by Anna Krien
Published May, 2013
Writing about rape is difficult. Not because it is a taboo subject – although to a degree it still is – but because of the need to balance the right of both the complainant and accused to be presumed innocent. While it might be comforting to think about sexual violence and its associated legal issues in black and white terms, it is rarely possible to do so. Even a concluded trial will not necessarily satisfy onlookers that justice has been served. And as Anna Krien points out in Night Games, many people are aware of how few rape cases get to trial, so even with a not guilty verdict, a stigma can remain. Similarly, as the response to the conviction of UK footballer Ched Evans in 2012 for sexual assault shows, a guilty verdict can be treated with suspicion. Evans’ family, friends and (allegedly) teammates took to social media to condemn the victim as a ‘money grubbing tramp’, with several releasing her name.
Initial responses to Night Games have either been lavish in their praise or, in a few cases, scathingly critical. My own response lies somewhere in between, which seems appropriate, given the book’s emphasis on ambiguity and shades of grey. While writing this essay, I have continually asked myself, ‘What do I think of Night Games?’ I don’t really have a simple answer. The book breaks important new ground, and goes a long way toward promoting an understanding of the relationship between football, sex and sexual violence. However, as someone who has spent the past eight years researching rape and sport and the ways in which complainants’ testimonies are systematically discounted, I am conscious of the subtle elements of the book that contradict or undermine its progressive project, which stand out and colour my overall impression.
It is important to understand the background to Krien’s subject. Sexual assault cases involving Australian footballers have become a hot topic over the last ten years. Strong opinions are stated and competing agendas furthered, in media of all kinds, but rarely is the subject considered in a balanced or nuanced way. While cases involving high-profile players from the Australian Football League (AFL) and National Rugby League (NRL) have dominated the media, Krien has chosen to examine a court case involving an unknown local league footballer. In the media, this case was little more than a side-note to a story involving Collingwood footballers Dane Beams and John McCarthy, who were accused of raping a woman in a South Melbourne townhouse after their team’s 2010 Grand Final victory. ‘Justin Dyer’ (a pseudonym), a friend of the Collingwood players, was alleged to have raped the women Krien calls ‘Sarah Wesley’ in an alleyway outside the townhouse shortly afterward. Neither Collingwood player was charged. Justin was acquitted at trial in 2012.
Night Games is not simply an exploration of a particular case. It lays bare football’s problematic sexual culture, which treats women as objects for men’s sexual use. It also highlights flaws within the legal processes that are in place to deal with rape cases. In a non-judgemental and engaging style, Krien presents her book as a consideration of the wider issues of rape, sex, sport and law. This is a very powerful approach, as rather than presenting herself as having all the answers, she describes the path she took to arrive at her conclusions. She speaks to former police officers, lawyers and rape experts, and uncovers some of the extensive research into rape and rape culture. The reader sees her coming to grips with complexities and ambiguities, some of which do not initially sit well with her. In a significant step for discussions about the link between football culture and sexual violence, she highlights many of the issues that make justice difficult to obtain for rape victims. She also exposes the tension between the need to advocate for victims and uphold the presumption of innocence on both sides. The book makes it clear that there are no easy answers, no quick-fix solutions.
Over the past decade, more than twenty cases involving at least 55 elite Australian footballers and club staff have been reported in the Australian media. The issue of footballer sexual assault first became big news in 2004, when six NRL players from the Canterbury Bulldogs were alleged to have gang-raped a woman by a hotel swimming pool, although they were not charged. Two weeks later, AFL footballers Stephen Milne and Leigh Montagna were under investigation for rape. After separately having sex with two women, the St Kilda players were alleged to have swapped partners without the women’s knowledge or consent. Although no charges were laid at the time, Milne is now facing court over the incident.
