[TW: This post discusses rape and sexual assault in some detail. In addition, several of the links lead to graphic descriptions of rape and sexual assault by survivors.]
First of all, all my thoughts are with the people who were finally able to speak out loud enough to be heard in the face of power. I hope they get whatever measure of justice, or closure, or healing they can and want from this. I also find it tentatively encouraging that, after some prodding, the TOR Project has chosen to deal with this publicly to an extent. The digital rights community has a long way to go, but I guess the reactions we’re seeing this week, and the voices we’re hearing, are better than those back in 2010.
There’s one thing that really struck me in TOR’s second statement though, which in some ways illustrates the depth, complexity and extent of the issues we as a digital rights community still need to get our collective heads around to make this a safe space:
People who believe they may have been victims of criminal behavior are advised to contact law enforcement. We recognize that many people in the information security and Internet freedom communities don’t necessarily trust law enforcement. We encourage those people to seek advice from people they trust, and to do what they believe is best for them.
Allow me to digress for a moment to another high-profile rape case that’s been in the media this week: the Brock Allen Turner one. This is pretty close to a classic “stranger rape” case, where there were two witnesses and a rape kit. This is one of the vanishingly small percentage of rape cases that not only got reported, and got to court, it led to a conviction. It is also the case where the rapist was sentenced to six months’ jail time because anything longer would have a “severe impact” on him. This is how law enforcement treats rape if you are lucky.
Here’s something else for you to consider before encouraging those Appelbaum attacked to go to law enforcement. This is a quote from River’s account over on jacobappelbaum.net:
I didn’t know until very recently that nonconsensual sex, by a friend, is rape.
This is not unusual among those who have experienced rape and sexual assault. Our society constructs sexual violence as “just sex” in a number of toxic and insidious ways. So if a survivor doesn’t know that what happened to them was rape, guess who else doesn’t know it: law enforcement. Let me be clear: nonconsensual, coerced, unwanted sex is rape, even if the person doing it is a friend, a partner, a spouse. This is certainly the case morally, and it is the case legally in many – not all – jurisdictions. Unfortunately, it’s not how law enforcement actually operates.
From what I’ve seen so far, most of these cases are historical cases of acquaintance rape: more difficult to prove “beyond reasonable doubt”, which is the standard for criminal conviction in most jurisdictions. This is not an issue with the cases, or the victims, it’s a structural problem of the way Western criminal justice systems approach rape and sexual assault. The best you can hope for here is a protracted, painful and humiliating investigation that is eventually declared inconclusive.
Another consideration is that the digital rights community that Appelbaum exploited is by nature multinational and migratory. At least one of the assaults (Forest’s account) happened in Germany. Germany’s rape laws are notorious as a carte blanche for rapists. Even if that wasn’t the case, by asking the victim to contact law enforcement, you’re asking them to deal with a legal system that is unfamiliar to them, in a language they may not speak. Depending on whether they’re resident in that country or not, you’re potentially asking them to put that at risk too.
So here’s the thing, TOR: as a woman who is also a digital rights activist, my mistrust of law enforcement does not come from my involvement in digital rights activism. Yes, it’s exacerbated by that, and surveillance is something I have to think about on a daily basis. But in this very specific intersection of circumstances, my mistrust of law enforcement goes much deeper than that, and is much more visceral. You suggesting otherwise is insensitive at best, and shows a remarkable level of ignorance of the reality of the situation at worst.
At the same time we need to recognise that the fact that the people Appelbaum attacked are digital rights activists does make it even more difficult for them to seek justice through law enforcement. In this way we are a vulnerable, marginalised community, making it easier for predators like Appelbaum to operate with impunity. Saying victims should talk to people they trust and do what they believe is best for them is not enough. It’s not a how a community should operate. It undermines our work and our reputation on the issues we have come together to address.
We need to get better at this. We need to believe the first person that reports an assault, not wait until there are ten of them. We need to set up structures that allow us to deal with abusers in a timely and effective way. We need to support survivors. Your move, TOR.