#MeToo: Retribution, Accountability, and Justice

Josh Landy
How do we achieve justice for victims of sexual assault?

Ray Briggs
Can we change the legal system to make it more effective?

Josh Landy
Or should we turn to social media instead?

Ray Briggs
Welcome to Philosophy Talk, the program that questions everything

Josh Landy
except your intelligence. I’m Josh Landy.

Ray Briggs
And I’m Ray Briggs, we’re coming to you via the studios of KALW San Francisco Bay Area,

Josh Landy
continuing conversations that begin at philosophers corner on the Stanford campus where Ray teaches philosophy and I direct the philosophy and literature initiative.

Ray Briggs
Today we’re thinking about accountability and justice in the #MeToo movement.

Josh Landy
I’m really glad to see the #MeToo movement finally getting more press, Ray. You know, I hadn’t realized that Tarana Burke started it all the way back in 2006. I mean, that’s a long time ago.

Ray Briggs
Yeah. And then it didn’t get a whole lot of mainstream attention until more than a decade later. And that’s when Hollywood actresses started to come forward after famous men sexually abused them. It really goes to show how far we have to go as a society just in terms of taking victims seriously.

Josh Landy
Especially with those victims are just regular folks and not Hollywood stars, we really need to start treating sexual crimes like crimes.

Ray Briggs
I don’t know, like, that sounds really good in theory, but I just don’t trust the legal system. Going to the police and telling a courtroom full of people about how somebody assaulted you? I mean, that can just be an incredibly harrowing process. And then people might not believe yo,u or worse, they might even blame you.

Josh Landy
But isn’t it really important to bring offenders to justice?

Ray Briggs
It is, but that usually doesn’t happen. They mostly get away with it. And sometimes they’ll even retaliate.

Josh Landy
I mean, I agree that the system needs to change. But the good news is, some of that’s happening already, right? Lots of people already working to change the system. We’re seeing more conviction. We’re seeing more proposals for new laws.

Ray Briggs
Yeah, but things are still moving way too slowly. Judges and juries are still buying into all these dangerous myths like boys will be boys or women are asking for it.

Josh Landy
Well, that’s why we have to keep fighting for change. But feminist legal scholars have already made a big difference. A lot of jurisdictions have rape shield laws to prevent lawyers and judges from using a victim’s sexual history against them, and there are mandatory minimum sentences, making sure judges take serious crimes seriously.

Ray Briggs
Yeah, some of those changes are really good, but actually, I think some of them are counterproductive. Too many Black and indigenous people are in prison already. And having harsh legal punishments just adds to the problem, even when the crimes really deserve to be taken seriously. I just don’t think throwing people in jail is going to be the answer to all of our problems.

Josh Landy
I’m not saying the legal system is perfect. But don’t we need to do something to hold perpetrators accountable?

Ray Briggs
Well, how about calling them out on social media? That gives the victims the power to defend themselves instead of forcing them to rely on a broken system.

Josh Landy
But social media casts a really wide net. Anybody can get named and shamed on Twitter, not just people who did something wrong.

Ray Briggs
Yeah, well, that’s true of the legal system too. I mean, nothing is foolproof.

Josh Landy
Okay, but at least the legal system has safeguards and due process, isn’t that better than like sticking an electronic mob on people with the virtual pitchforks and iPhone flashlights?

Ray Briggs
Yeah, that’s a fair point. I see why you might not want to use social shaming to punish perpetrators. But you know, you can also use social media to help potential victims. Giving people information about predators in their midst is a great way to keep them safe when the system won’t.

Josh Landy
Yeah, that’s a great point. And I’ll bet our guest has more to say about it. It’s Janine Benedet from the University of British Columbia. She’s an expert on laws governing sexual misconduct.

Ray Briggs
And of course, the law isn’t our only tool for dealing with sexual violence. We sent our Roving Philosophical Reporter Holly J. McDede to find out how the COVID pandemic has pushed high school students to launch their own #MeToo movement from home. She files this report.

Holly McDede
At Berkeley High School in California, the movement to address sexual assault can be traced to bathroom stalls. It was there that Annette Kwon joined her classmates in February 2020 to scribble the names of alleged perpetrators.

Annette Kwon
It was pretty much all of us looking out for each other because some of the boys were also the ones who had been reported to the school already, but nothing had been done.

Holly McDede
The names were written with a marker under the words “boys to watch out for.” Students said that many on the list had reputations for inappropriate behavior around young women.

Annette Kwon
Pretty much it would just be wiped off immediately during that period or afterwards, and people would just keep writing it since they kept erasing it.

Holly McDede
Students had to walk out to demand the school to take action to address assault on campus. But just weeks later, school shut down because of the pandemic.