In 2004, a lot of the media coverage was dedicated to ‘explaining’ why so many elite footballers are accused of sexual assault. Much of this involved victim-blaming stories. Thus a lot of the discussion around the 2004 cases was about the behaviour of women. The focus was on what would lead a woman to make a (false) rape complaint, and sometimes on the behaviour of footballers that might also play a role in this. Many commentators – both mainstream and on social media – claimed that ‘these women’, these ‘groupies’, were crying rape because they wanted more than a one-night stand and the footballers had rejected them. Groupies wanting to sleep with any and all footballers, predatory women who hunt them down for sex, women scorned who make false rape complaints for money – these were (and still are) commonly circulated stories. Despite the fact they are myths and stereotypes with no real basis in fact, these stories have such common currency that they are often believed in preference to the complainant’s testimony. They are so powerful that even authors and journalists who actively strive to avoid victim-blaming are sometimes unable to avoid them.
By 2009, when NRL player Brett Stewart was charged with sexual assault, increasing frustration with the lack of criminal proceedings led some to condemn footballers’ behaviour more openly. This was particularly the case with their admitted practices, such as group sex, but details that suggested footballers’ guilt – from Stewart’s committal hearing, in particular – were also foregrounded. For example, one of the first articles to report on the hearing led with the statement: ‘Brett Stewart’s pants were undone and his “old guy” was visible when a father confronted the Manly rugby league star about sex assault claims, a court has been told.’ When a jury acquitted Stewart in 2010 and Good Weekend ran an article on how the case may have been fabricated by the complainant’s father, it became apparent that the issues can be more complicated than previously thought.
Krien’s book appears in this context. The title refers to off-field, mostly sexual interactions between footballers and women. These ‘night games’ lack clear rules and are fraught with blurred lines and crossed boundaries. This ‘grey zone’, as Krien terms it (a problematic appropriation, for reasons I will come to), can make it difficult to distinguish rape from sex, and to separate myths and stereotypes from human beings acting and interacting. In this grey area, the law cannot necessarily intervene in adequate ways. The outcome of Justin’s trial – acquittal – is portrayed in Night Games as unsatisfactory, not because the accused was clearly guilty, but because it seems unresolved. Krien sees aspects of Justin’s behaviour as blameworthy and unethical, even if they do not fit a legal definition of sexual assault. ‘Treating women like shit shades into a culture of abuse, which in turn can shade into rape,’ she concludes, encapsulating one of the central cultural problems. In the midst of her questioning, exploratory style, this no-nonsense statement pulls the reader up short: here is the bottom line. Although Krien does not use the term, in highlighting the similarities in the football world between consensual sexual practices and rape, she is describing a ‘rape culture’ – that is, a culture in which rape is more likely than it is in other social contexts.
Krien’s work undercuts the stock characters familiar from media reports, opinion columns, social media and blogs, instead portraying people with a range of motivations and behaviours. Indeed, she debunks many ingrained assumptions. She highlights, for example, the legitimate reasons why some victims lie about aspects of their case. She also uses her own impression of Justin to undermine the popular perception of the typical rapist as a sadistic stranger hiding in the bushes. In showing this to be a stereotype, Krien highlights how damaging it is, since it can make people reluctant to apply the label in situations that do not correspond to the received view. Citing examples of some prominent people who have drawn problematic distinctions between ‘rape’ and ‘rape-rape’, which mirror the stereotypes, Krien invites the reader to reconsider their own perceptions of what rape really is. She also includes testimony from several other women who say they have been raped by prominent footballers, including ‘Clare’, who appeared on Four Corners in 2009, testifying that up to a dozen Cronulla Sharks players, including star Matthew Johns, raped her in a Christchurch hotel room. Krien emphasises the women’s trauma, through their own words. She also incisively criticises the football world’s inadequate response, as well as the conservative media.
