind of savage behaviour.

I hate to break it to the Neanderthals who still believe that women’s apparel gives them some kind of carte blanche to do what they want, but that kind of thinking belongs firmly in another century. In this particular case the woman said she was wearing leggings – a staple in every woman’s wardrobe – so if every woman who wears them is issuing an unspoken invitation that she wants to be raped, then we are in for a lot of rape. (As for his banal question about whether they were tight leggings…actually, there are no other kind.)

In order to drive the point home that clothes are irrelevant and to dispel the myth that sexual assault could have been prevented if the victim was wearing a “decent” outfit, several art exhibitions have been held around the world which display precisely what the survivor was wearing at the time. The clothes are heartbreaking in how innocuous they are, ranging from T-shirts to jeans to sweatshirts and even a turtleneck. When the UN held its first exhibition in 2021, it consisted of just five outfits, each representing a different geographical region. In 2022, the exhibit showcased 103 outfits worn by rape survivors at the time they were attacked, representing the 1.3 billion survivors of sexual assault worldwide.

Some of the women who contributed to the exhibits have stepped forward from behind their anonymity and have agreed to be interviewed. “‘What were you wearing? Were you drinking, were you dancing, were you smiling too much?’ Those were the questions they asked me after spending hours in two hospital waiting rooms,” said Jessica Long, an author, business expert and assault survivor whose clothes were featured in the exhibit. “You might think that being assaulted was the worst thing that happened to me that night, but it wasn’t. The worst thing that happened to me was being betrayed by the very systems that are meant to support us and protect us… Every year, tens of millions of people experience exactly that betrayal.”

The Deputy Secretary-General of the United Nations Amina Mohammed said, “We need to stop playing the blame game and take action to address the root causes of violence: gender inequality, patriarchal structures in our societies,” she said. “[These clothes] demonstrate more clearly than any legal argument could that women and girls are attacked regardless of what they were wearing. Indeed, the power of some of these clothes lies in their ordinariness.”
In a society which is already hyper-sexualised, we cannot keep dismissing the way women and girls are treated on a daily basis: yes, behaviour, attitudes and language all matter. This is not just a matter of opinion but has been established through academic studies on sexual misconduct which have analysed what we mean by a “rape culture”. “Rape Culture is an environment in which rape is prevalent and in which sexual violence is normalised and excused in the media and popular culture. Rape culture is perpetuated through the use of misogynistic language, the objectification of women’s bodies, and the glamorisation of sexual violence, thereby creating a society that disregards women’s rights and safety.” (Southern Connecticut State University).
While, on the surface, rape may not be very common in Malta, we probably do not know the extent of it since many cases might go unreported. Unfortunately, however, documented sexual assault cases like the one described above, are becoming more frequent.
One also has to bear in mind how much mental strength a woman needs to have to report a sexual assault or rape, and to then proceed with testifying in court. Overcoming these two crucial steps alone are enough of a hurdle. To then be asked what one was wearing is the ultimate insult. While I understand that the role of the defence is to poke holes in the testimony of a witness, there still need to be some boundaries about what questions can be legitimately asked. I hope someone has taken this lawyer aside and schooled him on this matter so that this question is never asked again.

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