Annette Kwon
Once quarantine started, everything died down. And I just felt like it was necessary that the topic stays relevant. Because if it had faded out once again, nothing would change.

Holly McDede
So that summer, Kwon made a TikTok video that showed the faces of alleged perpetrators from Berkeley High and elsewhere. The video got over 100,000 views, but Kwon took it down after she was threatened with a lawsuit.

Annette Kwon
The way that I approached this might not have been the best solution, but I think it was the most that I could have done in that situation.

Deborah Tuerkheimer
So many survivors are finding that rather than do nothing, and rather than turn to systems that continue to fail them, they would prefer to disclose unofficially, informally through social media.

Holly McDede
Deborah Tuerkheimer is a former prosecutor and author of the book “Credible: Why We Doubt Accusers and Protect Abusers.”

Annette Kwon
The costs of belief are pretty low in the setting, right. And so the flip side of turning to these unofficial channels is that we’re not seeing a whole lot of accountability.

Holly McDede
It’s easy to like a post on social media and move on. In her book Tuerkheimer writes that if we want to dress failures in the legal system, we need to change how we view credibility because she says so often, survivors are disbelieved or dismissed when they are simply asking for support. That’s especially true for Black women.

Annette Kwon
And so if we decide we’re only going to act if we’ve got this beyond a reasonable doubt standard, the kinds of evidence that would lead to a criminal conviction, we probably are going to be stuck in a permanent state of equipoise. And we say I just don’t know, this is a he said, she said, I’m not going to do anything, which of course, means the accused man wins the day.

Holly McDede
In the summer of 2020, students across the country set up Instagram accounts to share experiences of abuse. One of the goals was to change that narrative. They wanted to show victims they believe them, and that their stories mattered. One of those accounts, @DearSFUSD, was set up for San Francisco students.

Tiven Parker
I don’t think any of this would have happened if it wasn’t for the pandemic.

Holly McDede
That’s Tiven Parker, one of the former moderators of the account.

Tiven Parker
Because bullying is still a real thing. And if you talk about something so honest and in so much detail on Instagram, you have to go to school the next day.

Holly McDede
Parker remembers seeing a former longtime friend accused of sexual harassment.

Tiven Parker
It was heartbreaking that somebody I knew, the fact that I thought I knew them, and I thought I knew everything about them.

Holly McDede
She said that account became a platform to spread awareness and educate each other about consent. It was not about retribution or cancel culture. Students hoped the story shared online would also send a message to the school district to take these issues seriously.

Tiven Parker
Hopefully, they are considering it. And they are seeing that if a group of students can come together and find solutions and raise awareness, then they can too. And they’re the ones with the power right now. We spoke up about it and now it’s their turn.

Holly McDede
In response to the activism at Berkeley High ,the school adopted several changes. For example, they started a committee made up mostly of students to give input on consent education. And now many of the students who launched these efforts online are back on campus, where they hope the conversation could continue in person. For Philosophy Talk, I’m Holly J. McDede.

Josh Landy
Here’s hoping, thanks for that inspiring report. Holly. I’m Josh Landy, with me as my Stanford colleague Ray Briggs, and today we’re thinking about justice and the #MeToo movement.

Ray Briggs
We’re joined now by Janine Benedet. She is Professor of Law at the University of British Columbia, and she writes extensively about sexual misconduct in the law. Janine, welcome to Philosophy Talk.

Janine Benedet
Thank you for having me.

Josh Landy
So Janine, you’re a legal scholar, but you also do pro bono work as a lawyer representing women’s groups. So tell us how did you first start doing that pro bono work?

Janine Benedet
I suppose I’ve really done some form of pro bono work for several decades now, really, ever since I became interested in sexual violence as an academic subject. And, you know, my work is very much informed by the frontline women’s movement that’s worked so hard to support women through legal processes and to change laws and attitudes around sexual violence. And so it’s important to be engaged with what’s happening on the ground and to do what I can to be involved in cases that, you know, raise some important policy issues around sexual violence.

Ray Briggs
So Janine, the #MeToo movement led to some high profile convictions. But what happens when the victims of sexual misconduct are just ordinary people? Like what are the odds that the perpetrator will be held accountable?

Janine Benedet
Well, if we think of being held accountable as a criminal conviction, the odds are extremely low that a perpetrator of sexual violence is going to be convicted of any kind of crime. The number is less than 1% in both Canada and the United States. Reporting rates are low and there’s real attrition even after the point of reporting to authorities, in terms of cases being screened out and not seeing the light of day. And of course, there are certain groups of victims that are even less likely or encounter more barriers in having their cases heard.

Josh Landy
Is that the case even now? We have mandatory reporting in some cases, so one might think that reporting is up a little bit. But that has not really changed anything?