Instances of group sex, which Krien argues should be called ‘gangbangs’ to reflect the abusive nature of the practice, have featured in media reporting of football sexual assault cases since the Canterbury Bulldogs incident in 2004. In fact, more public outrage was directed at this admitted practice – even when it was consensual – than at the possibility that footballers may have committed rape. Krien illuminates the problems with applying ‘consent’ as a standard in these situations. She is rightly critical of conservative columnist Miranda Devine for suggesting that women should be the regulators ‘and ultimately the suppressors of men’s sexual behaviour’. Obtaining informed consent, she observes, ‘negates the entire point of a gangbang’, which treats the central woman as a ‘piece of meat’. As Krien argues, the real problem with footballers’ gangbangs is that they dehumanise the woman to the point where the kind of sexual communication which would establish ‘true’ consent seems ludicrous.
Krien also shows that the culture where abuse can ‘shade into rape’ is entrenched and extends well beyond sexual encounters. It is not only the case that many sexual interactions dehumanise the women involved; reluctance to accept women as authorities, disrespect toward female journalists, and valorising women only for performing service roles remain significant problems. The examples of prominent sports journalist Jacquelin Magnay’s struggle for recognition and other women who have suffered similar kinds of discrimination at the hands of the AFL, and the objectifying treatment of WAGs (wives and girlfriends), are important for understanding women’s position within the football world, since they contradict the AFL’s and NRL’s public images as family-friendly and inclusive.
Krien’s exploration of the law and legal process frequently challenges idealised perceptions of truth and justice. Her depiction of the prosecutor, defence counsel and judge agreeing on what could and could not be brought up at Justin’s trial highlights how the legal process is not about exposing the whole truth of what happened and the events that led to the alleged rape. The three men agree not to allow into evidence anything that happened in the bedroom of the townhouse, where Sarah said the Collingwood players raped her, nor anything that might lead a witness to mention it. Krien observes:
It was like two enemies laying down the rules of engagement before going to war. And yet, it seemed to me that the true aspects of the war, the very reasons for going to war, were being smothered.
Krien implies that the court’s insistence on treating the incidents as separate does not allow enough context for an outsider – i.e. a juror – to interpret the events. This aptly highlights the ambiguous relationship between law, justice and truth.
Then there is the fraught but important issue of complainants not being entirely truthful, which addresses a key problem that many victims face. It is particularly difficult to negotiate because rape complaints are often treated with suspicion and there is a widespread tendency towards disbelief. Krien explains the ‘double bind’ in which victims find themselves: they are often disbelieved if they have acted contrary to expectations – that is, in ways not consistent with popular understandings of how ‘real’ victims behave – and they are doubly disbelieved if they are found to have lied about their actions because they feared they would not be believed. The apparent inconsistencies in Sarah’s story regarding attempts to contact a friend are thus contextualised, and Krien asks the reader not to discount her entire testimony because of them.
Nevertheless, there are moments where Night Games subtly reinforces problematic myths and stereotypes. Following her critique of Devine, Krien recounts a story from Helen Garner’s The First Stone (1995), where Garner writes of how a stranger on a train asked her for a kiss, and she ‘let him’ kiss her (but without giving any indication that this was what she desired). Krien writes:
Is this the grey zone I’m trying to put my finger on, that glacial space between a man’s action and a woman’s reaction? And in that slow, underwater space, is it a race? To see how far, how much he can get in before she surfaces? Or is he also underwater? Must he become an interpreter of smiles? How many women and men are caught out in this grey zone?
Underlying this series of questions is the presumption that a man acts and a woman must react in order to stop him. It is based on the idea that it is okay or even desirable for sex to be ‘wordless’, which anthropologist and rape scholar Peggy Reeves Sanday has argued can lead to all kinds of misinterpretations. Back in the 1990s, the ‘affirmative consent standard’, which holds that both parties need to freely and expressly agree to any sexual activity, was taking hold on US college campuses. Rather than interpreting smiles, Krien’s hypothetical man could just wait for the hypothetical woman to say that she wanted him to kiss or touch or have sex with her. As Sanday points out, when sex is played as a game of conquest, where verbal consent is not sought, some women will ‘feel violated’ (read: have been raped) because the sex was against their will. Interpreting this kind of scenario as a grey area implies that women need to stop men from raping them, rather than putting the onus on men to find out whether their advances are desired or not. This undermines Krien’s explicit critique. At times, she implies the guilt of the complainant, without specifying what she might be guilty of: ‘Did she think a finding of rape would absolve her, and if so, for what did she want absolution?’ Absolution is only required if one has done wrong.
