tag:theconversation.com,2011:/us/topics/timesup-48289/articles#TimesUp – The Conversation2024-03-05T22:28:47Ztag:theconversation.com,2011:article/2215922024-03-05T22:28:47Z2024-03-05T22:28:47ZNon-disclosure agreements are commonplace in sexual harassment cases, but they’re being misused to silence people<figure><img src="https://images.theconversation.com/files/576673/original/file-20240220-18-cck0gn.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C5455%2C3637&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/woman-reading-documents-coffee-shop-girl-1126464620">Shutterstock</a></span></figcaption></figure><p>Non-disclosure agreements (NDAs) came into public consciousness during the #MeToo movement after multiple women spoke out with sexual harassment allegations against film producer Harvey Weinstein.</p>
<p>Weinstein systematically used NDAs to <a href="https://www.theguardian.com/commentisfree/2022/dec/15/nda-harvey-weinstein-confidentiality-clause-abuse">silence victim-survivors</a>. It’s a major reason it took years for his behaviour to be made public. Because of the secrecy involved, it’s also how he was able to continue perpetrating harm against so many women. </p>
<p>We’ve been researching how NDAs are used in out-of-court sexual harassment settlements here in Australia. We’ve <a href="https://rlc.org.au/letstalkaboutconfidentiality">found</a> NDAs remain the default resolution practice for most lawyers, despite guidelines advising against it.</p>
<p>Given <a href="https://humanrights.gov.au/time-for-respect-2022">one in three</a> Australian workers have been sexually harassed in the past five years and that many incidents are not reported, the pervasive use of confidentiality agreements means we know very little about what is happening in our workplaces and the cultural drivers of sexual harassment. It also means victim-survivors may agree to terms that prevent their psychological healing because they are bound to confidentiality. </p>
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Read more:
<a href="https://theconversation.com/buying-silence-we-cant-stop-workplace-sexual-harassment-without-banning-non-disclosure-agreements-172856">Buying silence: we can't stop workplace sexual harassment without banning non-disclosure agreements</a>
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<h2>What is a non-disclosure agreement?</h2>
<p>NDA is the universal description for what we call confidentiality agreements or confidentiality contractual terms.</p>
<p>Most sexual harassment complaints are resolved <a href="https://humanrights.gov.au/sites/default/files/2022-02/ahrc_ar_2020-2021_complaint_stats.pdf">out of court</a> and are subject to a “settlement agreement”. These are contractual agreements that release respondents from any liability in exchange for a benefit to the applicant, such as money. </p>
<p>In Australia, confidentiality and non-disparagement terms are usually part of this settlement, so it’s effectively a NDA. </p>
<p>There is no doubt these agreements can be beneficial, and certainly some victim-survivors seek these terms. However, the Australian Human Rights Commission recognised that they’ve become standard and misused in the <a href="https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020">Respect@Work Report</a>. </p>
<p>The Respect@Work Council was set up to implement the recommendations in that report. The council released <a href="https://www.respectatwork.gov.au/resource-hub/guidelines-use-confidentiality-clauses-resolution-workplace-sexual-harassment-complaints">guidelines</a> in December 2022 on the use of NDAs in workplace sexual harassment settlements. The guidelines say confidentiality clauses should not be seen as standard terms. They say that if NDAs must be used, scope should be limited, with exceptions allowing victim-survivors to speak to people in their support network, such as doctors or family. </p>
<p>We surveyed 145 sexual harassment lawyers to see how the guidelines are working in practice.</p>
<h2>Are the guidelines being followed?</h2>
<p>Even after those guidelines were released and after social movements like #MeToo and #TimesUp, <a href="https://rlc.org.au/letstalkaboutconfidentiality">our research</a> shows 75% of legal practitioners have never resolved a sexual harassment settlement without a strict NDA. This means blanket confidentiality with no carve-outs for disclosures to doctors or other supports.</p>
<p>We found the guidelines are not, at least yet, used as an effective resolution mechanism. In fact, 25% of sexual harassment practitioners have not read the guidelines and they are rarely provided to the other side in negotiations.</p>
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<a href="https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of protestors in an American street holding a sign that says '#MeToo #TimesUp'" src="https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The #MeToo movement prompted some legislative change in the US.</span>
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<p>We also found there is no cohesive approach in the legal profession to how confidentiality agreements are used in sexual harassment settlements. We identified three themes:</p>
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<li><p>some advocates told us the “standard” NDA practice is having carve-outs for victim-survivors to speak to doctors or family</p></li>
<li><p>other advocates spoke of usually having confidentiality around settlement terms only, allowing victim-survivors to otherwise speak about their experience</p></li>
<li><p>many advocates told us that exhaustive or strict agreements are standard practice, which mean a victim-survivor cannot speak to anyone about their experience. </p></li>
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Read more:
<a href="https://theconversation.com/companies-need-confidentiality-clauses-but-not-to-muzzle-sexual-abuse-victims-87716">Companies need confidentiality clauses – but not to muzzle sexual abuse victims</a>
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<p>As an example of the third point, one solicitor said:</p>
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<p>If you propose a non-standard clause which is anything but broad confidentiality there’s such a lot of pushback from the respondents that it just it feels like you both have to advocate for your client and also educate the respondent simultaneously.</p>
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<p>NDAs are not mandatory but their use is so entrenched that many practitioners do not advise of the option of not having one. Close to 30% of applicant practitioners and 50% of respondent practitioners have never provided this advice to clients. </p>
<p>It is a basic premise that lawyers provide advice and clients instruct. It’s spelled out in our Solicitors Conduct Rules. How can a client provide an instruction if they do not know all their options? If clients aren’t being advised on the nuances of NDAs, including possible carve-outs or reduction in scope, they are not empowered as active participants in their own legal matter. </p>
<h2>What are other countries doing?</h2>
<p>In Canada and the United States, legislation has been introduced to limit the use of NDAs and move away from these clauses being “standard”. A key aim of many of these proposed reforms is to provide the complainant with true choice, including proposed laws being considered <a href="https://www.theguardian.com/australia-news/2022/jul/11/victorias-move-to-restrict-silencing-sexual-harassment-victims-welcomed-by-unions-and-lawyers">in Victoria</a>. </p>
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<p>While new legislation is one way to tackle the problem, an effective response may exist already within the regulation of legal conduct. </p>
<p>Until recently in Australia, the conduct of lawyers in negotiations was not commonly considered a disciplinary or professional conduct issue. But in September 2023, the Victorian Legal Services Board + Commissioner <a href="https://lsbc.vic.gov.au/lawyers/practising-law/sexual-harassment/advice-lawyers-using-confidentiality-clauses-resolve">published advice</a> on how lawyers should use NDAs when resolving workplace sexual harassment complaints.</p>
<p>It advised lawyers they must be mindful to maintain the professional duty to act with independence and integrity when also upholding their duty to act in the best interest of their client. This requires careful consideration of clients’ short- and long-term interests. </p>
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Read more:
<a href="https://theconversation.com/banning-non-disclosure-agreements-isnt-enough-to-stop-unethical-workplace-leader-behaviour-173574">Banning non-disclosure agreements isn't enough to stop unethical workplace leader behaviour</a>
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<p>A confidentiality clause may be useful in the short term to protect an employer from reputational damage. The same clause, however, may operate against a client’s long-term interests if the same perpetrator sexually harasses another person and it becomes public knowledge that the business had been using NDAs to hide this conduct. </p>
<p>Our research found lawyers for alleged victim-survivors who advocate on this issue routinely are achieving settlements without strict NDAs. We had many lawyers who act for both employees and employers tell us they have settled multiple matters in the past 12 months without strict NDAs, in ways that are tailored to their client’s needs.</p>
<p>But the advocacy of lawyers can be limited if outdated practices remain entrenched. Ultimately, the entire profession needs to be better educated to ensure these agreements aren’t misused. In turn, we’ll see greater transparency around sexual harassment.</p><img src="https://counter.theconversation.com/content/221592/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Regina Featherstone was a 2023 Social Justice Practitioner-in-Residence at the University of Sydney and is a senior lawyer at the Whistleblower Project, Human Rights Law Centre.</span></em></p><p class="fine-print"><em><span>Sharmilla Bargon was a 2023 Social Justice Practitioner-In-Residence at the Univeristy of Sydney and is a senior solicitor at Redfern Legal Centre</span></em></p>Non-disclosure agreements have been used to keep victim-survivors from speaking up. Despite guidelines addressing this, new research shows such agreements remain standard practice.Regina Featherstone, Social Justice Practitioner in Residence/Senior Lawyer, University of SydneySharmilla Bargon, Social Justice Practitioner in Residence/Senior Solicitor, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2097142023-10-19T15:17:53Z2023-10-19T15:17:53ZHow Vivien Leigh survived Hollywood before #MeToo<p>Vivien Leigh’s achievements in cinema were extraordinary. Known for her glamour and beauty, the actress rose from a bit-part player to become one of the most famous women in Hollywood, playing Scarlet O’Hara in <a href="https://www.imdb.com/title/tt0031381/">Gone with the Wind</a> in 1939. And November 5 marks the 110th anniversary of the birth of the two-time Oscar winner. </p>
<p>But Leigh also worked in an era of deeply ingrained inequality, sexism and racism in the Hollywood industry. The lessons from her life and career arguably take on a new meaning in the wake of <a href="https://metoomvmt.org">#MeToo</a> and <a href="https://www.timesupuk.org">#TimesUp</a>, and the changes they have wrought on women’s agency and equality in the industry since 2017.</p>
<h2>Career control</h2>
<p>Like many of the whistleblowers of #MeToo, Leigh arrived in Hollywood as a young and highly ambitious actress hoping that a personal connection with an important industry figure would lead to her big break. She put herself in the running for one of the most coveted roles of all time in Gone with the Wind by <a href="https://www.theguardian.com/film/2013/nov/22/vivien-leigh-life-on-screen">showing up</a> on set with her then lover, actor Laurence Olivier, demanding the attention of producer David O. Selznick. </p>
<p>The career which followed was punctuated by two Best Actress Academy awards and public struggles with mental health. It was also presided over by powerful men in the industry, from director Alexander Korda to Selznick. </p>
<p>Leigh worked in a period where female stars were contracted, controlled and crafted. Her working partnership with Olivier afforded her a mentorship which she deeply valued, but also placed her in his shadow. Theatre critic <a href="https://www.theguardian.com/arts/critic/feature/0,,567652,00.html">Kenneth Tynan</a> famously hounded her with <a href="https://www.theguardian.com/lifeandstyle/2021/aug/08/from-the-observer-archive-the-fiery-life-of-vivien-leigh-remembered-in-1977">negative reviews</a> of her theatre work – always in direct contrast to his admiration of Olivier’s achievements.</p>
<p>Letters from her <a href="https://academic.oup.com/book/39639">archive</a>, which I have studied, also reveal her difficult experiences on set, particularly during Gone With the Wind, where she was made to work 16 hour days for six days a week with extremely limited rest and sleep, often in conflict with her director Victor Fleming.</p>
