The Burden of Proof Rests with Survivors
Note: This article addresses the topics of sexual assault, domestic violence, and trauma. Please take care of yourself while reading or listening.
For survivors of sexual assault, domestic violence, and trauma, last week’s events were soul-crushing.
I refer in particular to the public release by CNN of the video that depicts Sean Combs (Diddy) physically assaulting Cassandra Ventura (Cassie) at the Intercontinental Hotel in Los Angeles in 2016, and to the public discourse that both preceded and followed its release.
The Background to the Video
Cassie and Diddy began an on-again-off-again relationship when she was 19 and he 37 that lasted for ten years.
In November of 2023, Cassie filed a 30-page complaint in Manhattan Federal Court. She stated that over the course of their relationship, Combs repeatedly beat her and forced her to have sex with male prostitutes while he masturbated and filmed the encounters. According to the suit, Combs called the encounters “freak offs” and described them as fulfillments of his “voyeurism” fantasies. The encounters often involved coerced drug use that sent Cassie down a path of addiction.
According to the complaint, in one of the “freak offs” in 2016, Combs punched Cassie in the face and gave her a black eye. When he fell asleep, she attempted to leave their room at the Los Angeles InterContinental Hotel. When she departed he woke up, followed her into the hallway, hit her, knocked her to the ground, kicked her, and dragged her down the hallway, and threw glass vases at her.
According to the lawsuit, Combs paid the hotel $50,000 in exchange for the footage.
Toward the end of their relationship in 2018, the complaint said, Combs forced his way into her home and raped her.
Many people did not believe Cassie despite the fact that she disclosed such traumatic and painful experiences in a public filing.
They did not believe her despite the fact that she disclosed extensive, highly believable details of the abuse in the 30-page complaint, which described not only the hotel assault but a series of other attacks, rapes, druggings, forced production of pornography, and sex trafficking.
They did not believe her despite the fact that three other women and one man made strikingly similar allegations against Combs which included physical assault, sexual harassment, rape, forced pornography, and sex trafficking. (One woman alleged that Combs choked her to the point of unconsciousness.)
They did not believe her even when in March of 2024, the Department of Homeland Security raided Combs’s homes in Miami and Los Angeles in connection with a federal sex trafficking investigation.
The Release of the Video
Over the weekend, the video of Combs assaulting Cassie at the InterContinental Hotel was leaked to CNN, who released it. The video immediately went viral.
It breaks my heart that Cassie endured this horrific assault, abuse, violence, and trauma in the first place.
It breaks my heart that this video was released for public consumption, that Cassie had to relive her trauma in the public eye, and that her children may someday watch it too.
It breaks my heart that so many people watched the video and that as a society, we are becoming desensitized to the sight and the presence of sexual and gender-based violence.
It also breaks my heart that so many people doubted Cassie’s account of the abuse she suffered, and that more people believe her now solely because of the video.
It’s heartbreaking too the way that perpetrators conduct sexual assault, domestic violence, and trauma in secret, and in situations where they hold all the control. This means that most survivors of sexual assault and domestic violence do not have videos of their assaults, and face even steeper uphill battles for justice than Cassie’s.
The elephant in the room is the extraordinary and outsized burden of proof that survivors of physical and sexual assault bear in these crimes against humanity.
Burden of Proof
Legally, the term “burden of proof” refers to the level of certainty that a court requires to prove a civil or criminal case.
Socially and psychologically, the term denotes the overwhelming amount of proof that the criminal justice system, people in positions of power, their supporters, the community as a whole, and even systems that claim to support survivors require in order to believe us, to stand with us when someone harms us.
We live in a patriarchal culture where sexual assault, abuse, and harassment are a matter of course and where an outsized burden of proof is levied on survivors regardless of the intricacy of details, specificity of recall, or corroborating evidence given.
And we live in a white supremacist culture where an even greater burden of proof is levied on marginalized survivors, including survivors of color, queer, trans, and disabled survivors, and those who hold multiple nodes of social marginalization.
Burden of Proof for Black, Brown, Indigenous, and LGBTQ+ Folks
The burden of proof for sexual assault, domestic violence, and trauma is vast for all survivors.
But women like me with compounded forms of privilege are the only ones who exist in a category solely defined by gender.
The U.S. Bureau of Justice Statistics reports that white women experience close to the lowest incidence of sexual violence, at eighteen percent. Women of color have significantly higher rates. As many as 60 percent of Black women experience coercive sexual contact by age 18. And Native women are up to 3.5 times more likely to experience sexual assault than any other ethnicity.
