More bad news about rape

In my round-up of 2019 I chose ‘rape’ and ‘rapist’ as my Words of the Year—partly as a protest against the way those words are avoided in many public discussions of sexual violence, and partly as a tribute to the women in Spain, Chile and elsewhere who used them so powerfully in public protests. I predicted that this story would continue in 2020, and sure enough, it has.

The Chilean anthem ‘Un violador en tu camino’ (‘A rapist in your path’) was performed again last week, in both Spanish and English, outside the New York City courtroom where the trial of Harvey Weinstein has now begun. In New York he is on trial for rape and sexual assault, and he has just been charged with the same offences in Los Angeles, where prosecutors reportedly considered bringing criminal charges in relation to eight different women’s complaints. In New York there are two complainants, but the court will hear supporting testimony from at least one woman whose case can’t be prosecuted because the events took place too long ago. Complaints that could potentially lead to further charges, including rape charges, have also been made in Britain and France.

In the light of all this, it is hardly controversial to refer to Harvey Weinstein as an ‘alleged rapist’. Yet on January 6, a report on BBC Radio prompted Sophie Walker to tweet:

Hey @BBCRadio4 there’s a clear, short word that you’re overlooking every time your journalist refers to allegations of ‘non-consensual sex’ against #HarveyWeinstein. Please use it. #rape

One reply to this tweet, from someone whose bio identified him as a journalism student, said: ‘I think they’re tied legally to not use the word rape. Frustrating but it could impact the case against Mr Weinstein’. I’ve seen this argument being made in other cases: it seems to be an increasingly widespread belief that using the word ‘rape’ (even qualified with ‘alleged’) before there has been a conviction is in itself prejudicial, and that its avoidance is legally required.

But this is a misconception. ‘The case against Mr Weinstein’ is, precisely, the case that he has committed what the laws of the state of New York define as the criminal offence of rape. That is what he is on trial for. So long as the media do not say or imply that he is guilty, it surely cannot be prejudicial for them to describe his alleged offence using the same word that appears on the indictment. On the contrary, if their job is to report the facts, there is no justification for not using that word. Substituting less ‘emotive’ terms implies a judgment which it is not their place to make.

The BBC has not consistently avoided the word ‘rape’ in its coverage of the Weinstein case. In a detailed timeline published on its website that word is used many times—it appears in every instance where a complainant has alleged that Weinstein raped or attempted to rape her. However, the piece does use the term ‘non-consensual sex’ when reporting statements made by Weinstein or his representatives. For instance, in relation to a rape allegation made by Rose McGowan in 2017, it says that ‘Weinstein has “unequivocally denied” any allegations of non-consensual sex in a statement released through his publicist’.

The placement of quotation marks here implies that ‘unequivocally denied’ is the only verbatim quote from the statement, but the fact that ‘non-consensual sex’ always appears in reference to Weinstein’s denials suggests that this phrase may also have been taken from that source. Either way, it raises questions. If the BBC is reproducing the language of the statement (without making that clear by putting the whole thing in quotation marks), does that give an accused rapist too much influence over the terms in which his case is reported? If ‘non-consensual sex’ is the BBC’s own wording, what’s the thinking behind that editorial choice?

Maybe they think it makes no difference, because (at least in jurisdictions which treat the absence of consent as a defining feature of the offence), ‘non-consensual sex’ means the same thing as ‘rape/sexual assault’. But I suspect Donna Rotunno, the lawyer in charge of Weinstein’s defence, knows better. Rotunno told an interviewer last September (as quoted in another piece on the BBC website) that

Any time we talk about men and women in sexual circumstances, I think we have to look at the fact that there’s always an area of grey. So there are these blurred lines, and I think sometimes one side walks away from an event feeling different from the other.

I think Rotunno understands why using ‘non-consensual sex’ rather than ‘rape’ (even when the message is that your client ‘unequivocally denies’ it) does make a difference. It’s not just that ‘rape’ is an emotive term. When you avoid what seems like the obvious word to use in a particular context, that prompts the recipient of the message to look for some unstated proposition that would explain the avoidance. In this case the conclusion a lot of people will come to is the one Rotunno spells out in the remarks just quoted, that there are ‘grey areas’ and ‘blurred lines’; it is possible for sex to be in some sense ‘non-consensual’ while still not quite counting as rape. For instance, it remains a widespread view that if a woman didn’t communicate her refusal clearly, the man can’t be blamed for (wrongly) thinking she consented. Maybe he’s obtuse but he’s not a rapist.