<p>But Leigh worked in an era where outrageous misogyny was an industry norm in many regards. Take, for example, the treatment of Judy Garland on the set of The Wizard of Oz by the ultra-powerful producer Louis B. Mayer. Garland, who was just 16 at the time, was subjected to sexual harassment and physical and psychological abuse throughout her time at <a href="https://www.washingtonpost.com/podcasts/retropod/judy-garland-and-the-long-history-of-me-too-in-hollywood-1/">MGM</a>.</p>
<p>Leigh also crossed paths with stars whose abuse at the hand of male industry figures has been well documented. Marilyn Monroe took over the role that Leigh had played on stage in The Prince and the Showgirl in 1957, for example, co-starring with Olivier. Monroe had written a piece for the fan periodical <a href="https://onlinebooks.library.upenn.edu/webbin/serial?id=mpmag">Motion Picture Magazine</a> a few years earlier titled <a href="https://archive.org/details/wolves-story/mode/2up">Wolves I Have Known</a>, calling out the sustained sexual harassment she had faced from men in the industry from the earliest days of her career. </p>
<p>And Leigh herself portrayed a character who suffered at the hands of abusive and controlling men: most famously in her role as the ageing southern belle Blanche in <a href="https://www.imdb.com/title/tt0044081/">A Streetcar Named Desire</a>.</p>
<h2>Actress or Activist?</h2>
<p>But what would Leigh have made of #MeToo? After all, she was no stranger to a protest. She led a rally through London in July 1957 campaigning against theatre closures while sporting a distinctive eye-patch (the result of <a href="https://www.theguardian.com/books/2001/oct/07/biography.features1">domestic violence</a> in her own marriage). That same year she loudly <a href="https://www.theguardian.com/theguardian/2010/jul/13/archive-a-cue-for-miss-vivien-leigh">protested</a> in the House of Lords against the demolition of the St James’s Theatre. </p>
<p>Yet her public causes were focused more on the arts and on patriotism than inequality and gender. It’s also important to remember that she essentially stood on the sidelines when others around her stepped forward to address intersectional inequality, where people encountered discrimination because of gender and race, for instance, in the industry within which she prospered. </p>
<p>When African-American actress Hattie McDaniel was barred from the 1940 Academy Awards ceremony, it was co-star <a href="https://theweek.com/articles/539316/remembering-hattie-mcdaniel-75-years-since-historic-oscar-win">Clark Gable</a>, not Leigh, who threatened to boycott unless she was allowed to attend.</p>
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<figcaption><span class="caption">Vivien Leigh accepts her Oscar in 1940.</span></figcaption>
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<h2>Age and (in)visibility</h2>
<p>Leigh rarely commented on the gendered nature of her experiences despite her high profile status in Hollywood. The restrictions she experienced as a female star became more pronounced as she aged, however. </p>
<p>Though she died in 1967, aged just 53, she had been struggling to gain any significant roles for more than a decade. Like many other actresses of her era, she was a victim of the extreme fetishisation of youthfulness and sex appeal that has only recently begun to shift in Hollywood. </p>
<p>Leigh made 19 films in total, but only three after she turned 40. Her struggle to find meaningful roles as she aged now seems a stark contrast with the thriving careers of other A-List female Oscar winners post-#MeToo. Stars such as <a href="https://www.tandfonline.com/doi/full/10.1080/19392397.2022.2157296">Kate Winslet</a>, as my recent research has shown, are enjoying access to a wide range of roles as they enter middle age. </p>
<p>Reframing the careers of classical stars like Leigh through the lens of #MeToo reminds us that the movement isn’t just about <a href="https://www.bbc.co.uk/news/entertainment-arts-41594672">Harvey Weinstein</a>, but about a system of gendered power that has run through the industry from its classical period to the present day. </p>
<p>Were Leigh working today, perhaps she would have reaped some of the benefits of the movement. And what an intriguing body of work she may have produced into her later years.</p><img src="https://counter.theconversation.com/content/209714/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lisa Smithstead received funding for this research from the Arts and Humanities Research Council. </span></em></p>As Hollywood continues to reckon with its past, Vivien Leigh’s story is a reminder of the challenges faced by women, even the most successful ones.Lisa Smithstead, Senior Lecturer in Film Studies, Swansea UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1206192019-07-23T11:02:48Z2019-07-23T11:02:48ZSexual harassment is a real problem in the armed forces – and offences are not being ‘properly recorded’<figure><img src="https://images.theconversation.com/files/285130/original/file-20190722-11343-zpi3he.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>There’s been a 35% rise in Ministry of Defence <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/790324/20190321-Sexual_Offences_Statistics_2018_report-FINAL.pdf">sexual offence investigations</a> over the past two years – with 60% of those in the British Army. These figures, published earlier this year by the UK government, show that 153 investigations were conducted in 2018. Of these, 18 were for historical offences – and the most common form of investigation was for sexual assault, followed by rape.</p>
<p>A recent <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/817838/20190607_Defence_Report_Inappropriate_Behaviours_Final_ZKL.pdf">review</a> also found a “significant number” of military personnel have experienced “bullying, discrimination and harassment” – with women and ethnic minorities more likely to be involved in disputes.</p>
<p>The Wigston review <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/817838/20190607_Defence_Report_Inappropriate_Behaviours_Final_ZKL.pdf">by air Chief marshal Wigston</a>, which was published in July 2019, investigated inappropriate behaviour in the UK’s armed forces. The review also highlighted a woeful lack of data on sexual offences within the military. And that the data that is available indicates there is a significant problem. <a href="https://www.bbc.co.uk/news/uk-48993201">According to the human rights group</a> Liberty, the Ministry of Defence is not recording allegations “properly or accurately”.</p>
<p>Indeed, after the <a href="https://metoomvmt.org/">#MeToo</a> campaign, the 2018 <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/736177/20180821_Sexual_harassment_report_2018_OS.PDF">Army Sexual Harassment report</a> found that 73% of women questioned reported inappropriate and unwelcome comments and that 20% had experienced inappropriate sexual touching. It also found that 8% of women had been involved in a serious sexual assault and 3% reported being raped. Only 10% of these women made a formal complaint – and of those complaining 70% said they were dissatisfied with the outcome.</p>
<p>The Wigston review makes it clear that the few who persist in orchestrating inappropriate behaviour have no place in the armed forces. And to meet this challenge the report makes <a href="https://www.gov.uk/government/publications/wigston-review-into-inappropriate-behaviours">36 recommendations</a>. These are focused towards prevention, improved training and better support for those affected by incidents of inappropriate behaviour. </p>
<p>As someone who has served in the army, looking at the 36 recommendations gives me some optimism. But while I applaud a zero tolerance approach to this, it must be questioned why previous policies and training have failed to erase this blight on the British armed forces.</p>
<h2>Not properly recorded</h2>
<p>The Wigston review came about because of a series of allegations of inappropriate behaviour by members of the British armed forces. One allegation involved a <a href="https://www.independent.co.uk/news/uk/crime/army-sexual-assault-soldiers-arrest-attack-mod-military-a8857571.html">17-year-old female soldier</a> and a group of six male soldiers. </p>
<p>When the Wigston inquiry was commissioned in April 2019 by the then secretary of state for defence <a href="https://hansard.parliament.uk/commons/2019-04-10/debates/19041011000007/ArmedForcesStandardsAndValues">Gavin Williamson</a>, the primary focus of the review was clear, sexual misconduct in any form was not to be tolerated in the armed forces. Williamson said that more needed to be done to prevent inappropriate behaviour – with <a href="https://www.bbc.co.uk/news/uk-48993201">better support</a> for those affected. </p>
<p>The 2018 House of Commons <a href="https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/725.pdf">Fifth report</a> into sexual harassment in the workplace mirrored some of the findings from the Wigston report. It also highlighted that there is no clear understanding of the extent of the problem, due to no single way of collecting data. The report also said that employers must do more to protect their workers and provide better training for their staff.</p>
<h2>Scale of the problem</h2>
<p>High profile campaigns such as #MeToo and <a href="https://www.timesupnow.com/">Time’s Up</a>, have placed a spotlight on sexual abuse in the workplace. So it’s not surprising that the second largest employer in the UK – the British armed forces – is also under scrutiny. </p>
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<span class="caption">The Wigston report found that service personnel kept quiet about bullying and other abuses for career reasons.</span>
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<p>Sexual misconduct is not a new problem within the military. The Ministry of Defence has collected data since 2006, as part of their agreement with the Equality and Human Rights Commission. While data collection alone does not alter behaviour, all members of the armed forces also undertake service level equality and diversity training, which covers sexual harassment and abuse. </p>
<p>Yet after 20 years of education, hard-hitting campaigns and <a href="https://www.independent.co.uk/news/uk/crime/mod-anti-rape-campaign-launched-with-shocking-posters-of-army-sex-attacks-10413865.html">an anti-rape focus</a> inappropriate behaviour continues. </p>
<h2>Tackling the issue</h2>
<p>But of course, the military ultimately reflects wider society: that’s where the armed forces recruits from and once military service ends, ex-service personnel then rejoin that same society. So while it’s clear the UK armed forces has its own specific problems surrounding rape and sexual harassment, this is of course a much wider issue.</p>
<p>Indeed, a BBC survey found <a href="https://www.bbc.co.uk/news/uk-41741615">half of women</a> in the UK workplace had been sexually harassed. <a href="https://www.crimesurvey.co.uk/en/index.html">The Crime Survey for England and Wales</a> estimates that 20% of women and 4% of men have experienced some type of sexual assault since the age of 16. This is equivalent to <a href="https://rapecrisis.org.uk/get-informed/about-sexual-violence/statistics-sexual-violence/">3.4m female and 631,000 male victims</a>.</p>
<p>Perhaps then the fact that there has been a rise in sexual assault and rape investigations from the Ministry of Defence – including historic cases – is a good sign, as it shows more people feel able to speak out on this difficult issue.</p>
<p>This is important because for things to change, everyone in the armed forces must play their part in prevention and helping to change the culture. Perhaps this is where one of the Wigston report <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/817838/20190607_Defence_Report_Inappropriate_Behaviours_Final_ZKL.pdf">recommendations</a> – that being a passive bystander is not acceptable – will really help to make a difference.</p><img src="https://counter.theconversation.com/content/120619/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christina Dodds is a member of the Royal British Legion and is a member of the Queen Alexandra Royal Army Nursing Corps Association.</span></em></p>There’s a woeful lack of data on sexual offences within the military. And the data that is available indicates there is a significant problem.Christina Dodds, Graduate Tutor, Social Work, Northumbria University, NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1056392019-03-07T22:02:06Z2019-03-07T22:02:06ZWhat is intersectionality? All of who I am<figure><img src="https://images.theconversation.com/files/262470/original/file-20190306-100787-esn6h2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">These women used the word intersectionality to indicate solidarity across race and class. Back row: Activist Tarana Burke, Michelle Williams, America Ferrera, Jessica Chastain, Amy Poehler, Meryl Streep, and Kerry Washington; front row: Natalie Portman, activist Ai-jen Poo, and activist Saru Jayaraman.
</span> <span class="attribution"><span class="source">Golden Globes</span></span></figcaption></figure><blockquote>
<p>“There is no such thing as a single-issue struggle because we do not live single-issue lives.”