Janine Benedet
Reporting rates in the United States, at least official reporting rates are quite a bit higher than in Canada. And I think in part that has to do with the fact that for adults, at least, we don’t have any mandatory reporting laws in Canada, but you do in in the United States. But the attrition that happens once, you know police are notified, is really quite dramatic. And cases are screened out by police as unfounded. They’re screened out by prosecutors as simply too difficult, too messy, too weak to ever get a conviction. And then, of course, you have judges and juries who refuse to believe victims when they come forward to court and say that the high standard of proof beyond a reasonable doubt just can’t be met on the evidence that’s available.

Ray Briggs
So Janine, you said that some victims are more likely to get screened out. Which groups of victims are those?

Janine Benedet
Well, I mean, you know, we have this idea of the ideal victim, you know, with her unblemished past and her clear recollection of what happened, she’s not affected by alcohol or drugs at the time of the sexual assault, she’s able to give a clear and coherent narrative that doesn’t vary in any of its, you know, even collateral details, even though it’s a, you know, a highly traumatic event that’s happened to her. And, you know, in many ways that ideal victim is just another myth. Nobody really lives up to that impossible standard. But if you think about it, there are groups who are actually targeted for sexual assault at, you know, even much higher rates than, than women generally, because of their inability to meet that standard, people with intellectual disabilities sexually assaulted at very high rates, because they’re less likely to complain, and less likely to be believed when they do complain. I’ve done research on the sexual assault of older women, including, you know, women with dementia and other forms of cognitive impairment in residential care, who were sexually assaulted by staff or other residents and who aren’t able to testify in court at all. And sometimes those victims are really not part of any kind of #MeToo conversation.

Josh Landy
You’re listening to Philosophy Talk. Today, we’re thinking about justice and the #MeToo movement with Janine Benedet from the UBC Law School.

Ray Briggs
How can the legal system get better at helping victims of sexual misconduct? Why is it so hard to hold perpetrators accountable? Do mandatory minimum sentences help or hurt the cause of justice?

Josh Landy
Gender, justice, and the law, along with your comments and questions when Philosophy Talk continues.

How long are we gonna keep saying boys will be boys? I’m Josh Landy, this is Philosophy Talk, the program that questions everything

Ray Briggs
except your intelligence. I’m Ray Briggs, and we’re thinking about justice in the #MeToo movement with Janine Benedet from the University of British Columbia.

Josh Landy
We’re pre recording this episode. So unfortunately, we can’t take your phone calls. But you can always email us at comments@philosophytalk.org. Or you can come onto our website. And while you’re there, you can become a subscriber and gain access to our library of more than 500 episodes.

Ray Briggs
So, Janine, you mentioned in the previous segment, that it’s hard for a lot of victims of sexual misconduct to get justice. But some legal scholars are trying to change that. What are the proposed changes to make it easier?

Janine Benedet
Well, there are lots of initiatives that are designed to make the court process more accessible and more open to victims of sexual violence. You mentioned earlier, you know, rules that limit the use of sexual history evidence. There are also provisions that limit the ability to access things like a victim’s counseling records or her school records in an attempt to use for example, a mental health history to undermine her credibility. We’ve also seen a move towards giving victims their own individual legal representation so that they’re not simply a witness for the prosecution, but actually a party to the legal proceeding. And all of these changes, of course, have been resisted. But they’re all attempts to give victims more of a voice in the process.

Josh Landy
Janine, we were talking earlier about that standard of proof that came up also in the Roving Philosophical Report. Is there any push to to change that standard? I mean, you said quite rightly that beyond reasonable doubt standard is a really high one. Is there any move afoot to change that to the preponderance of the evidence or some other standard?

Janine Benedet
It’s a good question. And it’s one that, you know, I’ve heard raised before, can we shift the burden of proof onto the accused? Or can we lower the burden of proof in some way? These are criminal convictions, they’re criminal convictions that carry with them the potential for a deprivation of liberty for a criminal record, and it seems odd that we would single out one criminal offense and lower that standard of proof. You, in fact, run into constitutional problems iff you do that. You know, there are constitutional protections for the presumption of innocence and the idea that the state needs to meet a really high standard of proof before someone’s liberty is taken away. So I’m skeptical that that’s really the path that we ought to pursue. Now, you can of course, bring a civil lawsuit for sexual battery, it has different names in different jurisdictions. And there the standard of proof is lower it is the preponderance of the evidence or the balance of probabilities.

Ray Briggs
So Janine, I have a kind of big picture question that I’ve been worrying about, which is where we’re talking sometimes, like victims of rape and sexual assault are always women and girls, and people who perpetrate these crimes are always men and boys, and like there is a very gendered character to them. But I also like, how do I acknowledge both that these are kind of crimes of misogynistic violence a lot of the time and also that, like a victim or a perpetrator can be of any gender potentially?