Krien is critical of the legal requirement for a person accused of rape to hold an ‘honest belief that is reasonable in the circumstances’ that the complainant was consenting. She takes this to mean that any honest belief, no matter how ridiculous, can be used to acquit. This is somewhat true in many legal jurisdictions, and the fact that a belief is unreasonable should not be considered grounds for conviction in and of itself, but is it not true that what a jury considers to be reasonable does not play a significant role. Juries often determine whether belief in consent is honest based on whether it is reasonable. They are less likely to believe an accused who says he honestly believed something unreasonable than an accused who says he believed something reasonable. But what constitutes ‘reasonable’ in a juror’s mind? As there are no legal guidelines for such a decision, jurors rely on their own beliefs. As many rape myths are still commonly believed, they can determine what will be considered an ‘honest’ belief.
Krien’s approach to Sarah’s self-imposed silence seems to reflect a narrow view of what empowerment means. She juxtaposes that silence with the example of Savannah Dietrich, a rape complainant who faced her attackers in court and publicised their names via social media in defiance of a court order. ‘In a sense,’ writes Krien, ‘Dietrich became empowered’: by facing her attackers she was able to hold them accountable. By contrast, Krien notes that Sarah was allowed ‘to give evidence via remote camera, a screen that didn’t even include a sight-line to Justin in the dock,’ and asks: ‘was this as helpful or protective as reformers hoped it would be?’
Krien concedes that Dietrich’s case was different because her attackers had pleaded guilty, but she implies that Sarah, too, might have been empowered by facing Justin in court. Her position is at least mildly critical of any complainant who chooses anonymity and gives video evidence in a closed court. Yet the courtroom cross-examination is commonly known as the ‘second rape’ because it can be so traumatising. It forces a complainant to relive a traumatic experience and be accused of lying about it, as happened to Sarah. Many complainants describe the experience as like being placed on trial. Fear of facing the attacker in court is a reason many give for not pursuing criminal charges. If we are to maintain the presumption of innocence for complainants as well as the accused, then surely what makes the complainant feel confident, or even empowered, is a better measure than any outside standard.
Although she does not acknowledge the origin of the concept, Krien appropriates, somewhat problematically, Holocaust survivor Primo Levi’s concept of ‘the grey zone’ to characterise uncertainties and ambiguities when it comes to sex and rape. In Levi’s usage, the grey zone applies to the judgement of behaviour that is not in question (i.e. what occurred has been established), but which raises the question of whether or how those responsible should be judged. Levi refers to the concentration camp prisoners known as the Sonderkommando (special squad), who helped convince other prisoners to enter the gas chambers and later removed the bodies, in exchange for extra rations. They were usually executed every few months. Levi’s conclusion is that victims in such extreme circumstances should not be judged, either positively or negatively, for their behaviour. They should not be condemned, but neither can they be completely absolved.
Levi’s grey zone also refers specifically to victims whose behaviour is considered (judged) harmful to fellow victims, and not perpetrators. Krien, however, positions virtually all parties and their behaviour in her ‘grey zone’. Her focus on cases where it is unclear what actually happened implies that we would know how to judge the events and where to place blame if only we knew exactly what happened. Writing of the family of the accused, she asks: ‘Was there no uneasy grey zone for them, no wondering what exactly Justin and his mates were doing that night?’ The accused, his ‘mates’ and the complainant are all placed within the same grey area. This blurs the distinction between victim and perpetrator that Levi insisted needed to be maintained. While some feminist theorists, such as Claudia Card, have employed Levi’s ideas in valuable ways (and in contexts other than the Holocaust), uncritically generalising the concept to the extent that Krien does undermines its productive value in highlighting ambiguity. Instead, some fairly clear-cut issues are problematically cast as ambiguous and ill-defined.