― <a href="https://www.blackpast.org/african-american-history/1982-audre-lorde-learning-60s/">Audre Lorde (<em>Sister Outsider</em>)</a></p>
</blockquote>
<p>Last year at the Golden Globes, many Hollywood actors got on stage in an act of unity for #TimesUp and #MeToo. Together they wore black and, in an attempt to bring together a diverse range of women, <a href="https://www.npr.org/2018/01/08/575431149/activism-hits-the-red-carpet-and-oprah-hits-a-home-run-at-the-golden-globes">used the word “intersectionality</a>.”</p>
<p>The Hollywood starlets were reflecting a current conversation within progressive and not-for-profit circles. Intersectionality has been recently used within academic fields such as <a href="https://pdfs.semanticscholar.org/45e9/502eb6d9c792444ba6543d6ac5293b65dd1a.pdf">psychology</a>, <a href="http://www.ohrc.on.ca/en/intersectional-approach-discrimination-addressing-multiple-grounds-human-rights-claims/move-towards-intersectional-approach">human rights</a> and <a href="http://www.faculty.umb.edu/heike.schotten/readings/Smooth,%20Intersectionality%20in%20Electoral%20Politics.pdf">political science</a>. </p>
<p>My field — anti-racist, anti-oppression/colonial-centred health equity —relies heavily on the idea of intersectionality. As a concept, the term can help communicate complex realities. </p>
<h2>What exactly is intersectionality?</h2>
<p>Kimberle Crenshaw, legal scholar and critical race theorist, is <a href="https://www.ted.com/speakers/kimberle_crenshaw">generally credited with originating the term in the late 1980s</a>. </p>
<p>Some activists and scholars, however, trace the earliest articulations of intersectionality back to the ’70s in the manifesto by the Combahee River Collective, a collective of Black (lesbian-identified) feminists who, in 1977, said: </p>
<blockquote>
<p><a href="https://americanstudies.yale.edu/sites/default/files/files/Keyword%20Coalition_Readings.pdf">“We … find it difficult to separate race from class from sex oppression because in our lives they are most often experienced simultaneously.”</a></p>
</blockquote>
<p>To understand intersectionality and how to apply it, I believe it is essential to understand four concepts:</p>
<h2>1. All of who I am: Factors of identity</h2>
<p>Intersectionality embraces the idea of “all of who I am.” </p>
<p>One of the main critical concepts is “location:” To locate oneself politically and socially means to identify specific factors about your identity. These factors include: race, indigeneity, socioeconomic status, gender, gender identity, sexual orientation, age, (dis)ability, spirituality, immigration/refugee status, language, and education.</p>
<p>One of the ideas of intersectionality is for individuals, groups and communities to self-identify. This allows people to choose what they share about themselves. </p>
<p>For example, I locate myself within the African diaspora, as a woman who has survived African enslavement, a feminist from a working-class background, daughter of Caribbean immigrants, mother, living with a visual disability in Turtle Island (Canada). I also locate myself as a researcher, educator, therapist and community organizer.</p>
<p>Another factor of location is to identify <a href="https://www.womanaroundtown.com/sections/living-around/toxic-culture-unearned-privilege/">power and unearned privilege</a>. Dependent on one’s location(s), one may have power and privilege over others. </p>
<p>For instance, white men have more power and unearned privilege than white women based on systemic oppression supported by patriarchy, sexism and misogyny. Based on anti-Black racism, Black men have less power and unearned privilege than white men, but because of sexism, they have more unearned privilege than Black women. </p>
<p>Even though they experience sexism, white women have more power and unearned privilege than Black women due to anti-Black racism.</p>
<p>If you want to be an ally and support emancipatory changes, it is important to reflect on your location.</p>
<p>Allies are folks who actively support individuals and communities experiencing multiple forms of oppression; they share and give up their power to help make changes in the lives of the disempowered. However, it is important to note: an ally-centred person dependant on time, place and their location can also experience disempowerment. </p>
<h2>2. Oppressions</h2>
<p>What is oppression?</p>
<p>Oppression is ways of knowing and doing by those with power and authority as individuals, in governments and cultural institutions that create marginalization and subjugation of those who do not have institutional authority or power — often African/Black, Indigenous and racialized folks. </p>
<p>We need to understand systemic forms of disempowerment and brutality so we can actively create room for an intersectional analysis.</p>
<h2>3. Violence</h2>
<p>An intersectional analysis has to connect the human experiences of violence, historically and currently. </p>
<p>Violence includes the exercise of power to oppress and discriminate against communities individually and collectively. Violence is any abuse of power (public, private, and/or structural) that inflicts harm. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/262494/original/file-20190306-100793-152ali9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/262494/original/file-20190306-100793-152ali9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/262494/original/file-20190306-100793-152ali9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/262494/original/file-20190306-100793-152ali9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/262494/original/file-20190306-100793-152ali9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/262494/original/file-20190306-100793-152ali9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/262494/original/file-20190306-100793-152ali9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">People holding up a ‘Black Lives Matter’ poster during a rally to speak about the plurality of violence and anti-Black racism in Toronto, Canada, on September 27, 2015. - Image.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>Violence includes physical, sexual, and psychological harm including: anti-Black racism, anti-indiegenity, classism, sexism, homophobia, transphobia and ableism. </p>
<p>Violence by police in Black communities is an example of public and private, race-gender-class based violence. The result is physical, psychological and financial violence against Black men, women, children and our families. </p>
<h2>4. Resistance</h2>
<p>Actualizing resistance is critical to intersectionality. Resistance is the struggle to survive, exist, persist and fight to eradicate ideologies and practices of colonialism, anti-Black racism, and all other forms of intersectional violence in the lives of Black, Indigenous and racialized folks and our communities.</p>
<h2>A brief genealogy of intersectionality</h2>
<p>In the ’80s, many scholars elaborated on the <a href="https://www.racialequitytools.org/resourcefiles/mapping-margins.pdf">limitations of the isolation of categories such as race, class and gender as the primary category of identity, difference or oppression and their legal implications for Black communities</a>. </p>
<p>Feminist scholar Moya Bailey at Northeastern University has coined the term <a href="https://www.tandfonline.com/doi/full/10.1080/14680777.2018.1447395?scroll=top&needAccess=true">“misogynoir”</a> over the past decade on social media: it is used to describe the intersection of sexism and racism. But many before Bailey spoke of similar issues. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/262716/original/file-20190307-82688-1je325o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/262716/original/file-20190307-82688-1je325o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=999&fit=crop&dpr=1 600w, https://images.theconversation.com/files/262716/original/file-20190307-82688-1je325o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=999&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/262716/original/file-20190307-82688-1je325o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=999&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/262716/original/file-20190307-82688-1je325o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1256&fit=crop&dpr=1 754w, https://images.theconversation.com/files/262716/original/file-20190307-82688-1je325o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1256&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/262716/original/file-20190307-82688-1je325o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1256&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Sojourner Truth (1797-1883) African American and lifelong activist for abolition of slavery and civil rights for freed slaves and women, ca.1864.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>Many Black women in the 1800s and 1900s were discussing how racism and sexism intersect to create a racialized noir misogyny. In 1851, Sojourner Truth, a former enslaved Black woman, <a href="https://www.bhamcityschools.org/cms/lib/AL01001646/Centricity/Domain/5481/English%20Language%20Arts%20Grade%2010%20Curriculum%20Guide/Week%201-%20English%2010%20Resource.pdf">talked in her now famous speech “Ain’t I a woman” about the complexities and violence that Black, enslaved and poor women experienced living in America</a>. </p>
<p>Other women who made these connections during that time period include: Mary Church Terrell, Nannie Burroughs, Fannie Barrier Williams, <a href="https://broadly.vice.com/en_us/article/xw7xnk/anna-julia-cooper-intersectionality-black-feminist">Anna Julia Cooper</a>, <a href="https://www.womenshistory.org/education-resources/biographies/ida-b-wells-barnett">Ida B. Wells</a> and <a href="https://www.biography.com/people/harriet-tubman-9511430">Harriet Tubman</a>.</p>
<p>More recently, Black women who have influenced our knowledge base on intersectionality include: <a href="https://www.smithsonianmag.com/smithsonian-institution/unbought-and-unbossed-when-black-woman-ran-for-the-white-house-180958699/">Shirley Chisholm,</a>
<a href="https://legalform.files.wordpress.com/2017/08/davis-women-race-class.pdf">Angela Davis</a>, <a href="http://www.bellhooksinstitute.com/">bell hooks</a>, <a href="https://www.womenshistory.org/education-resources/biographies/fannie-lou-hamer">Fannie Lou Hamer</a>, <a href="https://www.historyisaweapon.com/defcon1/shakurwip.html">Assata Shakur</a>, <a href="https://www.feministpress.org/authors/june-jordan">June Jordan</a>, <a href="https://alp.org/about/audre">Audre Lorde</a>, <a href="https://uk.sagepub.com/sites/default/files/upm-binaries/13299_Chapter_16_Web_Byte_Patricia_Hill_Collins.pdf">Patrica Hill-Collins</a>, <a href="https://canadianimmigrant.ca/news/racism-activist-viola-desmond-and-canadian-museum-for-human-rights-on-new-10-bill">Viola Desmond</a>, <a href="https://africana.cornell.edu/carole-boyce-davies">Carol Boyce-Davies</a>, <a href="https://www.britannica.com/biography/Ama-Ata-Aidoo">Ama Ata Aidoo</a>, <a href="https://www.uoguelph.ca/arts/sets/people/dionne-brand">Dionne Brand</a>, <a href="https://culturalstudies.ucdavis.edu/people/amina-mama">Amina Mama</a> and <a href="http://canpoetry.library.utoronto.ca/cooper/">Afua Cooper</a>.</p>
<p>Transnationally, many nameless Black women in our communities and professional spaces spoke about the intersections of their lives as women, as Black, as poor. Their experiences stem directly from shared histories of colonialism, enslavement, industrialization and democratization on the backs of African and Indigenous peoples.</p>
<p>Different phrases were used to describe their conditions. But their words and actions mobilized Black, Indigenous and racialized women globally to examine how race, gender and class simultaneously impact our lives and how we resist.</p><img src="https://counter.theconversation.com/content/105639/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Roberta K. Timothy does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Last year, the word ‘intersectionality’ hit the mainstream at the Golden Globes as actors attempted to raise awareness for #MeToo and #TimesUp. But what exactly does intersectionality mean?Roberta K. Timothy, Assistant Professor, Global Health, Ethics and Human Rights School of Health, York University, CanadaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/960432018-07-17T11:36:11Z2018-07-17T11:36:11ZGoing viral: what social media activists need to know<figure><img src="https://images.theconversation.com/files/227414/original/file-20180712-27039-rcq2a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sign displaying the #metoo and #timesup message at the Women's March in San Francisco in January, 2018.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/january-20-2018-san-francisco-ca-1007583703?src=MDfcEqZAsapSH186CCu_Rg-1-3">Shutterstock/SundryPhotography</a></span></figcaption></figure><p>Inspiring stories of social activism, such as the <a href="https://theconversation.com/uk/topics/civil-rights-11321">Civil Rights movement</a> and the <a href="https://www.huffingtonpost.com/entry/the-fight-for-climate-change-is-a-civil-rights-fight_us_58de5ef6e4b0fa4c0959884c">fight against climate change</a>, abound in history. And it is generally thought that the new social media era has <a href="https://www.theguardian.com/world/2011/feb/25/twitter-facebook-uprisings-arab-libya">helped cases of activism</a> to succeed. But <a href="https://www.sciencedirect.com/science/article/pii/S1471772714000426">our research</a> has revealed some major threats, which activists need to understand if they are to be successful in getting their message across to the masses.</p>
<p>Social activism refers to a broad range of activities which are beneficial to society or particular interest groups. Social activists operate in groups to voice, educate and agitate for change, targeting global crises. </p>
<p>Take, for example, environmental groups such as <a href="https://www.greenpeace.org.uk/what-we-do/climate/">Greenpeace</a> which aim to curb climate change by targeting governments and major manufacturers with poor environmental records. Or the <a href="https://en.wikipedia.org/wiki/Anti-sweatshop_movement">anti-sweatshop movement</a>, which started with a group of activists in the 19th century organising boycotts aimed at improving the conditions of workers in manufacturing places with low wages, poor working conditions and child labour.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1017309641363976192"}"></div></p>
<h2>Online social activism</h2>
<p>These days the voices of dissent have increasingly been carried via the evolving medium of the internet. From <a href="http://www.chicagotribune.com/voiceit/ct-hoy-from-metoo-to-timesup-how-undocumented-women-fit-in-the-women-s-movement-20180424-story.html">#Metoo, #TimesUp and #WeStrike</a> to <a href="http://www.bbc.co.uk/news/blogs-trending-43541179">#NeverAgain</a> and <a href="https://en.wikipedia.org/wiki/Black_Lives_Matter">#BlackLivesMatter</a>, social activists wield the power of the internet to pressure powerful organisations.</p>
<p>The group <a href="https://350.org/about/">350.org</a>, for example, is made up of climate change activists. The group uses online campaigns and grassroots organising to oppose new coal, oil and gas projects. Its aim is to get society moving closer to clean energy solutions that work for all.</p>
