An Open Letter to the Burden of Proof
By Ciana Alessi
I’ve been thinking a lot about proof lately. We require proof for a handful of relatively insignificant things, like proving legal employment status before getting a job, proving your place of residence at the DMV to change your address, even something as mundane as a shopping receipt functions as constant proof of purchase. All of these examples are interactions within the public domain, and it’s a relatively innocent exchange, to use the latter example, when a store employee asks a customer for their receipt as proof of the item they intend on returning. But what happens when proof is blindly weaponized?
In all cases of sexual violence (especially when enacted upon women by men), someone is bound to ask for proof that the incident(s) occurred. Obviously our entire justice system is based on individuals pleading their case to the court so justice is properly served, so of course in criminal proceedings the first step is gathering proof. But before a survivor of sexual violence even reaches the legal stage or reports the assault, someone will ask them to prove they were assaulted. Specifically when women are the survivors of assault or rape, this process repeats itself incessantly. It’s never “prove once you were assaulted.” It goes a little more like: prove that you were assaulted, prove this again weeks later to ensure your memory is sound, and most importantly, prove that you didn’t deserve for this to happen to you. Let’s reveal the many flaws in this logic in just three steps.
I grew up as the youngest child of three girls. My sisters and I would play this game on our Xbox (Shrek Super Party) and I would always lose. Without a doubt. Always. So when I would get sent to the evil bog and lose another turn, and my sisters would ridicule me, I would cry and yell for my mom to reprimand them. I’d say they were picking on me (true) and sometimes I would say they pushed/kicked/jumped on me (not so true). Regardless of if I was feeling especially salty about my loss and lied about the extent of my sisters’ torment or if I was actually being attacked, my mom would come and yell at them and, alas, balance would be restored. Now, although this is a dumb little story that will continue to haunt my numbered days on earth (my sisters tell it to my friends, boyfriend, strangers, etc. any chance they get), it’s one of many instances where no proof is necessary before “justice” is served. If you get mugged or your car gets stolen, whatever authority you report this to won’t say, but are you sure? Do you just remember it wrong? Why would they mug you and no one else? I can confidently say that this consistently happens to women and hardly happens to men; apparently, we are unbelievable. The validity of women’s statements (whether they be serious accusations or frivolous thoughts) are always questioned as if we are children incapable of separating reality from fiction. Not only is this ridiculous, it is yet another instance of men (writ large) doubting the mental capacity and mental stability of women only because they are women. It didn’t matter that Anita Hill has a law degree from Yale, or that Dr. Blasey Ford is an established professor; their female gender automatically enables male suspicion. This is where gaslighting sneaks in...
So why is there so much emphasis on sound memory in sexual violence cases? The obvious answer one can give is that in such instances, it is supposedly one person’s word against another’s. It seems the actual reason that (in cases of sexual assault or rape enacted by men upon women) interrogation of women’s memory is so central is in order to to begin gaslighting the survivor. First and foremost, the human memory does not work like a videotape, as most people assume; human memory is actually notoriously flawed and according to psychologist Steven Frenda, “distortion is a fairly ordinary feature of human memory.” The accuracy or inaccuracy of the human memory is often posited as the central determinant in cases of sexual violence, but while women’s memories are constantly up for debate, men’s memories are scarcely held up to the same scrutiny. So how can we heavily question Dr. Blasey Ford’s memory, and blindly believe Brett Kavanaugh’s? If -- more likely than not -- the memory of both parties is at least partially distorted, how can memory be the determining factor? Quite frankly, it is apparent that memory shouldn’t be the basis for establishing the validity of sexual assault or rape accusation due to these inconsistencies. In a way, though, this is not how memory is used. The way memory is used in sexual violence cases is as a weapon. It is utilized to show that the survivor is unbelievable, for if she can’t exactly remember her surroundings when she was assaulted, or what she was wearing, how can we trust anything out of her mouth?
I’ve found it nearly impossible to hold back the classic, “but what was she wearing?” question in this interrogation of sexual violence proceedings (unfortunate pun, yet, still intended), but here she comes, screaming “rape culture” from the rooftops. Let’s be reminded here that it literally does not matter in any way, shape, or form what a woman was wearing when she was assaulted, how she was acting, whether or not she was sober, or what kind of person she was before and after her assault. Rape existed before mini skirts, crop tops, and waist trainers. Rape and sexual violence are about power, not the survivor’s individual choices. All efforts to ground the validity of a woman’s sexual assault claim in her respectability, her appearance, or her past actions are last ditch efforts; they are playing into people’s preconceived notions that bad things only happen to bad people. And regardless of what you consider a “bad person,” the inverse of that image, the most wholesome, kindest, most innocent person on this godforsaken planet has been the survivor of sexual violence somewhere in the world. Unfortunately, I can guarantee it.
If our sources of proof are only selectively utilized due to the historic disbelief of women’s mental and emotional reliability, if they stem from highlighting the distortion of only one parties’ memory, and if this proof must be based upon the entirely false belief that some people deserve all-encompassing violation, then this proof is just like our nation’s gun problem: we will point our fingers in every which way in order to blame the effects of the problem instead of its source. Our selective reliance on proof in cases of sexual violence stems from rape culture; that creeping, horrible, invisible monster we all learned to be true until some found out it was cruelly created. Created to keep women in line, to keep us behind men where we supposedly belong. So when women try to get out of line, try to prove that these men are forcing us behind them and forcing themselves upon us, we must be swiftly shot down by those still under the clutches of rape culture. Our first step must be acknowledging that there are systematic efforts to maintain the stronghold of rape culture; we must question why certain narratives about sexual violence dominate and, among other things, why it's so hard for women to successfully prove their trauma, assault, or otherwise unwanted engagement has nothing to do with their decisions or appearance, and everything to do with the system that says “boys will be boys” instead of teaching boys and girls a word called consent.