Janine Benedet
Well, yes. And there’s no reason that both of those things can’t be true at the same time. The reality is that in every kind of research I’ve ever seen in any jurisdiction, the overwhelming majority of perpetrators of sexual violence are men. But it’s true. Not all of their victims are women and girls. We focus on that because it is so pervasive, and it’s so defining for the lives of many women and girls starting from a very young age. But the reality is that victims can certainly be of any gender. And there are some cases, a very small number of cases involving women perpetrators, although those numbers particularly for adult victims are extremely small.

Josh Landy
Yeah, so we’ve talked about a few different proposals for moving things forward to increase the rate of conviction for perpetrators. So you have mandatory reporting, lawyers for victims, ruling out using sexual history as evidence. What about the changing the definition of consent? And that’s happened in some jurisdictions, moving to an affirmative consent definition of what consent actually means. Could you say a little bit about that? What that means? And how widespread that is? What do you think it’s a good thing? What do you think it’s actually going to have an impact?

Janine Benedet
It’s really had an impact for groups of victims who might not again, be able to meet this traditional stereotype of how a victim is expected to behave. And so for a very long time, our idea of non consent meant physical resistance. And we had that written right into the law, we had requirements for proof of corroboration, you had to show injuries and broken bones or torn clothing. And that would prove that you were really raped because anybody who was really being raped would fight back. And so that model over time has weakened, but there’s still an expectation in many jurisdictions of at least some form of verbal resistance, or objection. And if you think about it, that kind of model basically says that we’re all walking around in a state of perpetual consent to anyone until we say no. And so an affirmative consent model really flips that on its head, it says no, until there’s some evidence of a yes, we’re going to assume that you were not consenting. And so it can be quite powerful, especially in situations where there is a big imbalance of power between the perpetrator and the victim. And there might be some kind of compliance or acquiescence, but no real consent.

Ray Briggs
It seems very strange to have resistance be part of your requirement for non consent if you compare it to other crimes. So you’re not allowed to come up and stab me. Like, just because I didn’t say don’t stab me or fight back hard enough. You’re just supposed to not do that.

Janine Benedet
That’s right. And you can imagine, I mean, we were talking about, you know, victims who are not women and girls, how difficult it has been for male victims of sexual assault, to come up against that stereotype that any man who was being sexually assaulted by another man would, of course, respond with violence and fight back and use physical force. And so there are ways in which that stereotype of fighting back has an even more pernicious impact on male victims and makes it very difficult for them to come forward. Because often, you know, victims just freeze or they’re afraid, and they just want to get it over with and those are entirely valid and normal responses to being confronted with sexual violence. It doesn’t matter what your, you know, your gender or sexual orientation might be.

Josh Landy
So one way I’ve seen this shift to an affirmative consent model phrased is the you know, the old model was that the default was consent, and the victim had to prove there was resistance. And the new model is the default is non consent, and the accused has to prove that there was consent. Is that about right?

Janine Benedet
I think that misunderstands the burden of proof, the burden is still on the state, it’s still on the prosecution. But what the state has to prove is that the victim didn’t want this sexual activity to take place. That’s the legal phrasing that we use in Canada. And we have what is typically described as an affirmative consent model. So the focus is on the victim’s subjective state of mind, it still has to be proven by the state beyond a reasonable doubt, it’s still open to the defense to point to things that the complainant did or said, the victim did or said, that contradict her claim that she didn’t want the sexual contact to take place. But at the end of the day, that’s the question we’re trying to answer. And the focus is on what she did or said, not what she didn’t do, or what she failed to say, which has so often been the focus in the past.

Ray Briggs
You’re listening to Philosophy Talk. Today, we’re thinking about justice in the #MeToo movement with Janine Benedet from the UBC School of Law. So Janine, I wanted to ask about a proposal by the San Francisco DA that’s been in the news lately, which is to stop rape kits being used against victims to pursue them for unrelated crime. This, which sort of highlights I guess, that this was an issue in the first place and a barrier to victims coming forward. Can you speak to that issue?

Janine Benedet
That’s really interesting. So if I understand what you’re referring to, the idea is that DNA evidence or other evidence that’s collected from doing a sexual assault examination may be evidence of drug use is then used to charge the victim. Is that the practice that?

Ray Briggs
Yes, yeah. So actually looking at the details of this case, the victim was charged with a property crime. And the article I’ve got doesn’t say what the property crime was, but I’m not sure it was a drug crime.