<p>Online activism allows activists to organise events with high levels of engagement, focus and network strength. On the one hand, <a href="https://cas.uab.edu/humanrights/2016/12/07/age-online-activism/">researchers</a> suggest that the anonymity offered by online communication provides the possibility of expressing the views of marginalised minority groups that might otherwise be punished or sanctioned. Online activities reinforce collective identity by reducing attention to differences that exist within the group (such as education, social class, and ethnicity).</p>
<h2>The online threats</h2>
<p>But <a href="https://www.amazon.co.uk/Save-Everything-Click-Here-Technological/dp/1610393708">other research</a> argues that while this modern form of activism may increase participation in online activities, it might merely create the <a href="https://www.theguardian.com/media-network/media-network-blog/2014/mar/14/online-activism-social-media-engage">impression of activism</a>. Or it may even have negative consequences, such as creating social <a href="https://onlinelibrary.wiley.com/doi/abs/10.1002/ejsp.1983">stereotypes</a> including those about feminists and environmentalists or <a href="http://www.bbc.co.uk/news/world-middle-east-20768205">getting social activists arrested</a> as is the case in authoritarian countries.</p>
<p>The aim of our research was to develop insights that would obtain better outcomes from online activism, targeting some of society’s most important issues. During our study, we collected data from three YouTube cases of online activism. Our findings suggest that online activism delivers a temporary shock to the organisational elites, help organise collective actions and amplify the conditions for movements to form. </p>
<h2>The elites fight back</h2>
<p>But these initial outcomes provoke the elites into action, resulting in counter measures – such as increased surveillance to track activists. For example, some governmental authorities intensified internet filtering, blocked access to several websites and decreased the speed of the internet connection to slow down social activism. These measures prompted self-censorship among activists and a loss of interest among the public in relation to the cause and contributed to the ultimate decline of social activism over time. </p>
<p>Our study challenged the <a href="https://theconversation.com/slacktivism-that-works-small-changes-matter-69271">optimistic hype</a> around online activism in enabling grassroots social movements by suggesting there is a complex relationship between activists and those groups they are targeting, which makes the outcomes very difficult to predict. As different parties with different interests intervene, they either encourage or inhibit activism. </p>
<p>While <a href="https://theconversation.com/why-metoo-is-an-impoverished-form-of-feminist-activism-unlikely-to-spark-social-change-86455">encouraging actions</a> can take the form of support (such as the thousands of women around the world who posted on social media sharing their stories under #metoo), <a href="https://theconversation.com/why-metoo-is-an-impoverished-form-of-feminist-activism-unlikely-to-spark-social-change-86455">inhibiting actions</a> may come in the form of <a href="https://en.wikipedia.org/wiki/Information_asymmetry">information asymmetry</a> (strategies such as filtering and surveillance) from elites.</p>
<p>Inhibiting strategies are not limited to authoritarian organisations. Senior managers may also monitor email correspondence of staff, set up structures and hierarchies for access to organisational information, and use information provided by secretive companies to check the status of their employees (for example, <a href="https://www.theguardian.com/uk/2009/mar/16/blacklisted-workers-hotline">blacklisting workers perceived as trouble-makers</a>). </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"905119017207308288"}"></div></p>
<h2>Less emotion and more strategic patience</h2>
<p>Online activists should understand that the dynamics of reaching collective action might not necessarily be the result of critical thinking, lifelong learning or other dimensions of civic engagement. Journalist Nicholas Kristoff <a href="https://archive.nytimes.com/www.nytimes.com/library/magazine/home/20000924mag-sweatshops.html">has talked about</a> how the anti-sweatshop movement “risks harming the impoverished workers it is hoping to help” by causing mass job redundancies. Similarly, our main message is that online activism could prompt reactions that will result in unintended and long lasting consequences for the activists involved.</p>
<p>A common and frequently used approach that risks these types of consequences is to share emotive information through social media. While this is used to inform and capture people’s attention and mobilise as many people as possible, our study suggests that more thought should be put into the consequences of information sharing and what information is most appropriate to be shared.</p>
<p>Activists may need to spend more time and energy to create and share information that is less emotive and help people learn about the underlying causes of problem. For example, the activism videos we have researched and commonly see on the internet are essentially reactive and emotive.</p>
<p>Instead of focusing on the problem and the need for change, activists can share information that explains why and how the current situation has been created and what can be learned for the future. Online activism in such manner can gradually lead to the development of people who are capable of <a href="http://www.systems-thinking.org/dikw/dikw.htm">generating new knowledge and wisdom</a> to respond to changing social environments. However, that requires strategic patience and that is often a scarce resource among activists desperate for change.</p><img src="https://counter.theconversation.com/content/96043/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shahla Ghobadi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Social media is a great tool for activists campaigning for social justice. But if it is not used with caution it can end up working against them.Shahla Ghobadi, Assistant Professor, Software, Design, Social Activism, University of ManchesterLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/956172018-05-04T11:36:45Z2018-05-04T11:36:45ZAn international legal response to #MeToo, rape and sexual abuse is needed<figure><img src="https://images.theconversation.com/files/217737/original/file-20180504-166893-w6ciyf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Thousands in Pamplona protest against rape sentence.</span> <span class="attribution"><a class="source" href="http://www.epa.eu/politics-photos/juicios-punishment-citizens-initiative-recall-photos/thousands-in-pamplona-protest-against-rape-sentence-photos-54295341">Villar Lopez/EPA</a></span></figcaption></figure><p>Rape and other forms of sexual abuse are a worldwide epidemic. The <a href="http://www.who.int/en/news-room/fact-sheets/detail/violence-against-women">World Health Organisation (WHO)</a> estimates that 35% of women worldwide have experienced physical or sexual intimate partner violence or non-partner sexual violence. And according to <a href="http://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures">UNICEF</a>, around 120m girls worldwide have experienced “forced intercourse or other forced sexual acts” at some point in their lives.</p>
<p>Over the past year, there has been mass mobilisation against these forms of abuse. From <a href="https://metoomvmt.org/">#MeToo</a> and <a href="https://www.timesupnow.com/">#TimesUp</a> in Hollywood, to <a href="https://www.irishexaminer.com/breakingnews/ireland/ibelieveher-rallies-taking-place-nationwide-in-aftermath-of-belfast-rape-trial-834804.html">#IBelieveHer</a> in Northern Ireland and <a href="https://www.thelocal.es/20180430/cuentalo-spanish-women-launch-their-own-metoo-movement">#Cuéntalo</a> in Spain, women around the world are sharing their stories on social media, organising protests and expressing their frustration with the criminal justice systems of their respective jurisdictions.</p>
<p>Yet despite this increased attention, laws around the world continue to fail victims of rape and sexual abuse. It is time this, too, changed.</p>
<h2>Inadequate laws</h2>
<p>A 2017 report by <a href="https://www.equalitynow.org/sites/default/files/EqualityNowRapeLawReport2017_Single%20Pages.pdf">Equality Now</a> reviewed the laws on sexual violence of 82 jurisdictions around the world. While rape has been understood as a crime against an individual’s sexual autonomy since 2003 in the <a href="https://www.coe.int/t/dg2/equality/domesticviolencecampaign/resources/M.C.v.BULGARIA_en.asp">international human rights arena</a>, the report found that it continues to be based on patriarchal ideals in many countries.</p>
<p>For example, rape is treated as a moral crime in 15 jurisdictions, including Afghanistan, Belgium and China, and marital rape is not punished in 10 of the jurisdictions surveyed, including India, Indonesia and Jordan. The perpetrator can also escape punishment if he marries the victim in nine jurisdictions, such as Bahrain, Iraq and Jordan, or if he reaches a settlement with the family in 12 jurisdictions, including Belgium, Croatia and Iraq.</p>
<p>Provisions such as these demonstrate a deep misunderstanding of the harm of rape. They locate it in outdated perceptions of women based on their value as the <a href="https://global.oup.com/academic/product/the-victimization-of-women-9780199765119?cc=us&lang=en&">property of men</a>. </p>
<p>Further to this, the report noted burdensome corroboration laws in countries such as Peru and Yemen requiring, for example, a medical examiner’s report before the burden of proof can be discharged. This requirement suggests a distrust of women and is reminiscent of <a href="http://eprints.uwe.ac.uk/6478/1/Download.pdf">Sir Matthew Hale’s</a> problematic 17th-century opinion that rape “is an accusation easily to be made and hard to be proved”.</p>
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<h2>Consent</h2>
<p>Impoverished understandings of rape and sexual abuse are linked to concerns over the role of consent versus a focus on force in defining these crimes.</p>
<p>This is a particularly <a href="http://www.julietdavis.com/oldsite/WST383/rape.pdf">contested</a> aspect of rape law that is complicated by the existence of myths and stereotypes surrounding what amounts to “<a href="http://www.hup.harvard.edu/catalog.php?isbn=9780674749443">real rape</a>”, often perceived as the young virginal women attacked and overpowered by a stranger.</p>
<p>In 2016, for example, the German justice minister <a href="https://www.equalitynow.org/sites/default/files/EqualityNowRapeLawReport2017_Single%20Pages.pdf">Heiko Maas</a> criticised the then definition of rape, which required that the act take place by force, among other exploitative factors. Maas asked: “Does a woman need to be killed or severely beaten to prove she did not consent to rape?”</p>
<p>Similar concerns have been raised in 2018 due to the <a href="https://www.theguardian.com/world/2018/apr/26/protests-spain-five-men-cleared-of-teenagers-gang-rape-pamplona">failure</a> in April of a Spanish court to convict five men of raping a young woman. The court instead found them guilty of the lesser crime of sexual abuse, as the latter does not require proof of violence or intimidation.</p>
<h2>The international position</h2>
<p>According to international human rights law, domestic states are required to prosecute any non-consensual sexual act.</p>
<p>In 2003, for example, the European Court of Human Rights surveyed <a href="https://www.coe.int/t/dg2/equality/domesticviolencecampaign/resources/M.C.v.BULGARIA_en.asp">international and domestic law on rape</a>, noting a “universal trend towards regarding lack of consent as the essential element of rape and sexual abuse” and criticising any “rigid approach” to the crime that requires proof of force or resistance.</p>
<p>In 2010 the <a href="https://projects.iq.harvard.edu/violenceagainstwomen/publications/vertido-v-philippines">Committee on the Elimination of Discrimination Against Women</a> reinforced this position. It explained that rape should be defined by either requiring the existence of “unequivocal and voluntary agreement” or requiring that the act take place in “coercive circumstances”.</p>
<p>The <a href="https://rm.coe.int/16800d383a">commentary attached</a> to the 2011 <a href="https://www.coe.int/en/web/istanbul-convention/home?desktop=false">Istanbul Convention</a>, the Council of Europe’s convention against violence against women and domestic violence, further clarifies the position. International law now requires that where a definition of rape does not explicitly mention consent, the definition must interpreted as including the notion of a lack of freely given consent.</p>
<p>But the difficulty with this, as evidenced in Spain, is that narrow interpretations of what constitutes force continue to hinder the application of definitions of rape based on violence or force.</p>
<h2>Keeping consent central</h2>
<p><a href="http://www.stopvaw.org/consent_force_and_coercion">Many argue</a> that it is therefore more desirable to define rape in terms of consent instead of in terms of force or coercion. This is not to say the consent threshold is perfect. Indeed, definitions centred on consent often require proof that the <a href="http://journals.sagepub.com/doi/abs/10.1177/0964663916647442">perpetrator did not reasonably believe</a> the victim consented – such as in the United Kingdom, New Zealand and Australia. What amounts to reasonable belief is a <a href="https://www.tandfonline.com/doi/abs/10.1080/13552600.2014.900122">contested</a> issue and often invites scrutiny of the victim’s behaviour, as opposed to focusing on the perpetrator. </p>
<p>For instance, although resistance is not required to demonstrate lack of consent, this is a <a href="http://opus.bath.ac.uk/53324/1/Smith_and_Skinner_How_rape_myths_are_used_at_trial.pdf">common defence strategy</a> used to undermine the complainant’s account and attach “reasonableness” to the actions of the perpetrator.</p>
<p>But there has been a recent shift in some jurisdictions to what has been described in international human rights law as the “<a href="https://www.coe.int/t/dg2/equality/domesticviolencecampaign/resources/M.C.v.BULGARIA_en.asp">equality approach</a>” to consent. This approach begins by examining not whether the complainant said “no”, but whether they said “yes”.</p>
<p>In this case, reasonable belief in consent cannot be established unless the perpetrator actively sought and obtained positive consent.</p>
<p><a href="http://www.thejournal.ie/iceland-consent-3943673-Apr2018/">Iceland</a> has recently introduced a definition of consent that requires consent to be “expressed”, and similar reforms are expected in <a href="https://www.thelocal.se/20180320/swedish-government-to-push-ahead-with-new-sexual-consent-law">Sweden</a>.</p>
