Leiden Law Cast: Victimisation of sexually transgressive behaviour with Maarten Kunst
Leiden Law Cast is a podcast made by Leiden Law School, Leiden University, for everyone who wants to learn more about current legal issues.
Today we will be talking to Professor Maarten Kunst. Before continuing with this summary, the Leiden Law Cast team and Maarten ask that you please note the following.
This episode will discuss sexual misconduct. This is a sensitive topic that for some people will perhaps be very difficult to listen to. It is our intention to discuss the topic by considering it from all angles. We believe we can do this in a responsible way, in view of Maarten’s expertise in the area of victimisation. Nothing in this episode is intended to detract in any way from experiences you may have had. Maarten invites anyone who is in any way offended by something he says in this episode to approach him and enter into a dialogue with him.
Maarten Kunst has worked at Leiden University for 12 years (first as a lecturer, later as an Associate Professor, and currently as Professor of Criminology) and is specialised in victimisation. He started his academic career in Tilburg with a degree in law, specialising in criminal law. Later, after travelling around the US for a year, he also studied psychology. While studying for this second degree, Maarten also worked at the Dutch Employee Insurance Agency (UWV) in the area of social security law. He also worked at the former International Victimology Institute in Tilburg (where, he remarks, he was hired without much effort on his part). Maarten says that he sometimes feels ashamed when he reads the CVs of recent graduates and is struck by how much students nowadays have to do to stand out – changed days compared to when he was a student. That said, Maarten did take a whole year of extra courses during his law studies. His CV from that period includes his work as an usher in criminal cases at the district court in Den Bosch – a period that sparked his interest in criminal law. When he discovered when working at the UWV that in many cases post-traumatic stress disorder (PTSD) can lead to employees losing their jobs, this also brought him closer to the field of victimology.
In this episode, we discuss with him cases of sexual misconduct and harassment. Recently, there have been many high-profile cases in the Netherlands, for example concerning Jeroen Rietbergen, Marco Borsato and Ali B in The Voice of Holland talent show, Marc Overmars at football club Ajax, and Nilufer Gundogan in the political party Volt. These types of cases are often called ‘MeToo cases’, after the movement of the same name that sees victims of sexual misconduct and harassment going public more often. Maarten thinks that such behaviour has been around for a long time, but that in recent years more public attention has been generated by certain individuals. After attention is drawn to the topic, there’s often an explosion of reports from victims.
Hamza has noticed that many high-profile cases of sexual abuse are characterised by a major difference in power between the victim and the alleged perpetrator. Maarten makes a cautious educated guess that this has to do with the media: an unequal balance of power makes for a more attractive story in the media. He cites an article by Norwegian criminologist Nils Christie. Christie described the ‘ideal victim’: the idea being that a victim must fulfil certain characteristics in order to generate attention for their victimhood. Characteristics like being young and female may play a role in this because we are more likely to associate these characteristics with victimhood. He notes that a one-sided image of the perpetrator and victim has developed in the media as well as in science. It was only fairly recently that the validity of Christie's thesis has been examined. But consider also research into victims who lie – there’s no research on this because it’s something that’s taboo. This is in stark contrast to the literature on the credibility of suspects.
Maarten doesn’t believe that this behaviour is more common than it used to be, but it is taken more seriously nowadays. This may have something to do with a kind of emancipation movement that has been underway for some time. In his lectures, Maarten tries to make the connection between certain events and the emancipation of victims. He explains that the victims of the Holocaust (specifically those liberated from the camps) received little attention in the post-war years. It was only in the 1970s that compensation schemes and professional help for these victims began to materialise. Something similar can be seen in the US, although Vietnam veterans were mainly framed by the media as being dangerous madmen. For these victims, a clear emancipation movement has come from the medical world: by including PTSD in the Diagnostic and Statistical Manual of Mental Disorders (DSM), their victimhood was recognised. Turning to the emancipation of rape victims, Maarten points in the direction of feminism. The ‘Dolle Minas’, a Dutch feminist group founded in 1969, played a role here. At the international level, the feminist Susan Brownmiller certainly played a significant role. She described victimisation related to sexual misconduct from the perspective of the male culture that prevailed then. Victims at that time were faced with clear stereotypes, for example when reporting an offence to the police. This is an example of the non-ideal victim.
At this point, Maarten builds a bridge to victim credibility. He notes that the victim's perceived credibility is partly determined by the emotional victim effect. It seems that a victim has to display a certain degree of emotion in order to be believed. This type of stereotype may also play a role with the Dutch police. However, Maarten also takes a nuanced view of the working methods of the Dutch police, where those who report sexual misconduct are often asked to think it over for a few days before pressing charges. However unpleasant this may be, a detective who is confronted with the case must also consider its feasibility. This can mean that a case that doesn’t appear to meet the minimum standard of proof is not immediately taken up. Maarten points out that he’s not saying that a person making a report should never be asked to think about it for a few days, but that he is in favour of more guarantees on the part of the police. In addition to the fact that the police already have to screen a victim for secondary victimisation, he proposes, for example, that a female detective should also be involved in the case. Maarten is also adamant that victims must be taken seriously immediately, and that what they say must be recorded immediately. However, our legal system entails that the story of the person reporting an incident must be critically examined before we can speak of an offender instead of a suspect. It is therefore important that the police inform the victim that the suspect's story will also have to be heard.
Together, we discuss the complexity of evidence in vice cases. The difference between rape and consensual sex is consent. That’s something that is very difficult to prove, especially since sex is often between two people – so it’s often one word against the other. Maarten notes that it’s possible that an alleged perpetrator won’t deny that sex took place, but that they believe there was no question of it being something unwanted. In such cases, the question is whether criminal law is the appropriate way to address such a terrible experience. Suppose two people have sex after going out and to one person it was consensual sex, but to the other it wasn’t. In these cases, a good conversation or mediation may be more helpful.
All three of us agree that open communication plays a major part in preventing sexual misconduct and harassment. However, Maarten rightly points out that it can’t be prevented in all cases. After all, communication is the most difficult aspect of being human. Maarten therefore urges us not to be naive. Of course it’s important to educate our sons properly, but this doesn’t mean that all cases will then be prevented. It’s also important to give our daughters the right information and skills needed to avoid becoming a victim. We’re fooling ourselves if we only focus on an ideal world. This is also visible in science, where research into victimhood in these types of cases seems to have been killed off by Brownmiller’s feminist movement (justified at that time).
Maarten is resolute: under no circumstances must a causal connection be sought between the victim's behaviour and victimisation – known as victim blaming. This can be linked to Melvin Lerner's Just World theory which states that it is assumed that we live in a just world. When something happens to someone we identify with, this activates a self-defence mechanism. We then assume that the victim has done something to cause this to happen; if victimisation were random, the assumption of a neatly functioning world would not stand up. Our brain tries to understand the world in stories, which leads to errors in our thinking: narrative fallacies.
With wise words, Maarten follows on from what he said earlier: victim sympathy is not enough, but it is nevertheless extremely important. We must show as much sympathy towards the victim as possible, but we must also pay attention to other interpretations of events. Some events should not be framed in terms of a victim-offender relationship, but two parties involved in an experience that was experienced as unacceptable.
The Leiden Law Cast (in Dutch) is available via the following:
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