Janine Benedet
I suppose I’m a little bit speechless that that’s even going on. You know, it’s an incredibly invasive process to have to go through. In many cases, victims of sexual violence are put through sexual assault forensic examinations for no discernible evidentiary purpose, the perpetrator is known to them. And this evidence actually serves no real function. And so it can sometimes be a real deterrent. Sometimes it’s incredibly helpful when the perpetrator is a stranger. But you know, that’s a small, small minority of cases. And so I’m kind of astounded at one level, that that kind of behavior has been happening and it ought to stop immediately. But I suppose in another way, I’m not really that surprised. I mean, we’ve seen in jurisdictions, for example, women charged with offenses, if the police decide that their complaint of sexual violence is unfounded. They’re sometimes then charged with kind of public mischief offenses or obstruction of justice offenses, and we need to do everything we can to just stop that. Some universities for example, you know, have said explicitly in their sexual misconduct policies, that if you come forward to complain of sexual misconduct, and at the time the sexual misconduct took place, you were breaking some kind of campus rule, maybe you were using drugs in your dorm room, that you’re not going to suffer any consequences for reporting because that’s been a concern that students have raised.

Josh Landy
Janine, we’ve got a comment from Shaheed, on our website, Shaheed says we need to help survivors to feel safer and more supported. This will encourage more people to come forward and identify the perpetrators of sexual violence. So that seems to go along with some things that you were saying earlier about, for example, appointing a lawyer for complainant. Any other thoughts about how we can do that? How can we help survivors to feel safer and more supportive?

Janine Benedet
You know, no matter what path a survivor of sexual violence chooses, whether it’s a formal legal process, criminal or civil, whether it’s going to social media, and talking about their experiences, you have to expect that there’s a potential for retaliation, there is a potential for backlash. And so it’s really, really important to have some support, to have some allies. And maybe that’s a lawyer in a formal legal process. Maybe it’s a rape crisis center, sexual assault center, women’s center, and the advocates there who can walk with you through that process, and can tell you what to expect. Maybe it’s just a friend or a family member that you can trust as part of this process. And one of the really positive things women report about using social media to report about sexual violence is that it can often build solidarity among the victims who are able to come together to compare their stories and to realize they weren’t the only one, and that it wasn’t their fault. So those are always different ways of supporting victims of sexual violence.

Ray Briggs
A thing that’s come up a couple of times is sort of the cultural narratives we have around rape, and sort of whether women exist in a in a state of like, perpetual consent, or whether you actually have to ask and also like, whether, like rape is the victim’s fault. And it seems like there’s a kind of old, like, way of thinking about what kind of crime rape is where it’s, it’s sort of against whoever is supposed to own a woman because women aren’t people. And there’s this new way of thinking about what kind of crime rape is where it’s like, violating a human being’s boundaries, which is inappropriate. So I think it’s pretty clear from my phrasing of those, which one I think is correct, and which one I think everybody should think is correct. But like, it seems like the old way of thinking is not entirely dead, which disturbs me, how do we like identify it, when it comes out and combat it?

Janine Benedet
You know, part of the movement to rename rape sexual assault really kind of came from that, right? The old feminist slogan was rape is violence, not sex. And to describe it as a form of assault was a way of saying this isn’t some kind of property crime, or it’s not just you know, bad sex that crosses some kind of moral boundary. It’s a form of violence, and it needs to be treated that way. But you’re right, those ideas are, they’re powerful, and they’re long standing, and they have a way of, you know, creeping back into the discourse, that kind of victim blaming the sort of stereotyping that goes on. And they also really stop us from seeing some of the most common forms of sexual violence that don’t really, you know, come up in the script at all. And so, you know, you’ve been focusing on teenage girls experiencing sexual harassment and assault by peers. But the reality is, teenage girls are far far more likely to be sexually assaulted by adult men from within their own families. And so what’s our understanding of what’s going on there? How do we understand the kind of crime that’s being committed in that context? I mean, you know, we have this really unfortunate saying of boys will be boys. Well, is it uncles will be uncles and dads will be dads, you know? What is mean to look like within the family within the patriarchal family? And how might we dismantle it? So we’ve got a long way to go in the kinds of conversations we could be having.

Josh Landy
I agree. I mean, is there anything in particular, you would recommend there so that specifically for abuse within families, are there any legal remedies? Are there any cultural changes that you could imagine on the horizon?

Janine Benedet
Well, first of all, you can imagine that the criminal trial process is not really designed with an adolescent witness in mind, you know, if you’re at a stage in your development, where most of the time you, you know, look at the floor and answer questions with two word answers, you make a terrible witness. And so we need to think about, you know, what is it that a criminal trial actually has to look like, in order to make sure that the accused is getting due process? And which of the kinds of really hostile, unwelcoming features of that process don’t need to be there at all? Can the victim testify from a much more comfortable location by video or CCTV? So, you know, can she have a support person with her? You know, can there be an intermediary that helps if the questions are too complicated or, or otherwise confusing? And so these are all, you know, factors that different jurisdictions are thinking about and talking about. And also we have to think about what the cost is, you know, it’s one thing to come forward and to report, a boyfriend or to report an acquaintance, a classmate for sexual assault. But what happens if the person you’re reporting lives with you? You know, what does that mean for your family? And are we prepared to support you? And not to blame you for somehow being responsible for destroying your own family unit, as we so often see, in those cases.