<p>Efforts to formulate a more positive affirmative model of consent will not solve all of the problems associated with the crime. But it might go some way to challenging the “real rape” stereotype as well as the problematic attitudes surrounding what does and does not amount to appropriate behaviour that are at the heart of movements such as #MeToo.</p><img src="https://counter.theconversation.com/content/95617/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eithne Dowds does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Laws around the world continue to fail victims of rape and sexual abuse. It is time this, too, changed.Eithne Dowds, Lecturer in International Criminal Law, Queen's University BelfastLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/957202018-04-27T13:13:40Z2018-04-27T13:13:40ZBill Cosby exposed by the media – but it was women who brought him down<p>So much has happened in three and a half years: several abusive men have been <a href="https://www.glamour.com/gallery/post-weinstein-these-are-the-powerful-men-facing-sexual-harassment-allegations">exposed</a>, the <a href="http://time.com/5189945/whats-the-difference-between-the-metoo-and-times-up-movements/">#MeToo and #TimesUp movements</a> have gone international, <a href="https://edition.cnn.com/2017/01/21/politics/trump-women-march-on-washington/index.html">millions have marched</a>, and now an actual <a href="https://www.reuters.com/article/us-people-cosby/comedian-bill-cosby-convicted-of-sexual-assault-in-retrial-idUSKBN1HX1B7">conviction</a> for a man who appeared impervious to justice – a man protected by <a href="https://www.huffingtonpost.co.uk/entry/cosby-show-executive-producer-bill-cosby_us_55bf60bbe4b06363d5a29b6b">producers</a>, <a href="https://www.bet.com/celebrities/photos/2015/01/celebrities-who-have-stood-by-bill-cosby.html#!010715-celebs-Keshia-Knight-Pulliam">high-profile friends</a>, and <a href="https://www.vice.com/en_us/article/xdw3b4/talking-to-the-people-who-still-defend-bill-cosby-on-the-internet">fans</a>. </p>
<p>So much has happened it is easy to forget the video that circulated on social media of comedian Hannibal Buress calling out Bill Cosby in his <a href="https://www.vox.com/2014/10/21/7028755/hannibal-buress-bill-cosby-rapist">stand-up</a> routine: “Yeah, but you rape women, Bill Cosby, so turn the crazy down a couple notches …” he said in October 2014. Over the years, Buress has criticised Cosby, but it wasn’t until the video of him went viral that things began to change.</p>
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<p>Buress importantly brought attention to Cosby – but he is not the reason for the changing media coverage and ultimately Cosby’s conviction. It’s actually all the brave women who have come forward that have forced the news and entertainment industries to pay attention. </p>
<p>Shortly after the Buress video went viral, actress Barbara Bowman frustratedly asked in <a href="https://www.washingtonpost.com/posteverything/wp/2014/11/13/bill-cosby-raped-me-why-did-it-take-30-years-for-people-to-believe-my-story/?noredirect=on">The Washington Post</a>: “Why did it take 30 years for people to believe my story?”, pointing to the double standards of taking men seriously but not women. Even so, it is what the <a href="https://www.washingtonpost.com/lifestyle/style/two-more-women-allege-assaults-by-bill-cosby-total-now-60/2016/08/07/e8feb1f0-5b1e-11e6-831d-0324760ca856_story.html?noredirect=on&utm_term=.2fad45e6fee4">60-plus women</a> who have come forward against Cosby have faced that has finally forced the public and media outlets to care about the systemic sexual violence perpetrated by some powerful men like him.</p>
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<p>Remember when CNN host <a href="http://www.slate.com/blogs/xx_factor/2014/11/19/don_lemon_to_cosby_rape_accuser_joan_tarshis_why_didn_t_you_just_bite_his.html">Don Lemon</a> asked one Cosby accuser Joan Tarshis why she didn’t just bite Cosby’s penis? Well he doesn’t ask questions like that anymore. Or when Canadian basketball star <a href="http://time.com/3592547/bill-cosby-rape-allegations-timeline/">Andrea Constand</a> originally took Cosby to court in 2005 and no one paid attention? Well the jury certainly paid attention to Costand this time around. Or when supermodel Janice Dickinson went on <a href="https://www.howardstern.com/news/2014/11/19/janice-dickinson-on-bill-cosby-in-2006/">The Howard Stern Show</a> in 2006 and only hinted about Cosby’s behaviour because she was too afraid of being sued to say more? She has now spoken publicly to many news outlets and even <a href="https://edition.cnn.com/2018/04/12/us/janice-dickinson-bill-cosby-five-takeaways/index.html">testified</a> in this last fateful trial. </p>
<p>But even with the improvements, news media still need to do better when it comes to interviewing and profiling women who come forward. <a href="http://journals.sagepub.com/doi/abs/10.1177/1077801209333611">Rape culture</a> that is so common in societies, still plays out in <a href="http://journals.sagepub.com/doi/abs/10.1177/1461444815612407">news coverage</a>. Specifically, women who come forward are doubted and disparaged. And powerful people who question, insult, and dismiss accusers coming forward are given ample attention in the coverage. </p>
<p>When the Access Hollywood tape was released, featuring <a href="https://www.tandfonline.com/doi/abs/10.1080/1461670X.2017.1360150">Donald Trump</a>’s unsavoury comments about grabbing women by the pussy, Trump was given carte blanche to call the women coming forward to accuse him of harassment <a href="https://www.tandfonline.com/doi/abs/10.1080/14680777.2017.1304714">liars and ugly and threaten to sue them</a>. The <a href="https://www.theguardian.com/us-news/2016/oct/13/list-of-donald-trump-sexual-misconduct-allegations">women</a> who accused Trump on the other hand, have always been given minimal exposure. Actor Daman Wayans famously stated that some of the women accusing Cosby were “<a href="https://www.hollywoodreporter.com/node/820777">un-rape-able</a>”. Trump, of course, subsequently won the 2016 presidential election.</p>
<p>Meanwhile Fox presenter <a href="https://www.independent.co.uk/arts-entertainment/tv/news/bill-oreilly-fired-fox-news-statement-confirmation-a7691926.html">Bill O’Reilly</a>, sacked from Fox News amid allegations of sexual harassment – said for years that he was <a href="http://www.newsweek.com/bill-oreilly-target-suits-13-million-harassment-payouts-577817">merely a target for opportunistic women</a>, with little push back. The examples go on.</p>
<h2>Proving credible</h2>
<p>Consequently, when interviewed, accusers/survivors are often forced to “prove” themselves rather than just tell their story. Or worse, are asked – Like Lemon did to Tarshis – why didn’t they just prevent this from happening? They have to justify their previous actions and even their character traits, which <a href="https://rainn.org/statistics">research</a> shows does not determine whether or not a woman is assaulted. </p>
<p>When the Cosby story broke three and a half years ago, former co-star <a href="https://www.vox.com/2015/1/8/7513119/phylicia-rashad-cosby-rape">Phylicia Rashad notably said</a> “… this was not about the women. This is about something else. This is about the obliteration of legacy”. <a href="http://www.nydailynews.com/entertainment/jerry-seinfeld-bill-cosby-biggest-comedian-time-article-1.3455612">Jerry Seinfeld</a> said something similar about the value of Cosby’s body of work – although to be fair he later <a href="https://www.huffingtonpost.co.uk/entry/jerry-seinfeld-stephen-colbert-bill-cosby_us_59cfce15e4b05f005d348917">went back on those comments</a>. </p>
<p>But in the end, the women in this case finally (and rightfully) made it about them. News coverage reflected this – even if they were 30 years late. Moving forward the biggest challenge will be making this the norm and not just the exception. </p>
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Read more:
<a href="https://theconversation.com/it-takes-guts-and-hard-work-to-expose-a-scandal-like-that-of-harvey-weinstein-but-its-just-the-start-85629">It takes guts and hard work to expose a scandal like that of Harvey Weinstein – but it's just the start</a>
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<p>News coverage of the #MeToo movement that began in the wake of <a href="https://theconversation.com/it-takes-guts-and-hard-work-to-expose-a-scandal-like-that-of-harvey-weinstein-but-its-just-the-start-85629">Harvey Weinstein’s</a> demise, has often played devil’s advocate, asking (and sometimes emphatically stating) it has <a href="https://nypost.com/2018/02/10/when-the-metoo-movement-goes-too-far/">gone too far</a>. This is without considering the <a href="http://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures">international systemic problem</a> of physical and sexual violence against women. Or the relatively short time the movement has existed as opposed to centuries of <a href="https://www.weforum.org/reports/the-global-gender-gap-report-2017">gender inequality</a>. More context is needed when we read the news. </p>
<p>Also, more attention must be paid to surviving sexual abuse and misconduct, rather than the triumphant comeback stories that are now in the works for accused harassers, such as the disgraced CBS anchor <a href="https://www.vanityfair.com/hollywood/2018/04/charlie-rose-tv-series-me-too-scandal-matt-lauer-louis-ck-tina-brown">Charlie Rose</a> and former Today host <a href="https://www.thecut.com/2018/04/comeback-men-sexual-harassment-me-too.html">Matt Lauer</a>. </p>
<p>While recent news coverage has finally embraced reporting on sexual abuse allegations, there is still far to go before the issue itself and the problematic way we discuss all forms of violence against women is eradicated. Luckily, this didn’t deter the brave women who helped bring Cosby to justice.</p><img src="https://counter.theconversation.com/content/95720/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lindsey Blumell has received a small one time grant from City, University of London for her research. </span></em></p>The women who overcame heavy opposition to fight for justice in the Cosby rape case.Lindsey Blumell, Lecturer in Journalism, City, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/929682018-03-08T15:10:51Z2018-03-08T15:10:51ZVictims are more willing to report rape, so why are conviction rates still woeful?<figure><img src="https://images.theconversation.com/files/209325/original/file-20180307-146700-atfinc.jpg?ixlib=rb-1.1.0&rect=1%2C2%2C956%2C528&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">'I find the accused ...'</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/person-handcuffed-387312148?src=xPOgOTPkgfuVliMCo0S81Q-1-2">Torin55</a></span></figcaption></figure><p>In many countries, conviction rates in cases of rape and other sex crimes are very low. According to <a href="https://www.griffith.edu.au/__data/assets/pdf_file/0005/260195/Daly-and-Bouhours-2010-Rape-case-attrition.pdf">one study</a> of the US, Australia, Canada, England, Wales and Scotland, for example, only 7% of cases resulted in a conviction for the original offence charged, and only 13% led to a conviction of any sexual offence. </p>
<p>The number of rapes and attempted rapes reported to the police has generally been <a href="https://www.theguardian.com/society/2016/oct/13/reported-rapes-in-england-and-wales-double-in-five-years">increasing</a> in recent years, a sign that victims feel more confident in coming forward. Yet there has been no corresponding improvement in prosecutions and convictions. As a result, conviction rates have generally decreased, meaning victims have less access to justice.</p>
<p>Scotland, <a href="http://www.gov.scot/Publications/2018/02/7427/0">long known</a> for woeful conviction rates for sex offences, is a good example. At first glance, its <a href="http://www.gov.scot/Publications/2018/02/7427/0">latest figures</a> look encouraging: conviction numbers for rape and attempted rape <a href="http://www.gov.scot/Publications/2018/02/7427/0">have nearly</a> tripled during this decade, from just 36 in 2010-11 to 98 in 2016-17. </p>
<p>That said, conviction numbers are down for the past two years, having peaked at 125 in 2014/15. More worryingly, only 13% of the rapes or attempted rapes reported were prosecuted in 2016/17. And a mere 5% of complaints – one in 20 – actually resulted in a conviction. Rates are <a href="https://www.sericc.org.uk/pdfs/5533_rape-conviction-rates-in-england.pdf">similar</a> in England and Wales. </p>
<p><strong>Scottish sex crime convictions 2007-17</strong></p>
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<a href="https://images.theconversation.com/files/209308/original/file-20180307-146694-vesak7.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/209308/original/file-20180307-146694-vesak7.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/209308/original/file-20180307-146694-vesak7.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=277&fit=crop&dpr=1 600w, https://images.theconversation.com/files/209308/original/file-20180307-146694-vesak7.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=277&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/209308/original/file-20180307-146694-vesak7.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=277&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/209308/original/file-20180307-146694-vesak7.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=348&fit=crop&dpr=1 754w, https://images.theconversation.com/files/209308/original/file-20180307-146694-vesak7.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=348&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/209308/original/file-20180307-146694-vesak7.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=348&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="attribution"><a class="source" href="http://www.gov.scot/Resource/0053/00532010.pdf">Scottish government</a></span>
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<p><strong>Scottish conviction rate comparison</strong></p>
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<a href="https://images.theconversation.com/files/209313/original/file-20180307-146650-bu5mle.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/209313/original/file-20180307-146650-bu5mle.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/209313/original/file-20180307-146650-bu5mle.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=282&fit=crop&dpr=1 600w, https://images.theconversation.com/files/209313/original/file-20180307-146650-bu5mle.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=282&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/209313/original/file-20180307-146650-bu5mle.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=282&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/209313/original/file-20180307-146650-bu5mle.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=355&fit=crop&dpr=1 754w, https://images.theconversation.com/files/209313/original/file-20180307-146650-bu5mle.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=355&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/209313/original/file-20180307-146650-bu5mle.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=355&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="attribution"><a class="source" href="http://www.gov.scot/Resource/0053/00532010.pdf">Scottish government</a></span>
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<p>Like many countries, Scotland <a href="http://webarchive.nationalarchives.gov.uk/20110218141141/http://rds.homeoffice.gov.uk/rds/pdfs05/hors293.pdf">has</a> a problem <a href="http://www.jstor.org/stable/10.1086/653101">with what</a> is known as attrition – the process by which the number of cases initially reported to police do not proceed through the criminal justice system. The figures are particularly concerning if <a href="https://www.griffith.edu.au/__data/assets/pdf_file/0005/260195/Daly-and-Bouhours-2010-Rape-case-attrition.pdf">the many cases</a> that remain unreported are taken into account. </p>
<h2>Courageous victims</h2>