The burden of proof is far greater for BIPOC survivors than for white survivors like myself who hold multiple nodes of privilege.
In 2008, queer feminist scholar Dr. Moya Bailey coined the term misogynoir. A blend of the words misogyny and the French noir, the term refers to the “hatred, aversion, and prejudice” that people direct to Black women.
You can think of misogynoir as the misogyny directed toward Black women in a way that both gender and race (think patriarchy and white supremacy) intersect and compound one another’s impact.
“The real root of misogynoir,” says Dr. Bailey, “is how people perceive and treat Black women and understand them to be worthy of respect and care—something that has to change at the structural level of our society, not just the individual behaviors.”
The phenomenal Sonya Renee Taylor talks about the ladder of bodily hierarchy.
Who does society believe has a more valuable body, based gender, race, body size and appearance, gender identity, sexual orientation, and ability? At the top of the ladder (except officially, there’s no “real” top) are white males. If you inhabit a female, Black, Brown, Indigenous, queer, gender non-conforming, fat, or disabled body (or combinations of these marginalized social and bodily locations), the burden of proof in sexual assault rises exponentially.
We Keep the System Alive
The problem isn’t a few bad people; it’s us.
The events of the last week (and those that preceded them) illustrate how far we have to go as a culture to stop the pattern of violence toward vulnerable people, including women, women of color, and our queer and gender non-conforming family.
To understand the dynamics of sexual violence writ large, we must address the causes and conditions that create harm, the people and systems that ignore and excuse it, and the factors that uphold it.
This means examining deeply the infinite agreements that shape it, the defensive structures that support it, and the roles each of us plays in its longevity.
There are several levels of aggression that maintain gender-based violence and sexual assault.
There are the primary perpetrators, the ones who commit the assault.
There are the secondary perpetrators, those who know about it but who are in denial (or delusion) and pretend they don't know—or who actively protect the abuser. Consider the many people who observed Combs’s behavior and didn’t speak out, and the hotel executives who made the decision to sell him the video that offered proof.
And then there are the tertiary perpetrators, who enable and reinforce and praise the behavior of the primary and secondary perpetrators. Think friends, colleagues, family members.
And there’s the social connective tissue of violence. This includes white supremacy and the epigenetic (and historical trauma) it engenders, which can lead a community to pressure Black women to protect Black men from the brutality of the criminal justice system by not reporting sexual and domestic violence.
All these factors unite to protect and reinforce racial, sexual, gender, and other forms of violence and abuse of power, like white supremacy and racial capitalism.
The Importance of Suspending Disbelief
This week, I thought back to the media’s response to the U.S. Senate confirmation hearings for Supreme Court Justice Brett Kavanaugh.
Longtime conservative New York Times columnist Bret Stephens penned an article about the hearings with the poorly chosen title “For Once, I’m Grateful for Trump.”
In the article, Stephens expressed his relief that Trump was “protecting our sons and fathers” by his public statements in support of Cavanaugh.
Stephens wrote (and please attend to the CW for misinformation, “False allegations of rape, while relatively rare, are at least five times as common as false accusations of other types of crime, according to academic literature.”
Most lay people have access to abstracts rather than full journal articles; this makes it difficult for most to review research with a critical eye. However, in the original study from which Stephens drew his conclusions, the authors stated that 5% of assault claims are retracted by the complainant, while a full 5% are determined to be false by the police. Neither form of retraction should be taken to mean that the accusations are false.
What’s more, law enforcement plays a significant role in determining the legitimacy of sexual assault reports as well as their outcome.
Evidence suggests that police offers dismiss charges in order to reduce their backlog of cases. A commonly cited 2010 study published in the international journal Violence Against Women addresses this issue.
In the study, the researchers used a meta-analysis to evaluate over 20 other studies.
They concluded that most studies misrepresent the rate of false reporting by not taking into account police departments' errors.
The researchers also conducted their own study based on 10 years of reports at a single university (a rare level of scholaship in a field that relies on Federal Bureau of Investigation data). Their study placed the rate of false reporting at just under 6 percent.
Study author David Lisak concluded,
“The greater the scrutiny applied to police classifications, the lower the rate of false reporting. Cumulatively, these findings contradict the still widely promulgated stereotype that false rape allegations are a common occurrence."
When bandied about, particularly by men in power and their enablers, this and other untruths about the alleged frequency of false claims increase the burden of proof for survivors, making it more difficult for us both to come forward and to be believed.
