At the weekend there were several news reports of a new approach by Prince Andrew to defending the civil action brought by Virginia Giuffre, who has accused the prince of ‘sexual assault’ (the term commonly used in the US in respect of rape allegations). The pre-trial hearing this week was only to determine whether Prince Andrew’s alleged behaviours, if proven, warranted civil (financial) redress and therefore the case could proceed to a trial. The trial is likely to go ahead towards the end of 2022.
Attacking the victim’s character
In advance of the hearing, Prince Andrew’s US lawyer, Andrew Brettle, opted to attack the reputation of the victim, accusing Giuffre of “initiat[ing] this baseless lawsuit against Prince Andrew to achieve another payday at his expense and at the expense of those closest to him”. Brettle says that she was a ‘sex-kitten’ and that she was responsible for “procuring under-age slutty girls for sexual abuse by Jeffrey Epstein”. As the prince continues to deny the charges made against him and deny knowledge of Giuffre, this approach is aimed at undermining the validity of Giuffre’s application.
Given the many scandals of powerful men using their position and wealth to abuse young women that have come to light in the past few years, commentators in the UK and US are surprised that the prince would favour a victim-blaming strategy and have argued it shows a lack of empathy and self-awareness. We might not like him for it, but such criticisms are misplaced. The strategy reveals that, in spite of all of the #MeToo protests and the convictions of Epstein and Harvey Weinstein, this is the strategy his lawyers think is most likely to succeed – at least at this pre-trial stage.
Exploiting Giuffre’s vulnerability
The ‘facts’ presented by Brettle underpinning this approach are not likely to be disputed by Giuffre. As part of a court filing in 2014 against Epstein and Ghislaine Maxwell that contributed to the conviction of Epstein and the charges against Maxwell, Giuffre alleged that she had been trafficked and abused from 1999 to 2002, that she was Epstein’s sex slave and that she had recruited other under-age girls. She also said that Epstein had paid her $10,000 to have sex with Prince Andrew, instructing her to do “whatever he wished”.
Had Prince Andrew been appearing in a Florida criminal court, Giuffre’s sexual history, payment for sex, or consent (being under-age) would not have been an admissible defence but could still be used to undermine her credibility as a witness.
Research and inquiry reports show that already vulnerable young people are those who are most vulnerable to grooming and abuse. And abusers are adept at identifying vulnerability and providing something that the young person needs. Cases show how difficult it is for young women to stop the abuse or its escalation.
If they accept money or gifts, they are made complicit. They often feel unable to refuse sex having consented once. They may be persuaded that what is being demanded of them is part of a relationship. At school and in their neighbourhoods they are often called ‘sluts’ and are excluded by their peers. This too can make them more dependent on, or less able to resist, their abusers.
Previous sexual history
In the UK, the promiscuous defence was made impermissible in the criminal courts in the 1999 Youth Justice and Criminal Evidence Act. However, questions about a woman’s previous sexual history continue to be asked and previous history can, with the judge’s permission, be used to minimise the extent of a defendant’s culpability. Rumours or innuendo about previous sexual contacts to the media can threaten a rape trial or reduce, in the public’s mind, the severity of the accusations.
The whole concept of ‘consent’ suggests that having sex with someone who is not wholeheartedly and enthusiastically a partner in the enterprise, but merely acquiesces, is viewed as unproblematic. Consent, no matter how constrained that might be, is the only requirement. Worse, enthusiastic participation – the only real evidence that ‘consent’ was not constrained – is still understood by many as indicative of promiscuity which, on another occasion, may deny the woman the right to object.
In the case of the footballer, Ched Evans, for example, this was the argument put forward at the appeal court. Two witnesses claimed the victim had previously and enthusiastically had sex with them and in a way that was not dissimilar to that which occurred with Evans on the night in question.
Independent reports on cases of ‘grooming gangs’, such as that undertaken by Professor Alexis Jay in Rotherham, indicate that all agencies – police, social services, schools and health – had integrated these ‘common sense’ opinions about girl’s sexuality and promiscuity and so considered them to be less worthy of protection. Even today, social work and police inter-agency assessments of girls in care who go missing say they are ‘putting themselves at risk’ and therefore hold the responsibility for learning protective strategies.
Normalising the abuse of vulnerable girls
To interpret a teenage girl’s sexualised behaviour as a green light for older, paunchy and unattractive men to have sex with her rather than as a red warning light that she may be a victim of prior abuse, or even trafficking, suggests an overwhelming sense of male entitlement that is careless of, or indifferent to, a girl’s wellbeing. In some cases it is knowingly abusive.
Epstein was able to get away with much of his behaviour, not just because he was wealthy or had power, but because he normalised it. He was known for having a sexual interest in young women, some as young as 14 years of age, and extravagant parties to which young women had been ‘flown in’ (trafficked). His private jet was called the Lollita Express by locals on the Virgin Islands where he had a home.
Knowing this, many men still went to his parties, and in some cases may have been hoping to have sex. Others may not have intended to have sex but felt under no obligation to intervene or report to the authorities that vulnerable girls were being circulated for sex. It is this widespread complicity in the sexual abuse of girls that needs to be challenged.
Prince Andrew’s choice of defence is only possible because it is still socially acceptable to think in this way. This attitude is widespread and cannot be dismissed as just a problem of ‘out of touch’ royalty, or only likely to be successful in the US. It cuts across all classes and races. It was evident in the cases of ‘grooming gangs’ in Yorkshire, sports coaches in gymnastics, Cheetham music school, and individual offenders such as Jimmy Savile.