<p>In keeping with the broader trend, Scottish victims are at least becoming more willing to come forward. As many as 1,755 rapes <a href="http://www.gov.scot/Publications/2018/02/7427/0">were reported</a> to the police in 2016-17, a 78% increase on the 997 rapes reported in 2010-11. (That latter year followed <a href="http://www.legislation.gov.uk/asp/2009/9/contents">changes to the law</a> that broadened the definition of rape.) </p>
<p>It still takes great courage to report a sex crime, but Scotland has made a lot of effort to reform this area and it seems to be having an effect. Nicola Sturgeon’s administration has positioned rape as a national priority, <a href="https://beta.gov.scot/news/supporting-victims-of-rape/">making some</a> £20m available between 2015 and 2018. </p>
<p>Police Scotland has <a href="http://www.heraldscotland.com/news/14229815.display/">set up</a> a national rape task force, and dedicated specialist rape investigation units. The Scottish prosecution service <a href="https://beta.gov.scot/publications/thematic-review-investigation-prosecution-sexual-crimes/">has changed</a> how rape and other sex offences are prosecuted, including a shift towards specialist prosecutors and setting up a national sexual crimes unit. Scottish judges now have to direct juries in rape cases on how to consider evidence – specifically explaining why a victim may not physically resist their attacker or report an offence immediately. </p>
<p>Police-led campaigns such as <a href="http://www.wecanstopit.co.uk/">“We Can Stop It”</a> have raised awareness that sex without consent is rape. Rape Crisis Scotland last year ran a high-profile, award-winning campaign, <a href="https://www.rapecrisisscotland.org.uk/i-just-froze/">“I Just Froze”</a>, challenging public assumptions about how a person should react if they are raped. Together with recent wider movements such as #timesup and #metoo signalling that sexual and gender-based violence are totally unacceptable, these efforts are hopefully helping. </p>
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<p>One difficulty with prosecution and conviction unique to Scotland is the evidential requirement of corroboration, which requires two different and independent sources of evidence to prove a crime. This is a particular problem for rape cases since they frequently occur in private. Under corroboration rules, victim statements alone, no matter how strong and credible, are not legally sufficient; there needs to be additional evidence to proceed. </p>
<h2>Rough justice</h2>
<p>With sex offences <a href="http://www.gov.scot/Publications/2017/11/3053/1">currently accounting</a> for 75% of high court workload, sexual offences are clearly core business. Yet not only is securing convictions very challenging, those seeking justice <a href="http://www.gov.scot/Publications/2018/02/7427/0">still</a> describe <a href="http://journals.sagepub.com/doi/pdf/10.1177/1748895816667996">their experience</a> as “traumatic”. </p>
<p>Convictions alone <a href="http://journals.sagepub.com/doi/pdf/10.1177/1748895816667996">do not</a> redress the harms caused by rape and sexual assault – process matters, too. <a href="http://www.sccjr.ac.uk/publications/evaluation-of-the-rape-crisis-scotland-national-advocacy-project/">New research</a> we have co-authored suggests victim’s experiences can be improved by providing dedicated rape crisis advocacy workers to support them. This is another welcome recent improvement in Scotland. There are equivalent services in England and Wales but not in many other countries. </p>
<p>Improvements to victim experiences continue to be hampered by the system, however. Questions must be raised about every stage in the process – particularly around how evidence is obtained and used. The use of special measures, such as victims giving their evidence from behind a screen or allowing pre-recorded video evidence, can make a victim’s experience less stressful and produce better evidence. Pre-recording is now possible in Australia, New Zealand, England and Wales, for example, but not Scotland. </p>
<p>There are also issues in Scotland about how evidence is used at trial – particularly regarding sexual history and character evidence. Though subject to <a href="http://www.gov.scot/Publications/2007/09/12093427/2">restrictions</a>, this can still be used to discredit rape complainers to a jury by drawing upon popular gender misconceptions about sexual conduct and reputation. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/209525/original/file-20180308-30958-19q0srj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/209525/original/file-20180308-30958-19q0srj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/209525/original/file-20180308-30958-19q0srj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/209525/original/file-20180308-30958-19q0srj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/209525/original/file-20180308-30958-19q0srj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/209525/original/file-20180308-30958-19q0srj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/209525/original/file-20180308-30958-19q0srj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/209525/original/file-20180308-30958-19q0srj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Progress?</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/lady-justice-560032672?src=ThdpjzHaCRgAXebipjWT2A-1-68">icedmocha</a></span>
</figcaption>
</figure>
<p>A <a href="http://www.gov.scot/Publications/2017/11/3053">recent review</a> by the Inspectorate of Prosecution concluded that the “ordeal of giving evidence” is particularly acute for victims of sex crimes, with much of it related to questions of this nature. Victim support groups and legal commentators <a href="http://journals.sagepub.com/doi/full/10.1177/0022018317728824">say the</a> legislative protections are either not used in practice or not having the impact intended. </p>
<p>Reducing humiliation and trauma is necessary in and of itself, but if complainers give their “best” evidence and participate fully in legal processes, it should help improve conviction rates. Researchers need to better understand how the procedural safeguards are being used and experienced; this is just as important as, for example, continually raising awareness about the impact of rape or training criminal justice professionals in this area. </p>
<p>Comparing the reasons for attrition between different jurisdictions is <a href="http://kunskapsbanken.nck.uu.se/nckkb/nck/publik/fil/visa/197/different">far from straightforward</a>. Variations in law around sex offences and evidence, procedure, victims’ rights, and the extent to which stereotypes around rape persist all affect what happens on the ground. </p>
<p>Yet the Scottish experience certainly shows that general improvements in encouraging victims to come forward is only one aspect of a complex problem. To properly address conviction rates for rape and other sexual offences, the system needs thorough reform. We are still not even close to solving the problem.</p><img src="https://counter.theconversation.com/content/92968/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michele Burman has received research funding from the Scottish government to carry out research on rape shield legislation and from Rape Crisis Scotland/Police Scotland to evaluate advocacy services. </span></em></p><p class="fine-print"><em><span>Oona Brooks-Hay has received research funding from Rape Crisis Scotland/Police Scotland to evaluate advocacy services.</span></em></p>Only 5% of rape complaints in the UK end in convictions – what a legacy for the #metoo generation.Michele Burman, Professor of Criminology, University of GlasgowOona Brooks-Hay, Lecturer in Criminology, University of GlasgowLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/928192018-03-05T23:46:21Z2018-03-05T23:46:21ZInternational Women’s Day: Reminder women must keep fighting — everywhere<figure><img src="https://images.theconversation.com/files/208820/original/file-20180304-65525-f7lk30.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">On International Women's Day in 2016, a demonstrator carries a cross that reads in Spanish: "For you, for all" to protest violence against women. International Women's Day is much more widely celebrated in Latin America than it is in Canada and the United States, but injustices for women is a global phenomenon. </span> <span class="attribution"><span class="source">(AP Photo/Eduardo Verdugo)</span></span></figcaption></figure><p><a href="https://www.internationalwomensday.com/">International Women’s Day</a> is a major global event that will be widely celebrated in some countries and virtually ignored in others.</p>
<p>In Latin America, <em>el Día Internacional de la Mujer</em> is important. It is popularly observed in most if not all countries by women and men from all walks of life. </p>
<p>On March 8, I will receive countless messages from friends and colleagues in Cuba and Guatemala, two countries where I have spent a considerable amount of time and maintain close personal and professional relationships. </p>
<p>Women — young, old, politically engaged or blissfully disinterested in politics — will congratulate me and other women on “our day.” </p>
<p>Yet in Canada, I feel International Women’s Day (IWD) is largely irrelevant. In fact, I was unaware of it until I started spending large chunks of time in Latin America. I have never had anyone in Canada or the United States wish me a Happy International Women’s Day. It just doesn’t seem to resonate in the same way that it does in Latin America. </p>
<p>Why is this the case? </p>
<h2>The importance of the UN</h2>
<p>It’s likely attributable to the different contexts in which IWD takes place, and the different political and cultural meanings that the day of celebration and protest has assumed.</p>
<p>The first IWD <a href="http://www.un.org/en/events/womensday/history.shtml">was celebrated in New York City in 1909</a> to commemorate the march for women’s rights that had taken place in that same city the previous year. </p>
<p>These activities were part of the struggle for women’s suffrage, which was slowly extended to women around the world in the early 20th century. They were also part of the broader struggle for women’s labour and economic rights, an agenda that was likely viewed by governments and citizens alike as communist propaganda. </p>
<p>The first IWD celebrations in New York were encouraged by the Socialist Party of America. From 1910 to 1917, IWD observances were held in Denmark, Germany, Finland, Austria, and Russia, among other places, mainly as the result of union and social democratic party activism. </p>
<p>Then, several decades later in 1975, the year of the first United Nations (UN) Conference on Women, the UN began an annual recognition and celebration of IWD.</p>
<p>The significance of the UN’s involvement is undeniable for countries in Latin America and for women’s movements in that region. Many activists within global and Latin American women’s movements credit the UN and its declarations and conferences for improvements in women’s rights and addressing gender discrimination. </p>
<p>The UN’s resources have enabled women to pressure otherwise unresponsive governments for social and political change. The UN, however, has not played a similar role in Canada and the United States.</p>
<h2>#MeToo and #TimesUp</h2>
<p>The UN continues to be the main global advocate of IWD. It organizes activities and highlights the continued struggle for women’s rights and gender justice. </p>
<p>The 2018 theme is <a href="http://www.un.org/en/events/womensday/index.shtml">“Time is Now: Rural and Women’s Activists Transforming Women’s Lives.”</a> It connects women’s struggles to the UN’s sustainable development goals and states that: “International Women’s Day is a time to reflect on progress made, to call for change and to celebrate acts of courage and determination by ordinary women who have played an extraordinary role in the history of their countries and communities.” </p>
<p>This recognizes a prolonged and communal struggle for women, one that is reflective of historical and continued experiences of women in Latin America.</p>
<p>For women in North America, current experiences are perhaps better captured in the explanation on the UN Women website that IWD 2018 “comes on the heels of unprecedented global movement for women’s rights, equality and justice.”</p>
<p><a href="http://www.unwomen.org/es/news/in-focus/international-womens-day">It notes that</a> the movement “has taken the form of global marches and campaigns, including #MeToo and #TimesUp in the United States of America and their counterparts in other countries, on issues ranging from sexual harassment and femicide to equal pay and women’s political representation.” </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/208819/original/file-20180304-65533-1f42tgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/208819/original/file-20180304-65533-1f42tgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/208819/original/file-20180304-65533-1f42tgq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/208819/original/file-20180304-65533-1f42tgq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/208819/original/file-20180304-65533-1f42tgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/208819/original/file-20180304-65533-1f42tgq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/208819/original/file-20180304-65533-1f42tgq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Women in South Korea march on March 4, 2018, in support of the #MeToo movement in advance of 2018 International Women’s Day on March 8.</span>
<span class="attribution"><span class="source">(AP Photo/Ahn Young-joon)</span></span>
</figcaption>
</figure>
<p>While this is a timely and engaging articulation of the theme, it is focused on very recent and highly contested political events, and suggests that the struggle for gender justice is fractured and individualized.</p>
<p>It’s also interesting to note that there is a competing global IWD campaign, supported not by the UN but by a conglomerate <a href="https://www.internationalwomensday.com/Theme">of corporate and non-governmental organizations.</a> Its theme is #PressForProgress, which is a fairly diluted call to action, one that is aimed primarily at women in countries of what’s now known as the <a href="https://www.rgs.org/NR/rdonlyres/6AFE1B7F-9141-472A-95C1-52AA291AA679/0/60sGlobalNorthSouthDivide.pdf">Global North.</a></p>
<h2>High rates of femicide in Latin America</h2>
<p>The importance of the UN, the significance of its sustainable development goals and the cultural understanding of enduring historical struggles for peace, justice and human and women’s rights in Latin America culminate in annual IWD celebrations. </p>
<p>Women in Latin America are aware that progress toward justice is hard won, and that there is much work left to be done. Latin America has some of the world’s highest rates of femicide. The epidemic of gender-based killing of women has inspired <a href="http://www.unwomen.org/en/news/stories/2017/2/take-five-adriana-quinones-femicide-in-latin-america">its own social movement</a>, #NiUnaMas.</p>
<p>In Canada and the U.S., these problems may not be seen as acute, which sometimes results in a tendency to view progress toward gender justice uncritically and to believe the myth of equal status. </p>
<p>But women everywhere have low status relative to men. This is a global phenomenon and there are no exceptions. There are, of course, individual women who defy this gender subordination, but women as a social category do not.</p>
