Thinking Sexual Difference Through the Law of Rape

2013 marks 10 years since the Sexual Offences Act 2003 was passed. That Act made significant changes to the law of rape which appear now to have made very little difference to reporting, prosecution or conviction rates. This article argues that the Act has failed against its own measures because it remains enmeshed within a conceptual framework of sexual indifference in which woman continues to be constructed as man’s (defective) other. This construction both constricts the frame in which women’s sexuality can be thought and distorts the harm of rape for women. It also continues woman’s historic alienation from her own nature and denies her entitlement to a becoming in line with her own sexuate identity. Using Luce Irigaray’s critical and constructive frameworks, the article seeks to imagine how law might ‘cognise’ sexual difference and thus take the preliminary steps to a juridical environment in which women can more adequately understand and articulate the harm of rape.     

Can a Woman Rape a Man and Why Does It Matter?

Under current UK legislation, only a man can commit rape. This paper argues that this is an unjustified double standard that reinforces problematic gendered stereotypes about male and female sexuality. I first reject three potential justifications for making penile penetration a condition of rape: (1) it is physically impossible for a woman to rape a man; (2) it is a more serious offence to forcibly penetrate someone than to force them to penetrate you; (3) rape is a gendered crime. I argue that, as these justifications fail, a woman having sex with a man without his consent ought to be considered rape. I then explain some further reasons that this matters. I argue that, not only is it unjust, it is also both a cause and a consequence of harmful stereotypes and prejudices about male and female sexuality: (1) men are ‘always up for sex’; (2) women’s sexual purity is more important than men’s; (3) sex is something men do to women. Therefore, I suggest that, if rape law were made gender neutral, these stereotypes would be undermined and this might make some (albeit small) difference to the problematic ways that sexual relations are sometimes viewed between men and women more generally.     

Sexuality, substance use, and susceptibility to victimization: risk for rape and sexual coercion in a prospective study of college women

An 8-month prospective study examined behavioral, personality, and psychological variables thought to increase vulnerability for college women's experience of rape and verbal sexual coercion. Participants were 276 college women who completed self-report surveys. During 1 academic year, 9.5% of women were raped and 11.7% reported verbal sexual coercion. Elevated levels of sexual concerns, dysfunctional sexual behavior, and impaired self-reference were associated with both verbal sexual coercion and rape. Alcohol and marijuana use increased risk only for rape, whereas self-criticism and depression increased risk only for verbal coercion. Findings suggest that multiple aspects of sexuality, such as shame regarding sexuality and using sex to meet nonsexual needs, may increase risk for both types of sexual victimization. Results support conclusions that rape and verbal sexual coercion have both shared and unique risk factors. Implications for future research and intervention programs are discussed.     

Burundi’s rebel groups and the stigmatisation of wartime sexual violence

ABSTRACT

Despite assumptions about the ubiquity of wartime sexual violence, some armed actors work hard to generate negative views of rape and other abuses. This article qualitatively explores rebel group stigmatisation (and stigma) of wartime sexual violence and prohibitive normative practices. Regularly discussed with reference to the shaming of victims or survivors, stigmatisation is nonetheless utilised here as a concept for understanding how sexual coercion is “made” deviant and consequential for potential perpetrators. Two rebel groups from Burundi’s civil war (1994–2008), CNDD-FDD (National Council for the Defence of Democracy-Forces for the Defence of Democracy) and FNL (Palipehutu-Forces for National Liberation), are compared. The FNL stigmatised rape and sexual assault, and the nature and quality of its practices shaped negative social norms surrounding rape. The article’s main contribution is to demonstrate the need to deepen and widen the evidence base on the prevention of wartime sexual violence.     

Smoke Free? Public Health Policy,Coercive Paternalism,and the Ethics of Long-Game Regulation

Contemporary public health advocacy promotes a ‘fifth wave of public health’: a ‘cultural’ shift wherein the public's health becomes recognized as a common good, to be realized through concerted developments in the institutional, social, and physical environments. With reference to examples from anti-tobacco policy, in this article I critically examine the fifth-wave agenda in England. I explore it as an approach that, in the face of liberal individualism, works through a ‘long-game’ method of progressive social change. Given the political context, and a predominant concern with narrow understandings of legal coercion, I explain how efforts are made to apply what are presented as less ethically contentious framings of regulatory methods, such as are provided by ‘libertarian paternalism’ (‘nudge theory’). I argue that these fail as measures of legitimacy for long-game regulation: the philosophical foundations of public health laws require a greater – and more obviously contestable, but also more ambitious – critical depth.     