This is a belief Rotunno has clearly set out to foster in her presentation of her client, making a number of statements to the effect that his behaviour, though perhaps morally questionable, falls ultimately on the legal side of the line. (‘I’m not here to say he was not guilty of committing sins, but there’s a difference between sins and crimes’.) And it can only help her cause if the media use phraseology that supports this thesis.

There are worse offenders than the BBC. Rotunno has attracted a lot of media attention, not only because there’s so much interest in the case, but also because a woman defending someone like Harvey Weinstein is newsworthy in her own right (as Grazia put it, she’s ‘someone many are curious to get to know’). In profiles and other ‘soft’ pieces she’s been able to make controversial statements about Weinstein’s accusers without being seriously challenged. But while the BBC may not have given that kind of platform to people on Weinstein’s payroll, it still needs to think carefully about the way interested parties may be actively trying to manipulate the terms in which a story is reported.

This is not the only recent instance where the BBC has used questionable language. It has also done so in its reporting of the case of a young British woman who reported that she had been raped by a group of twelve young Israeli men in Ayia Napa, Cyprus. Later, following a lengthy police interrogation conducted without a lawyer present, the woman signed a statement retracting her original report. The men she had accused were allowed to leave Cyprus, while she was put on trial for causing ‘public mischief’, and eventually given a (suspended) sentence of four months in prison.

This case has prompted concern because there are reasons to think the woman’s rights may have been violated. She herself maintains that her retraction statement was dictated to her by the police, and that she signed it under duress. A forensic linguist who has analysed the statement believes it was composed by someone whose first language was not English. This linguist, Andrea Nini, was interviewed on the BBC’s Victoria Derbyshire programme last week. In a clip from the interview which was tweeted out from the programme’s account, you can see a ribbon at the bottom of the screen reporting on a rally which had been organised to support the woman and protest her treatment by the authorities. The caption reads: ‘Rally in support of woman in Cyprus “rape” case’.

What is going on with those scare quotes around the word ‘rape’?

My guess is that the formulation ‘Cyprus “rape” case’ was meant to convey a neutral or non-committal stance on the question of whether the woman had been raped. Since her allegation remains unproven, because the suspects were released without trial—but at the same time, the finding that she lied can no longer be considered definitive because of evidence that casts doubt on the authenticity of her retraction statement—the caption writer may been looking for a form of words that would not commit the BBC to either of the two competing narratives (that the woman was raped and then forced to retract her complaint, or that the original allegation was false).

But if that was the objective, putting ‘rape’ in scare quotes did not achieve it. Scare quotes are a distancing device, a signal that whatever the quote marks enclose should not be taken at face value. But the stance their use conveys is not agnosticism or lack of certainty, it is scepticism or disbelief. (Scare quotes can also signal irony or mockery, but in relation to rape that’s a less likely interpretation.) So, while it may not have been intentional, the caption’s reference to the ‘Cyprus “rape” case’ is likely to have been taken as supporting the false allegation narrative.

Perhaps the caption could have referred to the ‘Cyprus rape controversy’: that’s compatible with the understanding that the facts are disputed, but it doesn’t suggest the BBC itself is taking sides. However, in this context I don’t think it would have been unreasonable to use the phrase ‘rape case’ without scare-quotes. ‘Rape case’ does not just have the meaning ‘court case in which someone has been found guilty of rape’, and we really need to push back against the idea that the word can only be used in that very narrow sense. Those who think its use should be restricted in this way may be sincerely concerned about protecting defendants’ right to a fair trial, but they seem to have difficulty grasping the point that reports which systematically avoid the word ‘rape’, put it in scare quotes or replace it with euphemisms, are not just neutral and inconsequential.

As the Glasgow Media Group long ago pointed out in an analysis of the reporting of industrial disputes (where it was always the management who made ‘offers’ while the unions made ‘demands’ or ‘threats’), the repetition of certain formulas over time tends to normalise their underlying assumptions. What is normalised by the repeated avoidance of the word ‘rape’ is the assumption that complainants’ accounts should be approached with extreme suspicion. And according to this in-depth investigation, that suspicion—the author calls it an ‘epidemic of disbelief’–is the single most important reason why so many rapists are never brought to justice.

This doesn’t just harm individual complainants. If we as a society have an interest in seeing rapists brought to justice, reporting that normalises disbelief cannot be said to serve the public interest. The BBC is not the only or the worst offender, but as a public service broadcaster it should arguably be setting a higher standard. When the story is sexual violence, it really needs to sort its language out.