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Law professor: Myths about rape persist despite new consent law

Law professor Trine Baumbach describes the consent law as »a paradigm shift«. But she also calls rape cases the Achilles heel of the justice system in her new book. Why? Because of what we think we know about rape victims.

If Trine Baumbach was not aware that her opinion was unpopular in early 2020, she only had to glance at a few headlines: »Professor goes it alone,« on [in Danish], for example.

Most members of the Criminal Law Council agreed in February 2020 that the rape provision in the Danish Criminal Code should be changed, but only Trine Baumbach insisted that ‘consent’ [Danish = ‘samtykke’, ed.] should be the guiding principle for the new law. The other ten lawyers on the council wanted it to be based on ‘consensuality’ [frivillighed, ed.].

For some, the distinction was, and still is, semantic. But not for Trine Baumbach, who has now, a year on, published an anthology, The rape case – The Achilles heel of the legal system.

»If we agreed on consensuality alone, I was concerned that we would not be able to handle some of the serious cases where women are harmed for life but are so scared that they are unable to protest.«

Some of these difficult cases have found their way to her inbox.

During the debate about consent, she received emails from more than 50 rape victims, who told their stories and gave her permission to use them. One had been invited to spend the night with a friend in Jutland but had been raped as soon as she arrived. Others had woken up in the middle of the night after their abuser had initiated intercourse against their will.

And in every case she read about, the defendant had been acquitted.

»I was incredibly touched by those accounts,« says Trine Baumbach.

»They confirmed to me that a lot of rape victims experience lasting damage that they cannot simply move past. They cannot just say: That was a crazy weekend, but now I have to move forwards. They are traumatised and, therefore, they follow the debate closely and need to see progress. They have not only been raped, they have also been let down by society and law enforcement.«

A historic milestone

A lot has changed since then.

Trine Baumbach’s unpopular opinion from the Criminal Law Council was enshrined in legislation at the end of last year when a unanimous parliament passed the consent law.

This law was called »a historic milestone« by the Social-Liberal Party’s legal spokesperson, Kristian Hegaard, while Minister of Justice Nick Hækkerup (Social Democrat) called it of »one of the most important victories for gender equality in Denmark in a very long time.«

There are examples of defendants being acquitted, even after they admit that the woman was crying, as they claim that they did not realise that meant the woman in question did not want to have intercourse. Then I just think: What? She was crying! Did you think they were tears of joy?

Trine Baumbach, law professor, UCPH

Trine Baumbach calls the new law a paradigm shift.

She says it will reduce the number of unwarranted acquittals that were a result of the old rape provision.

»There are examples of defendants being acquitted, even after they admit that the woman was crying, as they claim that they did not realise that meant the woman in question did not want to have intercourse. Then I just think: What? She was crying! Did you think they were tears of joy?« says Trine Baumbach.

»Therefore, it is very significant that the emphasis in the evidence has shifted from what the defendant did not know, to what made him think that the woman consented.«

But why is Trine Baumbach publishing a book about the rape debate now? And a book calling it the Achilles heel of the justice system, at that? Are rape cases still the Achilles’ heel even after the introduction of the consent law, which she calls a paradigm shift?

Yes, says Trine Baumbach, because the new consent law may well be historic, but it is not a miracle cure that will automatically lead to a myriad of convictions.

There is still a long way to go: According to the Danish Crime Prevention Council, 11,400 women are subjected to rape or attempted rape each year, but only a fraction of these crimes are reported, and even fewer end with a conviction. In 2019, there were just 314 rape convictions in Denmark.

According to Trine Baumbach, some parts of the judicial system lack knowledge about the complexity of rape cases. And it is precisely this knowledge that Baumbach and her colleagues, Linda Kjær Minke and Tine Søberg, intend to impart with their new anthology, which sheds light on three aspects of rape cases: Rape as a phenomenon, the investigation of rape and rape trials.

Victim had bleached hair

One of their goals is to eliminate some of the prejudices that, according to Trine Baumbach, ruin the debate and lead to incorrect outcomes in many rape cases. Myths about rape, as they are called in the first chapter of the anthology.

A few years ago, some of Trine Baumbach’s students submitted a thesis on rape cases that had never been investigated. In one of the cases, a police officer had noted that the woman who had reported the rape had bleached hair.

Why had he done that, one might ask?

»The rape provision does not mention anything about bleached hair,«  Trine Baumbach points out.

However, the explanation is simple, she says: The phrase is an expression of one of the most widespread myths about rape cases: the myth of »the ideal victim«.

»That is why the police officer wrote that her hair was bleached. Maybe that meant she was easy?«

Trine Baumbach, law professor, UCPH

The ideal victim is »a small, sweet woman« who leaves her home in broad daylight to run an innocent errand. She walks through a peaceful neighbourhood where there are no obvious dangers, but suddenly a vile criminal jumps out of a bush and rapes her.

This ideal victim probably does not bleach her hair.

»That is why the officer wrote that her hair was bleached. Maybe that meant she is easy?« says Trine Baumbach.

»The concept of the ideal victim affects all victims. Imagine a victim who was at a party, got drunk, and, because it was a Saint Hans party, wore a skimpy summer dress? She does not live up to the image of the ideal victim. Does that mean she’s not a victim?«

Demonstrates a lack of knowledge

The myths are not just about hair colour and clothing choices.

