Jane Doe: To Serve and Protect- Karen Herland

Jane Doe was a feminist before she was raped. Jane Doe was political before she successfully sued the Toronto police force for discrimination and negligence. Jane Doe knew how to organize, and how to articulate connections between institutions and communities, before she became a public figure. And Jane Doe has another name that she shares freely, but that can’t be published.

Most stories about Jane Doe start in 1986, when she became the fifth woman to be sexually assaulted by the man known as Toronto’s Balcony Rapist.

When she reported her rape to the police, she learned that they were aware of his pattern, including when, where, and how he would assault. The police withheld that information to avoid causing panic among women in the neighbourhood. Not-yet Doe immediately called a press conference, distributed warning flyers, and risked arrest, with police threatening to charge her with impeding an ongoing investigation. The response to her flyers led police to her rapist.

In 1986, the Canadian Charter of Rights and Freedoms was only four years old, and rights groups, including the Women’s Legal Education and Action Fund, had the financial support to test its ability to defend the rights of all Canadians. A federal election featured party leaders in a two-hour televised debate devoted solely to women’s issues. If ever there was a time to challenge rape culture, that was it.

Calling herself “the right woman in the wrong place at the right time,” Doe decided to sue the police in civil court. Her case charged that the police were negligent in failing to warn women of the threat and were guilty of discrimination in their attitudes and assumptions about women and the crime of rape. After a lengthy battle, she won her case, a process she documents in The Story of Jane Doe (Random House, 2003).

She is, in her own words, fascinated by how rape is (mis)understood, deployed, and maintained in our culture. Doe’s work reveals how rape legislation and policy are used to control women’s behaviour, and to dismiss those women who challenge it. Her writing calls out the hypocrisy of the legal system, draws connections between sexually assaulted women and women who work in the sex industry, and speaks about how the pressure to individualize and minimize sexual assault keeps all women frightened and silent.

Jane Doe was the name given to her by the courts, a veil of anonymity, which, she points out, presumes she is the one who must protect her reputation (versus the perpetrator): “To a large extent, society demands Jane Doe-ism of all women — in the name of their own safety — as if there is safety in not being a woman and danger inherent in womanhood (especially if you take your womanhood out in public).”[i]

We sat down together this summer to talk about rape and how it operates. Here are some highlights of that conversation.

Jane Doe: What’s been hard for me is that people think I talk about rape. And our reaction to rape is fear-based. It’s women’s worst nightmare and men run screaming “that’s not me, that’s not me, that’s not me!”

I experienced that again this summer (when granted honorary doctorates at two university convocations). The citations that they were writing about me were really particular to my rape, and describing intimate details about my sexual assault. And I had to say – look, you are not giving me this honorary doctorate because I was raped. I mean, one in three women are raped, so get out the honorary doctorates if that’s your mission. They should all have one.

It’s interesting for me to allow people to look at the bigger picture of rape. Meaning the ways in which we live in a culture of rape, the ways in which all our institutions, religion, sports, media in particular, certainly the law, all support the status quo and stereotypes around sexual assault. All of our institutions collude with the police and the law in placing raped women as broken.

That is the status quo, that’s how we see and understand rape. I want to encourage people to look at how it is systemic in all our institutions and how we have to look at those pieces if we are ever going to address the problem. My case was about the fact that women are deprived of their equal rights to safety as guaranteed by our Charter of Rights: safety from discrimination, safety of the person based on your gender. Rape denies those charter guarantees whether you’re raped or not, because the fear is enough. The truth is most women are not raped or sexually assaulted, but they’re afraid of it.

Karen Herland: There’s a parallel with sex work. There’s the policing of it, but also the policing of everyone else. All the other women who are being told what lines they should and shouldn’t cross.

JD: Sex working women and sexually assaulted women — we use them to maintain the fear, to keep women in private spaces as opposed to public ones. … Until very recently, women who were raped had to have a witness.

KH: I was going to ask you about that, because when you were raped, the legislation had recently changed. They dropped the need for a witness, and expanded the definition of sexual assault.

