⚠️Content warning: sexual violence⚠️
Statement 1: “He said everything was okay and then she began crying, also that he had been trying for a while and that he had finally cracked it.”
Statement 2: ”A reluctant consent is still a consent.”
Statement 3: ”I tried twice, like she might have said ‘no, no’ a few times but it wasn’t dozens of times.”
This week, Indian Premier League (IPL) franchise Royal Challengers Bangalore (RCB) announced that they had signed a 29 year old New Zealand international. His name is Scott Kuggeleijn, and for all the wrong reasons, he is not just another cricketer.
In July 2015, in connection with events that took place on the night of 17 May of that year, Kuggeleijn was arrested and charged with rape. He was tried twice, first in 2016 when a hung jury could not return a verdict and again in 2017 when he was not found guilty.
A month after the second trial, Kuggeleijn was selected for a New Zealand senior squad for the first time. He made his debut soon after, and has become a regular member of New Zealand’s T20I squads. He played the full 2020 season of the Caribbean Premier League (CPL), and RCB are the second IPL team to sign him as a replacement in as many years. His career has taken off.
New Zealand Cricket’s only comment after his acquittal was that they “respected the court process and [were] not in the business of relitigating the past…[The court is] the most appropriate forum for judging matters as serious as this.” This, of course, completely missed the point.
Nobody has asked New Zealand Cricket, or any of his franchise teams, to relitigate anything. Nobody has asked them to judge the legal facts of the case.
But as the responses to RCB’s tweet announcing his signing revealed, many, many people are dismayed that someone who showed no indication whatsoever of understanding that he had done anything wrong was rewarded with national selection, and lucrative T20 franchise contracts.
How are you ok with signing this man pic.twitter.com/L1o9dTGOqm
— Anjali || Check Pinned 📌 (@PeerViTuu) April 28, 2021
Fr? BCCI suspended two players for talking about women like crap (and no not saying that was unreasonable) and y’all have the audacity to hire someone with serious allegations against him, which he’s even confessed to? Any shame left?
— Loco Cocoa is so disappointed by RCB (@wannabepanda7) April 28, 2021
Consequences? Not So Much
We are no more interested in relitigating the past than New Zealand Cricket were. But neither are we interested in ignoring it. Let’s look again at the statements we began with, and see if we aren’t deeply uncomfortable with the idea of treating Kuggeleijn like any other cricketer.
Statement 1 is from the survivor’s flatmate, called as a prosecution witness, referring to remarks Kuggeleijn made to her soon after the events of 17 May 2015. Note the casual admission that the survivor started to cry, think about what ‘trying for a while’ means, and in particular do not miss the callous and congratulatory use of ‘finally cracked it’.
Statements 2 and 3, made respectively by Kuggeleijn’s lawyer Philip Morgan and Kuggeleijn himself, come from the opening of their defence – but what an insubstantial ‘defence’ it is. When one of the very first things you choose to say in your defence when in court accused of rape is to quibble over how many times the survivor said ‘no’, you are frankly taking the piss.
And as for the concept of ‘reluctant consent’, this is to say the least a contradiction in terms. To say the most, it’s a deliberate attempt to render rape convictions effectively impossible.
Survivors find justice hard enough to come by already. Professor Jan Jordan and Dr Elaine Mossman of Victoria University of Wellington conducted an exhaustive study into rape convictions rates, poring over case files from police forces across New Zealand, and determined that only 28% of cases even make it to court. Of those, only 15% result in conviction.
Looking at the process as a whole, that’s 4.2% of rapes reported to the police resulting in conviction. The reasons for this appallingly low conviction rate are complex and deeply culturally ingrained, not just in New Zealand but worldwide, including in India where Kuggeleijn has secured his latest contract.
But when defence lawyers are successfully arguing that ‘reluctant consent’ is a thing, it becomes clear that the level of bastardry one would need to exhibit to actually be convicted of rape is almost impossibly high, and thus that the conversation around Kuggeleijn cannot stop at his acquittal.
Double, If Any, Standards
Let’s return to that second trial, and Morgan’s closing remarks to the jury: “[The survivor] couldn’t turn this man down yet again because she would then be thought of as a bitch or a tease. My client respected the complainant’s wishes at night when he could’ve had her so easily when she was drunk. That’s not the behaviour of a rapist, is it?”
Kuggeleijn was acquitted, and so the ‘behaviour’ he exhibited that May night in Hamilton is indeed not that of someone convicted of rape. But he did exhibit the ‘behaviour’ of someone who is prepared to cajole and coerce someone into sex; the ‘behaviour’ of someone who continues to make repeated sexual advances after the person he is with says ‘no’; and the ‘behaviour’ of someone who boasts about it afterwards.
Such ‘behaviour’ should be criticised, and the person exhibiting it should be held to account and educated about its consequences and why it is so damaging. Certainly it should not be ignored. As Professor Nicola Gavey of Auckland University wrote just after Kuggeleijn made his international T20 debut in January 2019, “doing nothing is not a neutral position.”
New Zealand’s authorities, both cricketing and civil, seemed to have the Kuggeleijn case in mind in 2018. The New Zealand Cricket Players’ Association (NZCPA) included a new section on sexual consent in their 2018/19 players’ handbook. The Wellington Police, in conjunction with the Sexual Abuse Prevention Network, launched a Christmas campaign telling Wellingtonians ‘Don’t Guess The Yes’. Explicit and specific consent was at the core of both.
— richard boock (@richardboock) October 9, 2018
Richard Boock, New Zealand Cricket’s Public Affairs manager, tweeted the above in October 2018. But four months later, the same man was forced to make a public apology for the heavy-handed behaviour of stewards at a game Kuggeleijn played against India in Wellington.
These stewards confiscated a banner that said ‘No Means No’ and removed the spectator holding it from their seat. The next match in Auckland, which Kuggeleijn also played in, saw even more protests including a sign directly aimed at New Zealand Cricket and several referencing the #MeToo movement.
By saying next to nothing to address Kuggeleijn’s actions, and continuing to select him, New Zealand Cricket and his T20 franchise teams are choosing to either entirely ignore the questions of sexual violence and consent, or subordinate them to cricketing concerns.
Either way, they would very much prefer if everyone forgot what he has done and said, but fans haven’t, and nor should they. Because for all the wrong reasons, Scott Kuggeleijn is not just another cricketer.