Josh Landy
You’re listening to Philosophy Talk. Today, we’re thinking about retribution, accountability and justice in the #MeToo movement with Janine Benedet from the UBC School of Law

Ray Briggs
How can we change society to prevent sexual assault? Will rape someday be a thing of the past? What if we built a world that respected everyone’s sexual autonomy?

Josh Landy
Building a better future plus commentary from Ian Schoales, the Sixty-Second Philosopher when Philosophy Talk continues.

When will women stop having to be afraid? I’m Josh Landy. And this is Philosophy Talk, the program that questions everything

Ray Briggs
except your intelligence. I’m Ray Briggs. Our guest is Janine Benedet from the University of British Columbia. And we’re thinking about justice and the #MeToo movement.

Josh Landy
So Janine, we’ve been talking about how to respond after sexual misconduct occurs. But what can we do to stop it from being so pervasive in the first place?

Janine Benedet
It’s a really interesting and difficult question. And, you know, one sort of principle that I tried to draw on is that we have to be really careful that we’re not sort of privatizing the responsibility for preventing sexual violence, it’s a state responsibility at many levels. And we can’t simply abandon that aspect of it, you know, I, I give my students in my sexual assault seminar, a really sort of striking pamphlet from a group that was called Bay Area Women Against Rape. It’s from the San Francisco area from the early 1970s. And it’s a list of things that women can do to prevent rape. And it’s everything from wearing your hair tied back to not wearing high heeled shoes to carrying a plastic lemon full of lemon juice so that you can squirt it in the assailants’ eyes. And, you know, it was a model that was really based on the idea that rapists were strangers, and it was your job to kind of curtail your own liberty in order to prevent being raped. And we now know there are two things wrong with that, right. The first is that most of the time sexual assaults are committed by people that you know, and so you can’t carry a lemon around to use against your classmates or your family members. And the other thing, of course, that’s wrong with it is that it’s somehow your responsibility, that you have to diminish your own life in order to prevent sexual assault. So I do think that the move to thinking about this as a state responsibility to interfere with sexual violence is a really, really important one, and accountability seeing that offenders are punished and that even the most powerful man even if you’re a Hollywood producer, or a prince, there will still be some consequences for your behavior, actually has a real deterrent effect.

Ray Briggs
I completely agree with your thought that it shouldn’t all be on victims or really any of it be on victims and it and that the state is a really powerful tool. And I also wonder about other aspects of society. So it seems like there are things that we can do individually just to change our culture like if your friend makes a gross joke about rape, don’t laugh and tell your friend that it is unacceptable. And also I kind of wonder about the power of social institutions that support vulnerable people and being able to walk away from an abusive situation. And the importance of those, not all of which are the law.

Janine Benedet
That I mean, that last point is really huge. You know, if, if someone doesn’t have the ability to extricate themselves from a situation of abuse, all of the slogans and protests and hashtags in the world, are really not very meaningful for them in concrete terms. And we know that for intimate partner violence, we know that that’s why, you know, individuals keep going back to intimate relationships that are harmful is often for very concrete reasons of being unable to support themselves and extricate themselves from those situations. And the same thing is true of sexual violence, if you don’t have good guaranteed income supports, if people with disabilities aren’t given the ability to live independently in the community with appropriate support, if they’re isolated, then you have conditions in which sexual violence can flourish. So that is really an important part of the conversation and bolstering those institutions that support survivors can be really effective. The other side of it, I suppose, are dismantling institutions or disrupting institutions that really promote rape culture, and that feed that kind of narrative. And so that’s also a part of thinking about the kind of culture we want to construct.

Josh Landy
I also wonder about something we heard about in the Roving Philosophical Report, the the students at Berkeley High School, warning their fellow students about dangerous individuals. And of course, we see the same thing in social media. What do you think about that? Obviously, there are pros and cons. But you know, if the law really isn’t doing everything we need it to for the reasons that you mentioned, is this a good workaround?