<p>The problems that serve as evidence of women’s low status in Canada include the <a href="http://www.cbc.ca/news/business/statistics-canada-gender-pay-gap-1.4014954">gender pay gap</a>, the double burden of paid employment and household work, lack of affordable child care, sexual harassment and sexual assault. They extend to intimate partner violence, femicide, and <a href="https://www.thestar.com/news/gta/2018/03/03/toronto-protesters-demand-justice-for-tina-fontaine-and-other-indigenous-girls.html">missing and murdered Indigenous women</a>. </p>
<p>There is much work to be done in Canada. There is much work to be done everywhere. </p>
<p>The time is now.</p><img src="https://counter.theconversation.com/content/92819/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Candace Johnson receives funding from The Social Sciences and Humanities Research Council.</span></em></p>Women everywhere have low status relative to men. This is a global phenomenon and there are no exceptions, and there is much work to be done in Canada and everywhere. The time is now.Candace Johnson, Professor of Political Science, University of GuelphLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/906302018-01-29T18:13:50Z2018-01-29T18:13:50ZYes means yes: moving to a different model of consent for sexual interactions<figure><img src="https://images.theconversation.com/files/203693/original/file-20180129-100915-x6up69.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The 'yes means yes' school of thought argues that consent can – and should – be made cool.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>The rise of the <a href="https://metoomvmt.org/">#MeToo</a> and <a href="https://www.timesupnow.com/">Time’s Up</a> movements have put an unprecedented focus on the issue of what is acceptable sexual behaviour. An explosion of high-profile allegations in the <a href="http://time.com/5015204/harvey-weinstein-scandal/">Hollywood movie industry</a> and in the <a href="http://www.smh.com.au/entertainment/hes-calculated-and-manipulative-a-predator-craig-mclachlan-accused-of-indecent-assault-20180107-h0enst.html">Australian theatre scene</a> have only added to the public scandal.</p>
<p>Of all the allegations of sexual misconduct swirling in Hollywood, the <a href="https://babe.net/2018/01/13/aziz-ansari-28355">case involving Aziz Ansari</a> is most divisive, because it centres on what constitutes consent. There is now pressure to move away from consent that can be implied or inferred, to a pure affirmation model, where only yes means yes.</p>
<h2>The extent of the problem</h2>
<p>The Australian Bureau of Statistics (ABS) defines sexual assault as an act of a sexual nature carried out against a person’s will or without a person’s consent. It involves physical contact and/or the use of physical force, intimidation or coercion. </p>
<p>The <a href="http://crimestats.aic.gov.au/facts_figures/1_victims/A1/">Australian Institute of Criminology</a> indicates that the rate of sexual assault recorded by police in Australia has increased steadily since 2012.</p>
<p><a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4530.0%7E2015-16%7EMain%20Features%7ESexual%20assault%7E32">According to ABS figures</a> from 2015–16, during the 12 months prior to interview, 77,400 Australians aged 18 years and over (0.4% of the population) experienced sexual assault. However, under-reporting was prominent. Only some 30% of matters were reported to police.</p>
<p>Of those sexually assaulted, 21% were male and 79% were female. More than 60% of those assaulted were aged between 18 and 34 years.</p>
<h2>What is consent?</h2>
<p>In <a href="https://www.alrc.gov.au/publications/25.%20Sexual%20Offences/consent">Australian jurisdictions</a> consent is generally held to include free and voluntary agreement given by the complainant. </p>
<p>All jurisdictions, except for the Australian Capital Territory (ACT), have statutory definitions of consent. The <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/act/consol_act/ca190082/s67.html?context=0;query=consent;mask_path=au/legis/act/consol_act/ca190082">ACT provides a list</a> of circumstances that do not constitute consent. </p>
<p>The definitions of consent do not outline the form or way such agreements need to be formulated. Rather, they go to the context of consent and the ability to give consent.</p>
<p>However, the <a href="https://www.sclqld.org.au/caselaw/QCA/1995/045">Queensland Court of Appeal</a> noted:</p>
<blockquote>
<p>A complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law thereby taken to have consented to it. Failing to do so may, however, depending on the circumstances … provide a basis for exemption from criminal responsibility under s.24 of the Criminal Code [<a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/cc189994/s24.html">mistake of fact</a>].</p>
</blockquote>
<p>The <a href="https://www.legislation.gov.uk/ukpga/2003/42/section/74">UK Sexual Offences Act</a> talks of consent being agreement by choice, and the person has the freedom and capacity to make that choice. </p>
<p>The <a href="http://www.un.org/womenwatch/daw/vaw/handbook/Handbook%20for%20legislation%20on%20violence%20against%20women.pdf">United Nations Handbook for Legislation on Violence against Women</a> states that consent requires:</p>
<blockquote>
<p>the existence of ‘unequivocal and voluntary agreement’ and requiring proof by the accused of steps taken to ascertain whether the complainant/survivor was consenting.</p>
</blockquote>
<hr>
<p><iframe id="OIu7M" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/OIu7M/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<hr>
<h2>The affirmation model</h2>
<p>The <a href="http://time.com/5104010/aziz-ansari-affirmative-consent/">affirmation model of consent</a> essentially relies on a positive agreement between the parties before sexual interaction can begin – in simple terms, a clear and unequivocal “yes”.</p>
<p>In the United States, the primary focus of affirmative consent is on how sexual assaults are handled in universities and colleges. <a href="http://affirmativeconsent.com/affirmative-consent-laws-state-by-state/">California and a handful of other states</a>, and hundreds of educational institutions, have now enacted affirmative consent laws and policies.</p>
<p>The <a href="http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967">Californian law</a> states:</p>
<blockquote>
<p>“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.</p>
</blockquote>
<p>A person must take reasonable steps, in the circumstances, to ascertain whether the other participant affirmatively consents.</p>
<p>Tasmania does reference the fact that consent does not exist if the person “does not say or do anything to communicate consent”. In other words, in the absence of positive affirmation there is no consent.</p>
<p>The <a href="https://babe.net/2018/01/13/aziz-ansari-28355">allegations against Ansari</a> centre on misreading non-verbal cues, with the complainant stating:</p>
<blockquote>
<p>You ignored clear non-verbal cues; you kept going with advances.</p>
</blockquote>
<p>Ansari did stop when the complainant asked him to. The affirmative model removes any ambiguity around the issue of consent – it is either yes or no, and the model places an onus on both parties to obtain such permission.</p>
<p>Adopting an affirmative consent model may not necessarily remove issues of credibility at trial when there is no secondary evidence of consent (such as recordings or witnesses).</p>
<p>In acquaintance sexual assaults, consent becomes a central evidentiary element required to be proven. As a former senior detective, I saw these matters often reduced to a battle of credibility between the accused and the accuser. In Australia between 2010-2016, the majority of reported offences were acquaintance based.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/203345/original/file-20180125-107956-1uwhzsz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/203345/original/file-20180125-107956-1uwhzsz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/203345/original/file-20180125-107956-1uwhzsz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/203345/original/file-20180125-107956-1uwhzsz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/203345/original/file-20180125-107956-1uwhzsz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/203345/original/file-20180125-107956-1uwhzsz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/203345/original/file-20180125-107956-1uwhzsz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/203345/original/file-20180125-107956-1uwhzsz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Breakdown of relationship status between victim and offender as sourced from police reports. Sourced from ABS.</span>
<span class="attribution"><span class="source">Author</span></span>
</figcaption>
</figure>
<p><a href="https://www.washingtonpost.com/news/in-theory/wp/2015/10/13/why-we-made-yes-means-yes-california-law/?utm_term=.0dd45f49ae59">Supporters of the laws</a> argue it removes the onus on the victim to show resistance to the act, or the fact they said no, and addresses a culture of entitlement in sexual interactions. Requiring affirmation, it is argued, can be used to create a culture of respect.</p>
<p><a href="http://time.com/3222176/campus-rape-the-problem-with-yes-means-yes/">Critics of the yes-means-yes model</a> suggest it removes due process and impinges on the rights of the accused by changing the evidentiary onus. Some argue that, given the nature of sexual interaction, it removes the passion from such transactions. </p>
<h2>Making consent cool</h2>
<p>Compounding this is the need to obtain consent for each act of sexual interaction. The premise being <a href="https://www.nytimes.com/2014/02/09/education/edlife/students-advocate-for-consensual-sex.html"><em>ask first and ask often</em></a>. </p>
<p>While such a requirement may appear awkward, others argue it can be turned into <a href="https://www.xojane.com/issues/affirmative-consent-study">“enthusiastic consent”</a> where it can be entwined with foreplay and</p>
<blockquote>
<p>turned into an integral part of a sexual encounter as partners banter back and forth, tease, and check in with each other on what they are (and aren’t) going to do.</p>
</blockquote>
<p>When I ask my criminology students what consent in sexual assault matters means, few are able or willing to answer. Such questions are met with embarrassment and the inevitable answer is “you just know”. Of note is that my classes are overwhelming female. There are <a href="https://www.nytimes.com/2014/02/09/education/edlife/students-advocate-for-consensual-sex.html">differences as to how males and females seek and interpret consent</a>.</p>
<p>This highlights that not only must we focus our efforts on educating on appropriate sexual behaviours, but we must also educate those most at risk as to what levels of consent they are entitled to. As <a href="https://www.nytimes.com/2014/02/09/education/edlife/students-advocate-for-consensual-sex.html">one article highlighted</a>, we need to make consent cool.</p><img src="https://counter.theconversation.com/content/90630/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Terry Goldsworthy is a member of the management committee of the Gold Coast Centre against Sexual Violence.</span></em></p>In the wake of the MeToo and Time’s Up movements, a new model of sexual consent is required – one that needs a clear and unequivocal yes from all parties.Terry Goldsworthy, Assistant Professor in Criminology, Bond UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/899082018-01-11T11:40:39Z2018-01-11T11:40:39ZTargeting hidden roots of workplace harassment is key to fulfilling Oprah’s promise to girls<p>The #MeToo movement was on full display at this year’s Golden Globes, where stars wore black to show solidarity. Among them was Oprah Winfrey, who, in accepting a lifetime achievement award, <a href="https://www.theatlantic.com/entertainment/archive/2018/01/full-transcript-oprah-winfreys-speech-at-the-golden-globes/549905/">paid tribute</a> to the women who dared tell their truth, assuring “all the girls watching” that “a new day is on the horizon.”</p>
<p>While 2017 unearthed harassment and assault in a wide variety of work contexts – Hollywood, <a href="https://www.nytimes.com/2017/12/17/us/harvey-weinstein-hotel-sexual-harassment.html?_r=0">hotels</a>, <a href="https://www.npr.org/2017/11/15/564405871/me-too-legislation-aims-to-combat-sexual-harassment-in-congress">Congress</a>, <a href="http://time.com/time-person-of-the-year-2017-silence-breakers/">strawberry fields</a>, <a href="https://www.vanityfair.com/news/2017/12/silicon-valley-has-its-own-unique-kind-of-harassment-will-technology-have-its-metoo-moment">Silicon Valley</a> and <a href="https://www.nytimes.com/interactive/2017/12/19/us/ford-chicago-sexual-harassment.html">auto plants</a> – the focus is now on that horizon and what to do next.</p>
<p>The Time’s Up initiative, led by <a href="https://www.timesupnow.com/">Hollywood power players</a> including producer Shonda Rhimes and actress Eva Longoria, <a href="https://www.timesupnow.com/">distributed a plan</a> to do just that. It rightly views harassment as a harm unto itself and as part of a larger system of disadvantage, where women remain <a href="http://fortune.com/2017/06/09/white-men-senior-executives-fortune-500-companies-diversity-data/">underrepresented</a> at the highest levels, while low-wage workers are especially “vulnerable … to violence and exploitation.” That means pursuing justice for victims, accountability for wrongdoers and gender parity in pay, opportunities and representation.</p>
<p>Part of the answer is just this straightforward: Stop workplace harassment and treat employees equally. But when you zoom out further, the harassment crisis of 2017 reveals broader cracks in workplace regulation that have grown over time – similar to how the 2008 financial crisis resulted from long-festering economic problems and weaknesses in our legal system.</p>
<p>Social scientists and legal scholars have been examining these issues for some time. Their research – as well as some of <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3009913">my</a> <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2675846">own</a> <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3009943">work</a> – reveals several root problems that need to be addressed through legal reforms if we hope to reach the “new day” Oprah promised.</p>
<h2>Getting at the roots – and the gaps</h2>
<p>Employment laws can have a patchy quality, where some workers are protected and others are left out in the cold. </p>
<p>Many statutes only cover employers with a minimum number of employees. For example, the federal statute prohibiting harassment – <a href="https://www.eeoc.gov/laws/statutes/titlevii.cfm">Title VII of the Civil Rights Act</a> – only covers employers with 15 or more workers. That means employees of small businesses have no legal recourse if they suffer harassment or discrimination. </p>
<p>The problem is especially acute for <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=19&ved=0ahUKEwjrwYCd5r7YAhUN3WMKHZEzBecQFgiLATAS&url=http%3A%2F%2Fwww.nelp.org%2Fcontent%2Fuploads%2F2015%2F03%2FRightsBeginAtHomeCalifornia.pdf&usg=AOvVaw0C7CiKIqgeAJcGQxtVJvrh">domestic workers</a>, engaged in child care, elder care or housekeeping. These workers are effectively invisible as far as harassment law is concerned.</p>
