Imagine this. You are a judge presiding over the last criminal trial of your career. You are jailing a young man for six years for raping a woman. Rape, again. A female victim, again. Alcohol involved, again.
For Lindsey Kushner QC, after overseeing too many sexual offence trials, it was her last opportunity to make a plea.
She acknowledged judges are criticised for putting more emphasis on “what girls should and shouldn’t do” rather than the perpetrators but continued regardless.
“I don’t think it’s wrong for a judge to beg women to take actions to protect themselves. That must not put responsibility on them rather than the perpetrator. … It should not be like that but it does happen and we see it time and time again.
"There is absolutely no excuse and a woman can do with her body what she wants and a man will have to adjust his behaviour accordingly," she said. “They are entitled to do what they like but please be aware there are men out there who gravitate towards a woman who might be more vulnerable than others. That’s my final line, in my final criminal trial, and my final sentence.”
Some said this was simply common sense. Experts who work with victims of sexual assault say it is blatant victim-blaming.
This week the victim in that case, Megan Clark, 19, who was raped by a man she met in Burger King has publicly agreed with the judge, describing her comments as “good advice”.
"She was right in what she said," Clark told the Victoria Derbyshire programme. She said she took the judge's comments in "a positive way", adding that she did not believe she was "victim-blaming".
The relationship between alcohol and sexual assault is complicated. Alcohol is estimated to be present in 60% of instances of sexual assault but it’s not a direct association.
Drinking too much only leads to rape when there’s someone present who is willing to commit rape.
“People don’t get raped because they have been drinking, because they are passed out or because they are drunk,” Dr. Corey Slovis, chair of emergency medicine at Vanderbilt University Medical Center told USA Today. “People get raped because there is a perpetrator there — someone who wants to take advantage of them.”
When you remove rapists from the equation, the risks of getting drunk do not include getting raped. Similarly, rape also occurs when no one has been drinking.
Alcohol consumption and sexual assault frequently co-occur, but alcohol use does not cause sexual assault.
Curiously, the effect of having consumed alcohol is starkly different depending on whether you are a victim or a perpetrator of assault.
"Curiously, the effect of having consumed alcohol is starkly different depending on whether you are a victim or perpetrator of assault"Georgina Dent
Drinking is often used to reduce responsibility on the perpetrator’s part, while it creates and compounds responsibility for victims of assault.
Encouraging women and girls to refrain from drinking to reduce their chance of being assaulted ensures this line of thinking remains.
But it’s false and it’s harmful. Even when it is delivered with the very best of intentions, it quietly and powerfully perpetuates the notion that women are to blame when they are assaulted.
Every time we focus on a victim – where she was, what she wore, what she drank, what time it was – we take our focus off the perpetrator. Where he was. What he drank. What he wore. Why he thought he was entitled to force himself on a woman.
We burden women with responsibility for avoiding a crime that we are, inexplicably, willing to accommodate a perpetrator committing.
It hurts victims who deserve no further hurt. It protects criminals who need no further protection.
This was made crystal clear last year in the famous case involving a Stanford student who raped a female student while she was unconscious. He had relatives and community members publicly pleading for leniency: his life, they said, ought not be ruined by the consequences of a legal case. None of his advocates appeared to have considered the consequences of the legal case and the rape on the victim.
Fortuitously the survivor’s victim impact statement, which was articulate and powerful, was read by Vice President Joe Biden and then went viral.
In it she wrote:
Alcohol is not an excuse. Is it a factor? Yes. But alcohol was not the one who stripped me, fingered me, had my head dragging against the ground, with me almost fully naked. Having too much to drink was an amateur mistake that I admit to, but it is not criminal. Everyone in this room has had a night where they have regretted drinking too much, or knows someone close to them who has had a night where they have regretted drinking too much. Regretting drinking is not the same as regretting sexual assault. We were both drunk, the difference is I did not take off your pants and underwear, touch you inappropriately, and run away. That’s the difference.
Perpetuating the false narrative that if a woman is sober she can’t be assaulted is unhelpful. It’s not true.
Placing disproportionate focus on women not getting drunk misses the point. Where is the corresponding focus on men not to drink? Where is the attention on men not violating women? It simply isn’t there.
And until it is, it is irresponsible to paint women as having agency in being abused or assaulted. Rape isn’t caused by alcohol. It is caused by people who choose to rape. Conflating the two doesn’t help anyone.