(Un)reasonable Doubt: A "Narrative Immunity" for Footballers against Sexual Assault Allegations

Photograph by Gonzalo Echeverria (2010)“Beyond reasonable doubt” is the standard of proof for criminal cases in a court of law. However, what happens when doubt, reasonable or otherwise, is embedded in the media reporting of criminal cases, even before charges have been laid? This paper will analyse newspaper reports of recent rape cases involving Australian footballers, and identify narrative figures that are used to locate blame solely with the alleged victims, protecting the footballers from blame. I uncover several stock female “characters” which evoke doubt in the women’s claims: the Predatory Woman, who hunts down footballers for sex and is always sexually available to any and all footballers; the Woman Scorned, who makes a false rape complaint out of revenge; and the Gold Digger, who makes a false complaint for money. I will argue that the news media thus effectively provide footballers with a criminal defence, before the cases can even reach court. Rape and Football in Australia The issue of football and rape first came to mass public attention in February 2004, when six players from National Rugby League (NRL) team the Canterbury Bulldogs allegedly raped a woman while at a New South Wales resort. Two weeks later, two players from the St Kilda Australian Football League (AFL) team allegedly raped a woman following their pre-season cup victory. These two football codes are the nation’s most popular, with rugby league dominating the north-eastern states, with the southern, eastern and western the domain of Australian Rules. In neither case were charges laid, and although at least twenty distinct cases have been reported in the Australian media, involving more than fifty-six footballers and officials, only one–NRL star Brett Stewart–has yet been tried. Stewart was acquitted in September 2010. Former AFL footballer Andrew Lovett has also been ordered to stand trial in July 2011 for allegedly raping a woman on Christmas Eve, 2009. Nevertheless, the majority of cases never reach court. In criminal cases, the Director of Public Prosecutions (DPP) ultimately decides whether to pursue charges through the courts, and, as most cases will be decided by a jury drawn from the general public, the DPP must decide whether the general public would accept the prosecution’s evidence as proof of guilt “beyond reasonable doubt.” This means that if a jury retains any doubt that the accused person is guilty, as long as that doubt is reasonable, they must return a verdict of “not guilty.” Public opinion in high-profile cases is therefore extremely important. If the DPP perceives a high level of public scepticism about a particular case, this indicates that the likelihood of the general public accepting the prosecution’s evidence is low, and they will often decide not to pursue the case. My analysis will show that media reports of the cases, which were published before any decision about laying criminal charges was made, can in fact work to create doubt, taking popular, victim-blaming stories to cast doubt on the complainants’ testimonies. Thus “reasonable doubt,” or a doubt that seems reasonable to many or most readers, is created before the case can even reach court. Predatory Women, Gold Diggers and Women Scorned When debate began in 2004 and explanations were sought for the high numbers of cases, stories abounded in which women have consensual sex with footballers, and then make a false rape complaint. I identify the principal characters of these stories as the Predatory Woman, Gold Digger and Woman Scorned. These stories were particularly prevalent amongst football representatives, blog contributors and talkback radio callers. Some media commentators provided alternative explanations (Magnay, for example), and others were explicitly critical of such stories (Pinkney, Wilson, for example); however, other journalists in fact evoked these same stereotypes. All of these characters have “common currency” (Smart 39), and have been used by defence lawyers in criminal trials for centuries, which means they are likely to be believed. These commentators therefore (indirectly) portray the complainants as liars, and reinforce the pervasive victim-blaming discourses in the wider public. The Predatory Woman The Predatory Woman character can be traced back at least as far as the early nineteenth century, when so-called “fallen” women were frequently “scorned as predatory creatures who lured young men into sin” (Clark 59). In her study of newspaper articles on football and sexual assault, gender theorist Kim Toffoletti identified the “predatory female” as a recurrent figure who is used to portray footballers as victims of “deviant” female sexuality (432-3). Toffoletti argues that the assumption underlying the use of the predatory female is that “incidents of sexual assault can occur when women deviate from the ‘conventions’ of heterosexual relations that expect them to be passive