JD: It’s the impression of change. That third-party witness has been replaced by the sexual assault evidence kit. A woman is not raped, a case is not opened, she is not believed until a doctor performs an invasive and very cruel if not terrorizing four-hour series of tests on her body. And it’s not until that doctor says yes, there was a rape, that the police open up a file on the case.

KH: And as you point out, not wanting to go through that invasive procedure is somehow an admission of responsibility…

JD: … and you won’t get to trial because the Crown Attorney will ask her why she didn’t want to do it, and if it was perhaps because she wasn’t telling the truth. And all of this is made worse by the fact that (the kits) are never used in court.

When I was sexually assaulted, I was a feminist, I was quite involved in the woman’s movement. I was in my 30s, I was politicized and I organized. One of the first groups to respond was a sex worker organisation called CORP, the Canadian Organization for the Rights of Prostitutes.

KH: So those were early allies for you.

JD: They were strong allies. The difference between them and the rest of the feminist movement (who also supported me immensely) was that sex workers didn’t see me as broken. Which was the response that I experienced the most in 1986, an understanding that trauma is the only possible response that any woman could have to the crime. What I wanted to do was to organize and do something about it.

KH: Which is analogous to the way that a lot of feminist organizations will just assume that anyone involved in sex work is somehow in trouble…

JD: Sexually assaulted women, and sex working women experience the same treatment. How legislation, policy, and police practice is similar around both those groups, and they are distinct groups. However, one group – women who are sexually assaulted – are sexualized by the crime that’s been committed against them, the other group – sex working women – are sexualized through their work. Sexualised, diminished, victimized … What I was looking at was the way sexually assaulted women are criminalized. We think they’re not, but they are. I was threatened with arrest by the Toronto police department if I continued to organize around my rape. Sexually assaulted women can’t be activists, sex working women can’t be activists. We’re too traumatized. The act has rendered us stupid, one would think.

KH: Any woman, in either of those situations, has to accept that she’s damaged in order to receive the protection and the legitimacy that the medical or courts…

JD: … or society in general ….you had better be passive. And you do not go out and demand your equal rights.

KH: Which is also where the publication ban comes in. There is an assumption that you would be shamed and embarrassed because of the situation. That is why Jane Doe exists…

JD: … and was enacted to encourage women to come forward, and be free from that shaming and blaming through anonymity.

KH: You were very vocal about your own experience, would you have been as vocal…?

JD: I never would have done it if I hadn’t been Jane Doe. That’s what they should have done, is said “we’re taking this away.” Because I would have walked. It kept me safe from public scrutiny and censure. I was crucified in the courtroom as all raped women who proceed into court are. If my name had been attached to that… it’s killing.

KH: The court decides you can’t be public, the court sets up the parameters of that discussion. That whole question of consent, be it around the rape kit or the publication ban, is always false because of the power imbalance that exists. The individual woman vs. the medical establishment vs. the court system. It comes back to that same question of protection. That whole system of policy makers who determine what level of protection is required and who deserves it.

JD: I think they assume women are stupid and can’t remember what happened to them. Or will get what happened to them mixed up with any other testimony that they hear.

KH: Or that they will become emotional… part of the basis for your civil suit was the fact that police practice assumed that women would become overly emotional if they were given information.

JD: “Hysterical” was their term — if they were aware of the reality that there was a rapist in their neighbourhood.

KH: Which bears out the fact, as you’ve said, that police are interested in enforcing the law, not necessarily in protecting women.

JD: The police’s job is to get the case to court. To do that, in their understanding, the woman has to be silent, passive. It would be better if she never spoke at all. The best case is if she’s dead. They don’t want you to say a fucking word, they will take care of it. And they do… and then we see them as rescuers. I personally want to know that if someone is breaking into my apartment, I can dial 911 and the police will come. We all want that aspect of it, so we’ve romanticized them.

KH: So, almost three decades later, has anything changed?