According to Trine Baumbach, another myth is that many reports of rape are false. The assumption is that women who have been unfaithful to their boyfriend or spouse may try to escape blame by reporting consensual intercourse as rape.

The question is, how many women would actually go through with such an accusation?

»How do people react if they have been unfaithful to their partner? They wake up the next morning, think ‘oops’, rush into the shower, put on clean clothes and pretend it never happened. That is what men do, and women react in the same way. No one in their right mind goes to the police and reports it as a rape,« says Trine Baumbach.

And women who have been raped do not necessarily react in the ways most people expect either.

Instead of immediately reporting the crime, many victims rush home, wash their clothes, take a shower and bury themselves under their duvet, hoping the pain will be gone when they emerge.

After a day or two, however, they realise that it does not go away, but several weeks may pass before they tell a parent or friend what happened.

In such cases, the physical evidence is compromised. But the time between the rape and the victim reporting it cannot be used as proof that an accusation is false, says Trine Baumbach.

Nonetheless, it is often used in this way in court cases, she points out.

»This simply demonstrates a lack of knowledge about how people react to trauma. When people experience something this brutal, they may respond by detaching themselves from it in an attempt to regain control of their lives. They try to do something to regain control: showering and washing clothes, trying to go to work and function normally.«

Not all police officers, prosecutors and judges are susceptible to the myths, Baumbach says. But some are, and this has serious consequences.

Therefore, she and her fellow researchers have published a lengthy anthology about rape cases to eliminate prejudices and encourage investigators, prosecutors and judges – and laymen for that matter – to reflect upon them.

The aim is to make others aware of their own prejudices and whether they cause them to miss important points and nuances that they would otherwise have seen in cases.

Trine Baumbach, law professor, UCPH

»If someone asked the police officer, ‘Bleached hair,’ why did you write that? ‘ Then he or she might think, ‘Oh yes, why did I?’ The aim is to make others aware of their own prejudices and whether they cause them to miss important points and nuances that they would otherwise have seen in cases.« says Trine Baumbach.

»The very best thing would be if people stopped committing rapes, but the next best thing would be if all actors in the judicial system could handle rape cases with greater professional insight, so that perpetrators are convicted and innocent people acquitted.«

Must not make it harder to be a man

One reason it took so long for the rape provision to progress from what Trine Baumbach calls a medieval view of women is that the older generation has been dragging its feet, she says.

And she is unimpressed by criticisms of the consent law [in Danish], even by lawyers. One argument she has encountered is, for example: »We must not make it too difficult to be a man.«

»If that idea appeals to people, it bears witness to a slightly old-fashioned and patriarchal view of relationships between men and women,« says Trine Baumbach.

At one point, she was even asked if she thought all young men should go to jail since she was in favour of the consent law.

»There has been a perception that if we get equality in this area, then we will end up putting half of the population in prison. But that is not going to happen. Most men and women are decent people and never even come close to being charged with rape. It applies to a small group, and yes, I think people who commit rape should go to jail.«

»I sometimes wonder why men as a group do not get angry and say: We are not wild animals who rape everyone in sight. In my opinion, the old provision protected a few bad apples to the detriment of the many decent men.«

Several prominent lawyers are critical of the new consent law because they doubt that it will lead to more convictions, and because they fear that the law may jeopardise defendants’ legal rights. Because with the consent law it is not enough to say: »I did not know that the woman did not want to«.

Trine Baumbach does not think much of the latter argument:

»Legal rights are a dangerous concept because people say: I am in favour of legal rights! Well, then one must ask: Do you think the rest of us are not?«

»It is always easy to play the legal rights card. I think that a lot of people – including lawyers – do so in cases that really have nothing to do with legal rights, but rather are an expression of their own point of view about legal policy.«

She does not believe that defendants in future rape cases will be put in an unreasonable position because of the new legislation.

»There was a debate about how consent should be given. Do we have to use [the Danish identification system, ed.] NemID or what? I can see the funny side of that but, joking aside, it is incredibly simple. All adults who are sexually active know exactly what we are talking about. You respond to a kiss, you help to take off your clothes, you do all these things in a way that expresses what you want, and if you are still in doubt because the other person is passive, then you have to ask. Speaking is permitted. ‘Are you okay? Do you want this to happen?’«

»There will also be unwarranted acquittals under the new provision, because there will be cases where it cannot be proven beyond reasonable doubt that the accused is guilty, so he must be acquitted. This is how it should be in a society governed by the rule of law. I completely agree with that.«

Society must react

According to Trine Baumbach, the reason the consent law was passed by the Danish parliament at all is that the younger generations in society have not inherited the old prejudices and myths about rape cases.

She has also noticed this when teaching future lawyers at the University of Copenhagen.

»To put it a little flippantly, I think time has helped. Young people have a more modern view of the relationship between men and women and of sex than the older generation,« says Trine Baumbach.

Indeed, the view she held alone in the Criminal Law Council has now become law.

She says she does not see this as a personal victory, but she is pleased that her research has had significance in the real world.

»The most satisfying thing, however, is if the law creates a better legal position for victims of crime. We live in 2021, there is equality… «

She searches for the words.

»Have you ever run out of arguments because you think your point of view is so blatantly correct? Of course we have to protect those who are victims of violent attacks. Society has to react to that.«