Sex and Capacity: The Management of Monsters?

The first consideration by a civil court of the test of capacity to engage in sexual relations – X City Council v MB, NB and MAB – is as recent as 2005. This article places this and subsequent cases in the historical context of the way in which the law has constructed the sexuality of persons with intellectual impairment. The article argues that, beginning with a series of rape cases in the mid to late nineteenth century, which recognised the concept of consent given through the expression of animal instincts, the law has accepted and deployed a model of intellectual impairment which understands expressions of sexuality in terms of an increasingly unstable opposition between vulnerability and danger, understood as the presence or absence of instinct, and as indicating an underlying ‘monstrosity’. The article argues that the historical continuity apparent in the modern case law is unfortunate and should be rectified.     

Rights,women, and the state of Pakistan

Violence against women is a problem around the world. Addressing the issues of physical and sexual violence against women has been a complicated endeavor for criminologists. Much of the traditional criminological research on violence against women has frequently focused on rape as a crime of power between individuals. However, this framework has been expanded to incorporate the analysis of rape during times of war and rape as a state crime. In these cases, rape serves a broader purpose within the military and social structure. By focusing on the specific case of the gang rape of Mukhtar Mai, the goal of this paper was to demonstrate and analyze the role of the state in many of these crimes. Mukhtar Mai’s case should not be understood in isolation, but as a way to illuminate the role of the state in these numerous crimes.     

College Women and Sexual Assault: The Role of Sex-related Alcohol Expectancies

This study examined the relationship between alcohol, sex-related alcohol expectancies, and sexual assaults among women college students. Participants completed measures of sexual behaviors, sexual victimization experiences, sex related alcohol expectancies, and drinking habits. Based on participants’ responses women were categorized as having experienced no assault, unwanted sexual contact, sexual coercion, attempted rape, and rape. It was observed across groups that relative to controls, women reporting attempted rape and rape consumed higher levels of alcohol. Within group comparisons revealed that relative to controls, victimized women endorsed higher levels of sex-related alcohol expectancies. In the prediction of severity of sexual victimization, regression analyses revealed an interaction between alcohol consumption and expectancy of vulnerability to sexual coercion. At higher levels of alcohol consumption women endorsing high vulnerability to sexual coercion experienced more severe victimatization. Implications of the findings are discussed. This work was conducted in partial fulfillment of the requirements for the Doctor of Philosophy degree by the first author under the direction of the third author.     

Forgotten victims: students’ attitudes towards and responses to male sexual victimisation

This paper will examine students’ attitudes and responses to male sexual victimisation in England. In particular, it focuses on their thoughts, beliefs, views, and understandings of male rape. It does this by empirically researching male rape with the use of qualitative questionnaires, from 100 students of a university in West Yorkshire, England. There are some serious concerns that were highlighted by the findings. For example, the myths that “male rape is not a serious issue” and “male rape is solely a homosexual issue” (and more) emerge from the findings. This warrants close attention and analysis, given that students are a part of the community in which male rape often occurs. This paper outlines the implications of the findings. It argues that, in certain contexts, students’ attitudes and discourses about male rape are being shaped and re-shaped; this suggests that their thought patterns are fluid with regard to male rape, shaped by the contexts in which they are situated.     

Young adult sexual offenders with emerging personality disorders: developmental and offence-related characteristics and treatment engagement

ABSTRACT

In the context of the UK Government’s Offender Personality Disorder (OPD) Strategy, large numbers of high-risk young adult sexual offenders with emerging personality disorders are being screened for inclusion onto specialist intervention pathways (the OPD Pathway). However, little is currently known about the clinical and offence-related needs of this population or their impact on treatment engagement. The current study investigated the developmental, personality and offence-related characteristics of 87 incarcerated young adult sexual offenders, comparing those screened in to the pathway and those not screened in. Fifty per cent of the sample were potentially eligible for the OPD pathway. OPD eligible cases were found to have significantly higher rates of parental difficulties, developmental trauma, and childhood behavioural difficulties and to present with significantly higher rates of previous violent and sexual offences, previous allegations of sexual offences, and to have used physical coercion in their offences. The OPD sample was also significantly less likely to have pre-pubescent victims and more likely to refuse treatment, with over 70% failing to engage with the Sex Offender Treatment Programme (SOTP). SOTP non-engagement among OPD cases was most strongly predicted by categorical offence denial. Comparisons are made with the broader adolescent sexual offender literature.     