JD: No nothing has changed, you only have to look at the statistics — nationally, crime is down, except rape and sexual assault continue to escalate. Women continue to not report. The reasons they say they don’t report is fear of the police investigation and the court procedure. That’s not about fear, that’s about being smart. Why would we enter a system, where the conviction rate is 5%, nationally? Why would we enter a system that initially comes from a place of not believing us and we have to prove what happened, and we have to use their tools to prove it? It’s crazy, women get it.

KH: If you were in a position to reframe it, where you start?

JD: Where we start is where I am. We have to understand the nature of rape and sexual assault and how that fear is used to maintain inequality; and then how that manifests for racialized women, colonized women, women with disabilities, immigrant women. The problem is that we rush to solutions. Any legislation that we have seen is a band-aid that falls off almost immediately.

KH: Chatelaine named you Woman of the Year after you won your civil case. In 2012 you received honorary doctorates from two universities. This is a certain institutional recognition, what do you think is being recognized?

JD: I think I am a feisty rape victim. I took on the police and I won. I’m fearless but I’m not brave. I think it’s much more interesting to look at the courage to not report. I reported right away. I can touch that response right now it was fucking rage I was like no fucking way does somebody get to do this to me, but I had the privilege, right? And that goes to my decision to maintain the publication ban and remain Jane Doe… I don’t want to be individualized in this. My political work is to represent the broader issues. By staying Jane Doe, I get to advocate for all women. Because I’m the feisty rape victim, my voice is louder.

KH: how do you create those lines in your own life… there’s a public persona, and there’s a person.

JD: I don’t separate them… I am Jane Doe. Part of the reason I maintain Jane Doe is because I do many things in my life. I’m very public… I teach. So if my anonymity were broken, all of those things would fall away and I would be the rape victim. And I absolutely refuse to take that on.

KH: Yet when you speak, publicly you name yourself, it feels like you enter into a bond of trust with your audience…

JD: The publication ban is grossly misunderstood. People can take my picture, people can know my name… they just can’t disseminate it publicly. You can’t put it on the Internet, or in the newspaper…

I’ve been doing this for 25 years… no one has ever broken my ban. People want to respect it.

KH: Ultimately, as with so much of the other legislation we’ve been talking about, it’s more about policing other women than protecting the individual involved.

JD: It’s about recognizing the fear and the shame.

KH: But does that not also reinscribe the fear and the shame?

JD: Absolutely. It was enacted in order for women to come forward, but it’s designed to reinforce status quos. We like to think it’s helpful, and it is… it’s a shitty little scrap of safety that the courts throw at you. So a lot of that research I did is to ask: “If the woman is anonymous, is the crime anonymous?” And the answer is yes. It maintains the secrecy and the silence around sexual assault.

KH: You yourself would not have taken the position that you have over the years if you did not have Jane Doe as a shield with which to do that. Even as these laws are frustrating, to lose them would be to lose certain possibilities as well.

JD: If we were to understand the nature of the crime, we wouldn’t need them. We haven’t even taken a step towards that, or every step we’ve taken, we’ve taken two back. And, I’m sure there is a better way I could be doing it and I expect that some day I will come out. But that will be my choice and in a way that is advantageous to myself and my work, which is about not individualizing what has happened to me. In maintaining it, I am making people look at the reality that women who are sexually assaulted can’t use their real names.

Footnote:

[i] Jane Doe, “What’s in a Name? Who Benefits From the Publication Ban in Sexual Assault Trials?” in Ian Kerr, ed. Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society (New York: Oxford University Press, 2009), p. 26.

Image Credit: Shary Boyle and Random House.

Karen Herland was first called a stuck-up lesbian feminist bitch in 1984. She really doesn’t think she’s stuck-up.

Jane Doe: Among other things Jane Doe is the woman in the lawsuit Jane Doe v the Toronto Police.  Jane is also a writer, researcher, lecturer and former punk rocker.  An article she wrote on the use and efficacy of the rape kit (she’s against it) appears in Sexual Assault in Canada ESheehy ed. (University of Ottawa Press).