Amy Berkowitz

Conclusion and Findings by Community

Meeting Transcript  

12 women from the Community met in a backyard. Eleanor served as facilitator. A statement by the Respondent was read aloud by his housemate, Angela. A statement by the Complainant was read aloud by Jessica. The following comments are pulled from the meeting transcript.

Leigh: I think it’s bullshit that the Respondent points out that he and the Complainant were “kissing and touching” beforehand. Kissing and touching someone does not give you permission to have sex with them. And the Complainant letting the Respondent kiss and touch her should absolutely not be mistaken for consent, which is what I think is essentially going on here.

Angela: The Respondent said that the Complainant did give him nonverbal consent, though.

Corinne: No, the Respondent said that the Complainant made “a sound that could be considered moaning.” That, to me, does not sound like consent. If my partner were making a sound that I couldn’t even confidently identify as moaning, I would check in with them.

Angela: The Complainant and the Respondent have been dating for two years, and his statement says he wasn’t doing anything differently with her than he usually does.

Phoebe: That is completely beside the point: If she didn’t want it, that makes it rape. Full stop. Even if you can’t think of a reason she didn’t want it. Even if she was his girlfriend.

Angela: She kept dating him for two weeks after he allegedly raped her. And then she just suddenly decides it was rape. If he raped her, why would she stay with him?  

Leigh: Abuse dynamics area really complicated. And also, I didn’t recognize my rape as a rape until a year after it happened. I think sometimes our minds frame rape as something else, something acceptable, as a sort of coping mechanism to get us through the experience.

Ruth: I just want to point out that the word Complainant has negative connotations, like she’s complaining, and Respondent sounds kind of neutral or positive, like he’s just responding to something, being responsive.

Eleanor: Let’s put that as a discussion item for next week.

Sasha: As one of the few people of color here, I want to say that there’s something kind of messed up about a group of mostly white people judging a sexual encounter between a white man and a woman of color.

Ruth: Thank you for calling attention to that.

Jessica: I think it’s important to remember that the Complainant had already been frightened by the Respondent’s past actions, like the incident on December 4 when he threw his keys and blocked her from exiting the room. That’s violent and threatening behavior.

Phoebe: I believe the Complainant when she says that fear stopped her from speaking up during sex with the Respondent a few weeks later.

Angela: We need to take a moment and consider how the Respondent is feeling. He is very unstable right now, and I’m worried about him. He said he’s been thinking about killing himself.

Leigh: I don’t want to totally dismiss concerns about the Respondent’s mental health, but threatening suicide is a really common manipulative tactic used by perpetrators.

Angela: I was thinking we could take up a collection to pay for the Respondent’s therapy.

Corinne: That’s a hard pass.

Sasha: We need to be centering the needs of the survivor, not the perpetrator. Has anyone talked with the Complainant about what her needs are?

Jessica: The Complainant says she wants to be able to go to events and shows without having to see the Respondent there. She requests that the Respondent refrain from going to or playing at any local house shows for six months.

Phoebe: Did the Complainant say anything about her feelings about naming the Respondent publicly?

Jessica: No, I will check in with her about that.

Phoebe: If she’s comfortable with it, I think we should write a statement calling him out publicly.

Eleanor: We can talk about that next week.

Angela: You’re ruining his life!

Leigh: No one is ruining his life. Not playing shows or going out for six months is not life-ruining. The Complainant deserves to be able to go out and not be scared of running into him and experiencing flashbacks. 

Corinne: The Respondent might use these months as time to focus on rehabilitating himself and start therapy.

Conclusion and Findings

After considering the statements and information received from both parties, as well as statements from their housemates and friends, the Community found Complainant and her account of the events to be more credible than the version put forward by the Respondent.

The Community believes it is more likely than not that during the night of December 17-18, the Respondent had sex with the Complainant without having clear consent. The Community believes that the Respondent’s disregard for the Complainant’s safety and well-being is in line with his threatening behavior during the December 4 argument.

The Community believes that any similarities between the sexual activity in the early morning hours of December 18 and past sexual practices between the parties are entirely irrelevant.

The Community believes that a sound that may or may not be a moan cannot be an indication of consent. The Community believes that legs that are not clamped shut cannot be an indication of consent. The Community believes that the location of a clitoris in relation to a penis cannot be an indication of consent. The Community believes that any kissing or touching that precedes intercourse cannot be an indication of consent.

The Community believes women.

The Community acknowledges that a person is not obligated to say “no” for sexual activity with another person to be considered non-consensual and that consent is not presumed between sexual partners in a relationship. The Community believes that the Complainant’s communications with the Respondent during previous sexual encounters are entirely irrelevant. The Community acknowledges that yes means yes.

The Community believes the Complainant when she says she was fearful of speaking up during this encounter because she was afraid of the Respondent in light of the December 4 argument (when Respondent threw keys across the apartment and stood naked in front of a door). The Community believes women. The Community recognizes that the Respondent’s behavior on December 4 is violent and intimidating and determines that it would make a reasonable person fearful.

Taking into consideration abuse dynamics and the psychology of trauma, the Community recognizes no disconnect between the Complainant’s behavior after the alleged assault and her assertion that Respondent was an erratic and violent partner. The Community acknowledges that emotional abuse can be as harmful as physical abuse.

In the days and weeks following the alleged assault, the Complainant continued to exchange and initiate texts, phone calls, and intimate video chats with the Respondent, invite him to her apartment, and cuddle in bed together, eventually culminating in her request to rescind the no contact order. The Community recognizes that abuse is often characterized by patterns of emotional manipulation and that the Complainant’s desire for contact with the Respondent does not contradict her simultaneous fear of him. 

In the December 18, 2015 Complainant email to Jessica Kennedy, she wrote, “this is not the first grey-area-of-consent sexual interaction he and I have had.”

The Community concludes that it is more likely than not that the sexual contact between Complainant and Respondent on the early morning of December 18, 2015 was not consensual. The Community concludes that the Respondent did not have the Complainant’s consent and acted without considering her agency or well-being, behavior in line with his previous violent, intimidating actions. Accordingly, the Community believes the Respondent raped the Complainant on December 18, and will endeavor to protect the safety and healing of the Complainant.

Notes on Process:

I chose to translate the document by presenting the same statements and information to a different Panel: a group of women from the Complainant’s community. I’m interested in how informal community groups succeed and fail at supporting survivors of rape and determining what to do in cases of sexual violence within a scene.

As I reimagined the document, I felt a strong desire to grant justice to the Complainant, a desire wholly bound up in my own experience as a helpless, very young survivor and a frustrated ally. Although granting the Complainant justice feels irresponsible in a way—I don’t want this one good outcome to suggest that all scenes/communities believe and support survivors of rape; they absolutely do not—I decided to let myself do it. This decision speaks to another important truth about how we deal with rape: It’s almost impossible to navigate the problem of rape without being influenced, consciously or not, by one’s own rape trauma.