and sexually available, and men to exude sexual virility” (433). However, I argue that commentators’ usage often carries this further, and rather than using the story to claim that a victim of rape “deserved” it, the Predatory Woman actually serves as a replacement for the Raped Woman, therefore implicitly claiming that the complainant was lying. The Predatory Woman is the aggressor in all sexual encounters with footballers, a “sexual predator” (McCabe 31) who is said to “target” players and “hunt in packs” (Lyon 1). In a 2004 interview, one footballer described the phenomenon as “frightening” (McCabe 31), and another in 2009 claimed that footballers are “given temptations,” and “some of them [women] are downright predators” (Cunningham 30). The hunting animal metaphor clearly represents women as sexual aggressors, virtually suggesting that they are committing violent acts–moving in on unsuspecting footballers for the “kill” (sex). Thus portraying a complainant as one who seeks out sex with footballers implies that she victimised the players. As a woman cannot be both sexual aggressor and rape victim, the character of the Predatory Woman replaces that of the Raped Woman, therefore invalidating a complainant’s testimony and creating doubt. The Woman Scorned The Woman Scorned, another popular character in footballer sexual assault narratives, has also been evoked by the defence in criminal rape trials for centuries (Sanday; Benedict 2, 39-40, 83; Larcombe 100, 104-106, 111; Lees 78). The prevalence of footballers’ beliefs in the Woman Scorned story when NRL player Simon Williams commented about the prevalence of group sex/rape incidents involving NRL players on the 2009 Four Corners “Code of Silence” episode: It’s not during the act, it’s the way you treat them after it. Most of them could have been avoided, if they [players] had put them [women] in a cab and said thanks or that sort of thing not just kicked her out and called her a dirty whatever. It’s how you treat them afterwards that can cover a lot of that stuff up. Williams’ implicit claim here is that no woman would make a rape complaint as long as footballers always “said thanks” after sex. He thus implies that “most” of the complaints have been about revenge from women who felt mistreated after consensual sex: Women Scorned. The Gold Digger The Gold Digger is also an established character in both football rape stories and criminal rape trials; Peggy Sanday identifies her in cases dating from the eighteenth century. In rape cases, the Gold Digger can be evoked when a prominent and/or wealthy man–such as a noble in the eighteenth century, or a footballer in the present context–is accused of rape, whether or not the alleged victim seeks or receives a financial settlement. Many football fans evoked the Gold Digger on Internet blog sites, even when there were no observable characteristics corresponding to the Gold Digger in any of the media narratives. One declared: “My mum said she was probably being a slut, then after they ‘did’ her, she decided 2 say summin coz she thought she could get money or summin out of it [sic]” (in Baird 41). The Gold Digger stereotype invalidates a rape complaint, as a woman who alleges rape for financial gain must be lying, and was therefore not raped. Her claims are to be doubted. Narrative Immunity From 2009 onward, although traces of these characters remained, the focus of the debate shifted, from the possibility of sexual assault to players’ alcohol intake and the prevalence of “group sex.” Nina Philadelphoff-Puren identifies implicit claims that the complainants were lying in the statements of football representatives (37, 41-43), which imply that they must be Predatory Women, Women Scorned or Gold Diggers. In order to show clearly how journalists mobilised these characters more directly to evoke doubt, I conducted a search of the “Newsbank” newspaper database, for opinion pieces that sought to explain why the allegations were made, using varying combinations of the search terms “AFL,” “NRL,” “football,” “sexual assault,” “rape,” “rugby,” “sexual violence,” “sex” and “women.” Articles were sought in broadsheet newspapers The Age (Melbourne) and The Sydney Morning Herald, and tabloids The Herald Sun (Melbourne) and Daily Telegraph (Sydney), the most widely read newspapers in the cities where the alleged incidents occurred. The time-frame selected was 27 February 2004 to 1 May 2004, which covered the period from when the Canterbury Bulldogs case was first reported, until debate died down after the announcement that no charges would be laid against St Kilda footballers Steven Milne and Leigh Montagna. Twenty articles were collected for analysis: two from the Daily Telegraph, eight from the Herald Sun, seven from the Age, and three from the Sydney Morning Herald. Of these, half (ten) overtly blamed the alleged victims, with seven of those explicitly evoking Predatory Woman, Woman Scorned and/or Gold Digger stereotypes, and one strongly implying them. Although i