The Dehumanization of Survivors
This week, I happened upon a blog written by an attorney who represents people (mostly men) accused of sexual assault. He offered ten steps toward defending oneself against such claims. So dehumanizing was his defense strategy that his words stopped me in my tracks:
“Lawyers and judges who work in the system every day have a habit, simply as a sort of verbal short hand, of referring to individuals not by name but as the “victim” or the “defendant”—even before a person’s guilt or innocence has been established.
Your attorney should humanize you as an individual. Never let your attorney refer to you as his client, or the defendant. You are Mr./Ms. and your last name, or you are referred to by your first name. The jury needs to understand that if they find you guilty, they are affecting the life of a real person with a real identity beyond someone who is simply the “defendant.”
Alternatively, do not recognize the child as a “victim.” Do not—I repeat do not—call the child the victim or even the “alleged victim.” I believe this sends a powerful message to the jury. If they hear the term victim repeated enough they will eventually come to view the child as “the victim.” I would not even refer to the child as “the child.” The attorney should refer to the child as ‘the accuser’ whenever possible as opposed to using the child’s name. If you are testifying, it would seem unnatural and seem coached for you to say accuser, so you should use the child’s name.“
Just to make sure we understand” this lawyer advises attorneys to address accused sexual perpetrators by name, while dehumanizing children by using the adultified term “the accuser.”
What, then, does he do to dehumanize adult survivors of sexual assault?
New York Times columnist Bret Stephens and the attorney quoted directly above are tertiary perpetrators.
Sexual violence and the practices that support it shape not just survivors but our entire social system in a kind of biological, psychological, and social plasticity.
Our actions and non-actions affect the way we treat survivors, how we express power, the personal and social relationships we have with the body and its intelligence, who determines the burden of proof and whose shoulders it rests on, how we adjudicate sexual violence, and whether we pass on legacies of repression, denial, and abuse to future generations.
Sources:
As many as 60 percent of Black women experience coercive sexual contact: Home—Ujima. (n.d.). Retrieved May 22, 2024, from https://ujimacommunity.org/
And Native women are up to 3.5 times more likely to experience sexual assault: Ending Violence Against Native Women | Indian Law Resource Center. (n.d.). Retrieved May 22, 2024, from https://indianlaw.org/issue/ending-violence-against-native-women
A blend of the words misogyny and the French noir, the term refers to: Definition of MISOGYNOIR. (n.d.). Retrieved May 21, 2024, from https://www.merriam-webster.com/dictionary/misogynoir
In the article, Stephens expresses his relief that Trump is “protecting our sons and fathers: Stephens, B. (2018, October 4). Opinion | For Once, I’m Grateful for Trump. The New York Times. https://www.nytimes.com/2018/10/04/opinion/trump-kavanaugh-ford-allegations.html
However, in the original study from which Stephens drew his conclusions: Moon, E. (2018, October 7). False Reports of Sexual Assault Are Rare. But Why Is There So Little Reliable Data About Them? Pacific Standard. https://psmag.com/news/false-reports-of-sexual-assault-are-rare-but-why-is-there-so-little-reliable-data-about-them
A commonly cited 2010 study published in the international journal Violence Against Women: Lisak, D., Gardinier, L., Nicksa, S. C., & Cote, A. M. (2010). False allegations of sexual assualt: An analysis of ten years of reported cases. Violence Against Women, 16(12), 1318–1334. https://doi.org/10.1177/1077801210387747
This week, I happened upon a blog written by an attorney who represents: Defending Child Sex Abuse Allegations—Nashville Sex Crime Lawyer | Horst Law. (n.d.). Retrieved May 20, 2024, from https://www.criminalattorneysnashville.com/articles-by-brent/10-tips-maybe-eleven-for-defending-child-sex-abuse-allegations/, https://www.criminalattorneysnashville.com/articles-by-brent/10-tips-maybe-eleven-for-defending-child-sex-abuse-allegations/
thank you as always for your voice, Bo. i'm catching up with whole bodied intention on this beloved page and your words are felt. so much love and care 💜
Bo this is so informative (and brilliant) thank you. I'll be taking it back to our Anti Sexual Harassment workgroup in the UK's Yoga Teacher's Union that addresses power structures, along with sexual violence and predatory behaviour in our places of work as Yoga Teachers.
Also, not sure if you're aware of the court reporter and writer Lucia Osborne-Crowley? Her next book is called the Lasting Harm and is about the Ghislaine Maxwell trail and centres the stories of four women and their testimonies.