Janine Benedet
Well, one of the things that can be enormously powerful about that kind of intervention is that it really puts to rest some of the myths around victims of women in particular, being gold diggers, who are simply out to get a big, you know, payday from a lawsuit or vindictive and spiteful and trying to send someone to jail, because, you know, they’ve been rejected or scorned, all of those kind of old, sexist myths and stereotypes. If all you’re doing is naming on social media, someone who has done wrong to you, you’re describing what happened, and you’re using that as a way to warn others, it’s a very altruistic kind of act, right? It’s much harder to label you as, as operating from any of those kind of really, you know, sexist motives that we’ve heard in the past. And so it can be very useful. But as your segment indicated, there are risks too and we have seen individuals sued for defamation by, by people who say I was named in your account of sexual violence, and I’ve never been convicted by any court. You can’t go around calling me a rapist. And in Canada, we’ve even had people sued who retweeted the initial post, even though they weren’t the victim themselves. And so that’s the way that defamation operates. And even being faced with a defamation suit can, you know, cast a real chill and cause you to take down those posts and not want to go to court and fight it out where you’re going to be expected to effectively prove that you were sexually assaulted and that the label that you’ve applied to this individual iscorrect.

Josh Landy
We’ve got a comment from Harold on our website, Harold writes, as long as people with power see harassment as a perk or privilege of their station, there can be no resolution of this egregious problem. What do you think, Janine? Is there something unique to the situation of the powerful? Can they get away with it more than others? Are there specific things we need to do to make sure that they don’t get away with these kinds of crime?

Janine Benedet
Well, I think there’s no question that impunity breeds entitlement and that if you’re part of an organization or you’re part of an institution, or even just by virtue of the fact that you’re male, or by virtue of the fact that you’re, you know, otherwise privileged in some kind of way, and you see others around you engaging in the same behavior and no consequences flow from it, then yes, there is a sense of entitlement that sometimes comes with that. And, you know that underlines the idea that this is okay, or that it’s at least acceptable or tolerated or that we’re prepared to look the other way. And I think that for, you know, many women, the kind of sort of response to the comments made by former President Trump about grabbing women, you know, were a really good example of that, that there was both kind of horror and condemnation, but no real actual consequence. And so they become a joke that flows from a place of, you know, really extreme entitlement and, and you don’t have to be a rich and powerful individual in the conventional sense. People have power within their own families, they have power by virtue of the job or you know, position that they hold. a teaching assistant has power over the students in their tutorial, even though they might just be a grad student who’s also trying to complete their degree. So power emerges and in all kinds of different settings beyond Hollywood or professional sports or politics.

Ray Briggs
It sounds like power differentials are a recurring theme in sort of who’s vulnerable to rape, and who has trouble getting any kind of accountability for rape. Do you have like a handy summing up of like, what our approach should be to power differentials?

Janine Benedet
Well, we need to recognize that they’re there and that they run along both formal lines. I mean, obviously, a police officer has formal power over someone they’re arresting, but also informal structures of power, that race is a structure of power, that sex and gender are structures of power. And so, you know, even though you say, well, these are two adults who are interacting here, that power can operate in all kinds of ways even outside of those formal relationships. And that often conditions the way that victims respond to sexual violence and the harms that they experience as well. So that needs to be central to the conversation. In Canada, we recognize explicitly, one of the definitions of non consent in our criminal law is that the accused induces the complainant to participate in the sexual activity by abusing a position of trust, power or authority. Many US jurisdictions lists specific kinds of relationships like therapist and client that are seen to be relationships of power where no consent can exist. And I would just say that we need to not be too rigid about what those categories are. And we need to be open to understanding power in in, in all of its dimensions because it plays a central role in facilitating sexual violence.

Josh Landy
I couldn’t agree with you more. Thank you so much for joining us today. Janine.

Janine Benedet
Thank you.

Josh Landy
Our guest has been Janine Benedet, who is professor of law at the University of British Columbia, and who writes extensively about sexual misconduct and the law. So Ray, what are you thinking now?

Ray Briggs
Well, I’ve been reading some books that I think are really good. And I’d like to recommend to our listeners about changing the sexual culture to make sexual assault less of a thing. So the first one is called “Tomorrow Sex Will Be Good Again” by Katherine Angel, which is about the concept of consent, which she thinks is the correct legal standard for whether somebody is committed assault, but she thinks that it’s got some pitfalls as a cultural standard. Because the way that people use the concept puts a lot of onus on women, to make men sort of treat them well sexually and more of the onus should be on men to treat women well sexually. I’ve also been reading “Sexual Citizens” by Jennifer Hirsch and Seamus Kahn, which is about sexual assault on college campuses, they interviewed a bunch of students, they’re sociologists, and they basically argue that students should have a concept of themselves as sexual citizens, and that this will help reduce sexual assault at colleges. And then the last book I want to recommend is “Screw Consent,” which is by Joseph Fischel. It’s sort of a tongue great title. It’s wonderful and Fischel argues that he agrees with the Angel that that consent is the right standard for legal convictions for sexual assault, but he thinks in terms of like, what we want out of a sexual culture, we want something richer than just minimal consent for sex that is like non harmful and good. We want concepts of sexual autonomy and access to sort of moral goods.