Framing the entire second part of the book as ‘grey’ is problematic because much of the discussion is about things that are not really ‘grey’ at all. The (unjustified) scepticism directed at rape complainants, for example, and cases where complainants are dissuaded from pursuing the complaint for reasons based on sexist assumptions about the seriousness of rape, or other unrelated factors. It seems that Krien is attempting to mobilise the phrase ‘grey zone’ to broaden understandings of what rape might be, trying to move beyond the simple, clear-cut stereotypes about rape that are popularly believed – the ‘armed stranger jumping from the bushes’ scenario. While this is a commendable aim, by positioning all of these cases as ‘grey’ (particularly given that she continually expresses doubts about the central case), she perhaps inadvertently casts a shadow of doubt on all of them. As she points out, a large part of the problem with rape prosecution is popular disbelief and adherence to stereotypes; casting doubt over more cases is likely to reinforce disbelief.
In her conclusion, Krien anticipates criticism of her work from feminists, imagining them thinking her ‘a traitor to women for even suggesting that Sarah is not telling the exact truth, for not pointing the bone at Justin’. ‘Bone pointing’ would of course be unethical and illegal, and suggesting that the evidence shows the complainant may have lied about some aspects of the evening is not, in itself, anti-feminist – particularly since Krien contextualises it. But given the level of disbelief against rape complainants, and the strength of belief in popular stereotypes of women who lie about rape, taking a case where the complainant’s word is doubted as the centrepiece of a popular journalistic book has the potential to reinforce these beliefs rather than challenge them.
Choosing the case of Justin and Sarah as the central focus of the book also poses problems because Sarah chose not to speak on record, and thus her story can only be gleaned through the testimony of others – the prosecutor and her friends. Unlike Justin, Sarah does not appear in Night Games as a ‘character’ and her silence haunts the book (Krien mentions it and speculates about it at regular intervals). This makes it more difficult to sympathise with Sarah. In comparison, Krien’s prologue portrays Justin in a sympathetic light. This kind of journalistic narrative is driven by character, and when the complainant cannot appear as one, the portrayal will inevitably be one-sided, especially when the accused and his family feature so prominently. In addition, Krien only seriously questions Justin’s motives and provides possible explanations for Sarah’s inconsistent behaviour towards the end of the book. It thus almost becomes a story about what happened to a man after he was charged with sexual assault, rather than what happened to a woman who says she has been raped. While the inclusion of other complainants’ testimonies mitigates this to an extent, the portrayal of Justin and Sarah nevertheless has the potential to leave the impression that Justin is as much of a victim as Sarah, even if events occurred as she said they did.
I do not mean to condemn Krien for the problematic aspects of the book, particularly given the inherent difficulties in writing about sexual violence. Indeed, the book’s greatest problem may be the fact that it stands so alone in its treatment of sexual assault cases involving Australian footballers, in a culture that has a propensity to dismiss them or cover them up. When the mass media is the dominant public voice, subtlety and nuance are rare. As the first popular book to really wrestle with these complex issues, Night Games unavoidably bears the burden of speaking to and for all footballer sexual assault cases – a heavy responsibility.
Krien’s book is discomforting and may leave a reader with more questions than answers, more uncertainty about the cases than clarity or a sense of resolution, but in doing so it invites a greater engagement with the issues than a less challenging book might. I hope Night Games marks the beginning of a different kind of conversation about sex, rape, power and sport, and that its compelling uncertainties will prompt nuanced and productive debates for some time to come.