Nussbaum on Sexual Instrumentalization

In “The Wrongness of Rape”, Gardner and Shute argued that the English offence of rape primarily targets the wrong of objectification. They tie objectification closely to instrumentalization—to the “conversion of subjects into instruments or tools”. In doing so, they explicitly purport to follow Nussbaum’s understanding of what is morally problematic about objectification. In this paper, I want to explore more closely just what Nussbaum understands by instrumentalization, focusing in particular upon the meaning and role of mutuality in her analysis. Doing so gives us insight into why sexual touching in three broad contexts may not be considered instances of instrumentalization: spontaneous sexual touching in a romantic context; non-spontaneous sexual touching in the context of intimate relationships; and prostitution. The last point may be most controversial given Gardner and Shute’s own stated view that prostitution involves instrumentalization. Even when we look to sexual touching in intimate relationships, however, Nussbaum seems to introduce ideas of implied consent that appear nowhere in Gardner and Shute’s paper.     

The genomic data deficit: On the need to inform research subjects of the informational content of their genomic sequence data in consent for genomic research

Research subject consent plays a significant role in the legitimation of genomic research in Europe – both ethically and legally. One key criterion for any consent to be legitimate is that the research subject is ‘informed’. This criterion implies that the research subject is given all relevant information to allow them to decide whether engaging with a genomic research infrastructure or project would be normatively desirable and whether they wish to accept the risks associated with engagement. This article makes the normative argument that, in order to be truly ‘informed’, the research subject should be provided with information on the informational content of their genomic sequence data. Information should be provided, in the first instance, prior to the initial consent transaction, and should include: information on the fact that genomic sequence data will be collected and processed, information on the types of information which can currently be extracted from sequence data and information on the uncertainties surrounding the types of information which may eventually be extractable from sequence data. Information should also be provided, on an ongoing basis, as relevant and necessary, throughout the research process, and should include: information on novel information which can be extracted from sequence data and information on the novel uses and utility of sequence data. The article argues that current elaborations of ‘informed’ consent fail to adequately address the requirements set out in the normative argument and that this inadequacy constitutes an issue in need of a solution. The article finishes with a set of observations as to the fora best suited to deliver a solution and as to the substantive content of a solution.     

Finding the Balance: Intoxication and Consent

Sexual offences in England and Wales have had a dramatic reimagining in the last 15 years, with the Sexual Offences Act 2003 establishing not only the boundaries of the most heinous of offences such as rape, but also defining one of the most important elements; consent. This article seeks to explore the problems that surround establishing if legally valid consent has been given, with particular regard for cases where voluntary intoxication takes centre stage. The problem that often arises is the question on whether or not an intoxicated victim had the capacity to consent, or establishing if she did consent when memory of the event is hazy, possibly from both parties. Using comparative analysis with other jurisdictions and their take on the offence of rape, the author seeks to discover if the current rules are sufficient to fit within twenty-first century western culture. The victim will be referred to as ‘she’, although the law here and all situations discussed are equally applicable to male rape.

     

Why Is There a Strong Positive Correlation Between Perpetration and Being a Victim of Sexual Coercion? An Exploratory Study

The purpose of this research was to determine if the correlation between perpetration and being a victim of sexual coercion is due to a lack of self-control, a coercive lifestyle, or dysfunctional romantic relationships. Two hundred and sixty-two college students completed measures of perpetration and being a victim of sexual coercion, lack of self-control, coercive lifestyle, romantic partner’s coercive lifestyle, and partner’s perpetration and being a victim of sexual coercion. Support was not found for the lack of self-control and coercive lifestyle explanations; support was found for the dysfunctional relationships explanation. Multiple regression analyses found that the self-control variable that best (negatively) predicted both perpetration and being a victim of sexual coercion was valuing long-term, committed romantic relationships. Interventions to prevent perpetration and being a victim of sexual coercion should focus not only on the individual victim/perpetrator but also on promoting functional romantic relationships.     

Differential predictors of intimate partner sexual coercion versus physical assault perpetration

ABSTRACT

The current study attempted to strengthen existing literature regarding predictors of perpetrating intimate partner sexual violence to determine if there are unique predictors of sexual violence that differentiate it from physical abuse. It was hypothesised that men’s controlling, dominant and jealousy behaviours, and verbal aggression would significantly predict increased intimate partner sexual coercion and physical assault perpetration. These predictors were expected to be more predictive of sexual coercion than physical assault perpetration. Couples were recruited from the community (N?=?159) in a cross-sectional study recruiting couples with a violent male partner. Results demonstrated that men’s controlling behaviour was a significant predictor of sexual coercion and physical assault perpetration and behavioural jealousy was a significant predictor of sexual coercion perpetration. No predictors studied better predicted sexual coercion more than physical assault perpetration. These findings suggest that sexual coercion may be another type of physical assault without unique predictors.     