Josh Landy
These are all great recommendations. We’ll put links to everything we’ve mentioned today on our website, philosophytalk.org, where you can also become a subscriber and get access to our library of more than 500 episodes.

Ray Briggs
And if you have a question that wasn’t addressed on today’s show, we’d love to hear from you. Send it to us at comments@philosophytalk.org, and we may feature it on the blog.

Josh Landy
Now for a final thought it’s Ian Shoales, the Sixty-Second Philosopher.

Ian Shoales
Ian Shoales. #MeToo made way for wokeness which is more like a panic attack than a thing. Disrupting school board meetings, bringing rifles to City Hall, UltraPro says thanks we price abort if we thought about it. Public health, consideration for others, justice for all but aside from women and people of color, nobody wants to think about justice for women and people of color because it makes us white men feel bad, which then makes us want to make the discussion about that. Why are you making me feel bad? Why is it #MeToo about me too? All lives matter. The woke empire is coming for the babies which come from the baby people. We can’t even call them women anymore. Can you believe it? Our impulses as a nation go off in two directions at once though each puts everything in a basket of blame. #MeToo, wokeness QAnon, revenge fantasies, drunken MAGA bar opinions all mixed into the same hefty stew, little dot hot by Fox News former slave states and the anti woke states that wish they were former slave states. Those antebellum mansions were so pretty. On the left the direction is to split into ever smaller components microanalyzed by panels of commentators on every network except Fox News. Then eventually we all get lost in the weeds of the commentator save and turn to the amazing variety of antidepressants available for solace, cancel culture meet counseling culture. Frankly, I’m amazed that any justice happens. Oh, and Donald Trump pardoning everybody and more to come up just give him a chance. And various subcommittees debating what crime even is there’s nobody in prison except Black people who signal right turn left said what to the cop pulled them over and now must pay the price. But if cancel culture is a punishment of choice, we’ve always had it. We only see more of it because we have our face in everybody’s business whiners about privacy are quiet about that aspect, but it could actually be healthy, like the little league in the small town knows everything that’s going on and help police solve crimes. That’s our dream self now, Snoopy Karen whistleblower. As a cisgender white guy, it is my privilege to point out that fragmentation called intersectionality, which began with black thing to white. What about some of us and that feminism, which led to expanded horizons of oppression, empowerment rose above all that for people of color, people with disabilities, the members of LGBTQ and more leading to huge discussions about who’s oppressed, and when and how, and who gets to belong just like Junior High who gets othered? Who does the other thing? Take trans for example, conservatives freak out that former guys are now girls are going to compete in sports and use girls restrooms. I notice that nobody freaks out about girls who are now guys though. What if they use a guys restroom? What if they go out for football? Again, if you think about it, shut up. On the empowerment side, the besieged trans minority is a little testy. What was the pronoun shortage and lack of public places to pee. The turf is an object of their scorn. The trans exclusionary radical feminist is a woman who believes again according to chat show commentator panels that trans women are not actually true women from a radical feminist perspective. I don’t know what turfs think of women who have had a hysterectomies so I’m sure many turfs are perfectly fine with trans women coming to the meetings, as long as they chip in for the daycare. So who is othering whom? In this cancel culture counsel culture world we no longer blame we nurse our grudges and go off or find therapy. Being a psycho killer is just like being left handed or faded balloons. Is it so much worse than inappropriate touching? Be honest. Don’t be afraid to ask for help or buy a gun. Remember going postal used to be a blanket term until the counsel culture decided it was othering disgruntled mail carriers. So now we just go with mass shooters, which sounds more egalitarian and includes disgruntled students, racists, guys with too much time on their hands and too many weapons guys who think critical race theory is just a scam to make them feel bad about themselves, and they won’t have it. In other words, on so many fronts, same sins, but each get a little story. And now there’s so many more inclusive ways to go kaboom. I gotta go.

Josh Landy
Philosophy Talk is a presentation of KALW San Francisco Bay Area and the trustees of Leland Stanford Junior University, copyright 2022.

Ray Briggs
Our executive producer is Ben Trefny. The senior producer is Devon Strolovitch. Laura Maguire is our Director of Research.

Josh Landy
Thanks also to Merle Kessler and Angela Johnston.

Ray Briggs
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Josh Landy
The views expressed or mis expressed on this program do not necessarily represent the opinions of Stanford University or of our other funders

Ray Briggs
Not even when they’re true and reasonable!

Josh Landy
The conversation continues on our website, philosophytalk.org, where you can become a subscriber and gain access to our library of more than 500 episodes. I’m Josh Landy

Ray Briggs
And I’m Ray Briggs. Thank you for listening

Josh Landy
And thank you for thinking.

Rose McGowan
It is about all of us being roses in our own life—not me, the actual flower!