<p>Agricultural workers are also <a href="http://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/hlelj18%C2%A7ion=22">excluded</a> from the National Labor Relations Act, the statute protecting workers’ right to join a union. Although this does not on its face relate to harassment, unions can play an important role in advocating for their members on a variety of issues.</p>
<p>Independent contractors are similarly vulnerable. They are not protected by any existing employment-related statutes, from laws covering harassment and wages to unemployment insurance and workers compensation. And this problem is only growing with the rise of the <a href="https://theconversation.com/the-gig-economy-may-strengthen-the-invisible-advantage-men-have-at-work-86444">gig economy</a>. Around 4 million workers power the gig economy. Virtually all of them <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2675846">are treated</a> as independent contractors.</p>
<p>The point is that businesses have no incentive to comply with laws that do not apply to their workers. Preventing harassment – and other workplace harms – will require expanding the reach of the laws already in place.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/201575/original/file-20180110-46700-2w1z64.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/201575/original/file-20180110-46700-2w1z64.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=426&fit=crop&dpr=1 600w, https://images.theconversation.com/files/201575/original/file-20180110-46700-2w1z64.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=426&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/201575/original/file-20180110-46700-2w1z64.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=426&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/201575/original/file-20180110-46700-2w1z64.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=535&fit=crop&dpr=1 754w, https://images.theconversation.com/files/201575/original/file-20180110-46700-2w1z64.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=535&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/201575/original/file-20180110-46700-2w1z64.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=535&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Many men and women at this year’s Golden Globes wore pins highlighting the Times Up Initiative, which among other things has offered to pay legal fees for victims of sexual harassment.</span>
<span class="attribution"><span class="source">Jordan Strauss/Invision/AP)</span></span>
</figcaption>
</figure>
<h2>Access to justice for low-wage workers</h2>
<p>Low-wage workers are particularly vulnerable to workplace harms – including harassment – yet <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0ahUKEwiLt_Pw477YAhUK1mMKHTP5A2YQFggtMAE&url=http%3A%2F%2Fscholarship.law.berkeley.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1481%26context%3Dbjell&usg=AOvVaw1LgAIXuRAP1Sw33F_gftXG">are least able</a> to vindicate their rights.</p>
<p>Low-wage workers can have trouble finding a lawyer because it’s not always profitable to represent them. That’s why the <a href="https://www.timesupnow.com/">Time’s Up initiative</a> has created a legal fund to help workers with legal fees associated with harassment claims. </p>
<p>Nevertheless, long-term progress will likely require legal reform.</p>
<p>The damages courts award for employment law violations <a href="https://www.eeoc.gov/laws/statutes/titlevii.cfm">are often a function</a> of lost wages, which makes high-wage earners more attractive to plaintiffs’ lawyers working on contingency. However, damages can be structured in other ways, for example by imposing large penalties for certain types of violations. States like California have successfully used penalties to encourage lawyers to <a href="https://www.dir.ca.gov/Private-Attorneys-General-Act/Private-Attorneys-General-Act.html">represent all types</a> of workers in wage claims.</p>
<p>Low-wage workers also have trouble finding a lawyer when their employer is “undercapitalized” – that is, almost broke. Labor economist David Weil documented a larger trend of a <a href="http://www.fissuredworkplace.net/">“fissured” workplace</a>, in which large companies subcontract everything on a competitive basis. These subcontractors are small employers with virtually no money and a strong incentive to cut costs through noncompliance with employment laws.</p>
<p>Lawmakers can help here too, by making it easier for workers to sue the larger company subcontracting the work.</p>
<h2>Limiting arbitration agreements</h2>
<p>Another problem is mandatory arbitration agreements that companies increasingly require employees to sign.</p>
<p>In a New York Times op-ed, former Fox News host Gretchen Carlson criticized mandatory arbitration agreements that <a href="https://www.nytimes.com/2017/10/10/opinion/women-reporting-sexual-harassment.html">prevent women</a> from bringing their harassment claims in court. It’s actually much worse than this, and the harm extends far beyond harassment claims.</p>
<p>These arbitration agreements often contain class action waivers that prevent employees from bringing any class action claims <a href="https://brooklynworks.brooklaw.edu/blr/vol80/iss4/3/">in court or in arbitration</a>. That means no class actions for widespread harassment. Or anything else for that matter, such as unpaid overtime or pay discrimination. </p>
<p>Class actions play an important role in deterrence. Without them, the law will <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3016624">erode</a>.</p>
<p>These arbitration agreements are made possible by an arcane law known as the Federal Arbitration Act. The proposed <a href="https://www.congress.gov/bill/115th-congress/house-bill/1374">Arbitration Fairness Act</a> would address the problem by limiting an employer’s ability to bind workers to such agreements.</p>
<h2>Address the ‘motherhood penalty’</h2>
<p>A final issue that undermines equality in the workplace is known as the “motherhood penalty.” Researchers estimate that a substantial portion of the wage gap is actually an <a href="http://journals.sagepub.com/doi/abs/10.1177/0730888404266364">informal penalty</a> applied to mothers. </p>
<p><a href="http://gender.stanford.edu/sites/default/files/motherhoodpenalty.pdf">One experimental study</a> found that mothers were rated as less competent and committed to the workplace than fathers and women without children. Participants in the study also recommended a lower salary offer and deemed the mothers less promotable.</p>
<p>Work-family policies intended to help women – such as flexible schedule and leave – can be stigmatizing. A <a href="http://journals.sagepub.com/doi/abs/10.1177/0730888404266364">longitudinal study</a> by sociologist Jennifer Glass found that telecommuting and part-time schedules produced strong wage penalties for managerial and professional working mothers over time. These workers essentially had to leave for another employer before their wages recovered.</p>
<p>The negative effect of leave-related stigma is not limited to women. Although family and medical leave laws apply equally to men and women, in practice, men may find their leave requests denied or <a href="https://pubsonline.informs.org/doi/abs/10.1287/orsc.2015.0975">cut back</a>.</p>
<p>When business professor Erin Reid interviewed more than 100 workers at a consulting company, women described <a href="https://pubsonline.informs.org/doi/abs/10.1287/orsc.2015.0975">being marginalized</a> after requesting accommodations for family care obligations. But so did the men. A new father who asked to take his legally entitled 12 weeks of leave said he was initially refused and later saw repercussions in his performance review.</p>
<p>Aware of this penalty, some men in Reid’s study decided to “fake it” by <a href="https://hbr.org/2015/04/why-some-men-pretend-to-work-80-hour-weeks">figuring out ways</a> to reduce their work commitments under the radar. This option was apparently unavailable to women, who were assumed to be taking care of children when away from their desk.</p>
<p>Addressing the motherhood penalty may mean revisiting our conception of what it means to be a strong performer beyond superficial measures based on face time or billable hours. Progress may also require cracking down on employers that discriminate against men and women for making family leave requests. And providing protection for workers based on their parental status, as <a href="http://www.ncsl.org/research/labor-and-employment/discrimination-employment.aspx">several states</a> have done.</p>
<p>If 2017 was the year of reckoning, 2018 should be one of restructuring, in which we examine the path that led us here and build a wider road for those that follow.</p><img src="https://counter.theconversation.com/content/89908/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth C. Tippett does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>At the Golden Globes, Oprah Winfrey assured girls that the harassment scandals of 2017 will eventually lead to a brighter future. But deep workplace issues will have to be addressed first.Elizabeth C. Tippett, Associate Professor, School of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/896612018-01-04T14:50:20Z2018-01-04T14:50:20ZWhy it’s so important that Hollywood’s powerful women are standing up for all female workers<figure><img src="https://images.theconversation.com/files/200803/original/file-20180104-26142-1to7uxj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Emma Stone, one of the leading names behind Time's Up.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/cannes-france-may-15-emma-stone-291462239?src=pJm-d8CP5DNXHP00oTjM9A-1-22">Andrea Raffin/Shutterstock</a></span></figcaption></figure><p>It appears that 2018 is already shaping up to be the year of women working together across race and class divides to fight back against sexism and sexual harassment. On the very first day of January, new movement <a href="https://www.timesupnow.com/#into-anchor">Time’s Up</a> was announced via an <a href="https://www.timesupnow.com">open letter</a> from women working in the entertainment industry. While it could have just been a statement against the alleged sexual assault and harassment <a href="https://theconversation.com/westminster-harassment-this-is-not-just-about-sex-its-about-power-86860">of those working in Hollywood</a>, this was a message of solidarity to all “sisters”.</p>
<p>Some very powerful women in the entertainment industry created Time’s Up, but this is not about personal gain – they are using their status to help the disempowered. Time’s Up is all about high profile women using their privilege to highlight and counter sexual discrimination against all women in employment, whatever industry they are in.</p>
<p>The movement is the work of more than 300 female professionals from the fields of television, film and theatre, including producers, actresses, writers and directors. Just a selection of the starry names leading and contributing to the initiative are Emma Stone, Natalie Portman, Cate Blanchett, Ashley Judd, America Ferrera, Rashida Jones, Selena Gomez, Reese Witherspoon, Kerry Washington, Eva Longoria and Ellen Page, as well as Donna Langley, the chairwoman of Universal Pictures, and top lawyers Nina L. Shaw and Tina Tchen. As the days have gone on, more notable women have been publicly adding their names to the campaign and contributing to the fund, too, using the Twitter hashtag #TIMESUP.</p>
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<p>Hollywood’s feminists have previously been accused of representing an elitist group, who are far removed from the struggles of <a href="https://www.nytimes.com/2017/12/20/us/the-metoo-moment-blue-collar-women-ask-what-about-us.html">ordinary, less glamorous women</a>. The Time’s Up movement is a serious attempt to counter these accusations through showing solidarity with working women of all backgrounds and ethnicities.</p>
<p><a href="https://www.nytimes.com/2018/01/01/movies/times-up-hollywood-women-sexual-harassment.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news">Their aim</a>, is to raise $15m for a <a href="https://www.gofundme.com/timesup">legal defense fund</a> that can benefit low income victims of sexual misconduct. They also want to campaign for new legislation to protect women from harassment, and work towards gender parity at studios and talent agencies. A request has also been issued for celebrities to raise awareness by wearing black while walking the red carpet at the Golden Globe awards on January 7. </p>
<h2>All women</h2>
<p>The campaign’s cross class solidarity was prompted by a <a href="http://time.com/5018813/farmworkers-solidarity-hollywood-sexual-assault/">letter of support</a> from the predominantly Latina <a href="https://www.facebook.com/pg/AlianzaNacionalDeCampesinas/about/?ref=page_internal">Alianza Nacional de Campesinas</a>. This national female farm workers organisation <a href="http://time.com/5018813/farmworkers-solidarity-hollywood-sexual-assault/">wrote to the women of Hollywood</a> who had spoken out against sexual abuse following allegations against Harvey Weinstein and others. </p>
<p>In a moving section of their letter, the farm workers wrote: </p>
<blockquote>
<p>We do not work under bright stage lights or on the big screen. We work in the shadows of society in <a href="http://time.com/3599468/food-chains-farm-eva-longoria-eric-schlosser/">isolated fields and packinghouses</a> that are out of sight and out of mind for most people in this country. Your job feeds souls, fills hearts and spreads joy. Our job nourishes the nation with the fruits, vegetables and other crops that we plant, pick and pack. </p>
<p>Even though we work in very different environments, we share a common experience of being preyed upon by individuals who have the power to <a href="http://time.com/4995946/weinstein-workplace-culture/">hire, fire, blacklist</a> and otherwise threaten our economic, physical and emotional security.</p>
</blockquote>
<p>While the farm workers might be expected to level accusations of elitism against their wealthy sisters, they stood with them. Despite the enormous gulf in social and economic status, they offered their support – “Please know that you’re not alone. We believe and stand with you.” </p>
<p>This act of solidarity clearly touched the entertainment professionals who have, through the Time’s Up movement, taken the first concrete steps to support poor working women. The Time’s Up letter mirrors the language used by Alianza, while intiatives like the legal defence fund are a clear demonstration that this is more than just a PR exercise:</p>
<blockquote>
<p>To the members of Alianza and farmworker women across the country, we see you, we thank you, and we acknowledge the heavy weight of our common experience of being preyed upon, harassed, and exploited by those who abuse their power and threaten our physical and economic security.</p>
</blockquote>
<p>This collective action taken by so many women in the film, television and theatre industries is unprecedented. Using the celebrity status created by the very industry in which they have suffered might just be the best way to seek to protect all women from abuse, harassment and sexism.</p><img src="https://counter.theconversation.com/content/89661/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Deborah Shaw does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A new campaign seeks to support all women affected by sexism, whether famous or not.Deborah Shaw, Reader in Film Studies, University of PortsmouthLicensed as Creative Commons – attribution, no derivatives.