Fear of Crime among College Students: A Test of the Shadow of Sexual Assault Hypothesis

Women’s fear of rape and sexual assault has been both theoretically and empirically linked to their fear of other types of crimes, a phenomenon referred to as the shadow of sexual assault hypothesis in past research. This thesis has been supported across specific populations (i.e., the general population of women in the United States and college women in the United States), but the research examining the shadow of sexual assault hypothesis has suffered from methodological limitations. The current research corrected these limitations and performed a test of the shadow of sexual assault hypothesis among college and university students across temporal situations and victim-offender relationships. The findings indicate that women’s fear of rape and sexual assault does impact their fear of nonsexual crimes across temporal situations and victim-offender relationships.     

What constitutes a “reasonable belief” in consent to sex? A thematic analysis

Abstract

The prosecution of rape frequently requires a jury to decide whether the defendant reasonably believed that the complainant consented to sexual intercourse, thereby assuming a shared understanding of what constitutes a “reasonable belief in consent”. This study provides a thematic analysis of interviews with 18 university students, studying in London, UK, to explore their perceptions of “a reasonable belief in consent” when considering other people's behaviour. The findings suggest that whilst these participants rejected many stereotypical ideas in judging reasonable belief in consent, the discussion regarding vulnerability, responsibility and the consumption of alcohol was less clear-cut. Discussions frequently sought to avoid directly blaming the victim for being raped, but would instead blame her for getting drunk or otherwise “allowing” herself to become vulnerable. The implications of these findings for the prosecution of rape and wider public education are considered.     

Perceived conflict patterns and relationship quality associated with verbal sexual coercion by male dating partners

The study of verbal sexual coercion in heterosexual relationships is controversial because nonphysical coercive tactics are often viewed as socially acceptable. It was hypothesized that, within couples, verbal sexual coercion will occur within a larger context of destructive conflict tactics and diminished relationship quality. Female undergraduates in consensually sexual dating relationships (N = 193) provided self-report data on male partner verbal sexual coercion perceived conflict behaviors, and relationship quality. About 21% reported current partner verbal sexual coercion. Results reveal positive associations between feeling pressured into unwanted sex and perceptions of partner psychological abuse and destructive verbal conflict patterns. Also as expected, partner verbal sexual coercion is negatively associated with relationship satisfaction and sexual functioning. The authors conclude that women's experiences of verbal sexual coercion in heterosexual relationships may reflect broader problems in the dyadic context.     

Social perception of rape victims

Since 1975, 40 states have enacted “rape shield” statustes which limit the admissibility of a rape victim's prior sexual history in court. These reforms have assumed that jurors regard prior sexual history evidence as much too probative of a victim's credibility and moral character, and that such perceptions have a prejudicial impact on the outcome of the jury decision process. The present research adopted an attributional analysis in order to examine the extent to which the types of legal reform affect social perception of the victim as well as the conviction rate in a videotaped consent defense rape trial. A large-scale jury simulation experiment was conducted with qualified jurors from the Minneapolis-St. Paul metropolitan area. Jurors either viewed an Improbable or Probable Likelihood of (victim) Consent version of the trial, with admission of prior sexual history evidence governed by one of three types of exclusionary rules. The results lend credence to the reformist contention that a rape victim is “on trial” along with the accused. Jurors were reluctant to convict when any testimony about prior sexual history was introduced. Moreover, jurors' close scrutiny of the victim's credibility and moral character was directly related to the conviction rate. Only the most restrictive evidentiary rule, when applied to an Improbable Consent case, curtailed the inference of victim consent, enhanced victim credibility, and increased the likelihood of conviction. Some of the legal and attributional implications of these findings were discussed.     

The dilemma of ‘racial profiling’: an abolitionist police history#

While the conquest of the world by the concept of ‘racial profiling’ was a major victory for activists, real victory for racial justice at the hands of the police was foreclosed, for the notion is a Trojan Horse. Snuck inside this term developed for radical purposes are distinctly conservative propositions. This paper analyzes the ways the individualizing implications of the concept of racial profiling mask the depth and reach of the state’s commitment to containing resistance and eliciting consent by deploying technologies of race. Against ‘racial profiling’s’ suggestion of incidental, improper police practice, this essay offers a history of the U.S. police that shows their deep and abiding commitment to reproducing race and racism. Tracing police history in relation to colonialism and slavery, the essay argues that the history of this fundamental instantiation of state racism leaves no hope for successful reform, but rather demands a practical and thoughtful commitment to police abolition.