Rape law reform

This article examines how changes in rape laws have come about in New Zealand. It assesses early feminist influences and how, within a period of some ten years, these contributed towards an awareness in government of the need for legal change.The article examines some of the more significant aspects of the Rape Law Reform Bill (No. 2) 1984 which in its attempt to redefine rape must be seen as a radical departure from the common law concept of rape. Although the Bill is progressive from women's perspectives, the change of laws by itself is not sufficient while the actors in the criminal justice system retain unchanged attitudes to women and rape. The effectiveness of legal reform that moves ahead of social attitudes will be assessable only after the law has been in place for some years.     

Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape Law

Rape conviction rates have fallen to all-time lows in recent years, prompting governments to explore a range of strategies to improve them. This paper argues that, while the current legal impunity for rape cannot be condoned, increasing conviction rates is not in itself a valid objective of law reform. The paper problematises the measure of rape law that conviction rates provide by developing an account of (some) feminist aims for rape law reform. Three feminist aims and associated measures are explained—all of which look beyond conviction rates to qualitative and victim-centred outcomes of criminal justice processes. Applying these measures, I argue that strategies designed solely to increase conviction rates are more likely to work against, rather than in support of, feminist aims. The paper thus underscores the need for continued feminist engagement with rape law reform, broadly conceived, notwithstanding its acute limitations for feminist anti-violence politics.     

Extending the Reach of Human Rights to Encompass Victims of Rape: M.C. V. Bulgaria

This note analyses a recent case of the European Court of Justice in which the applicant, a 14-year old rape victim, alleged that Bulgarian criminal law violated her rights under Articles 3 and 8 of the European Convention of Human Rights in pursuing a practice of only prosecuting rape where there was evidence of the use of physical force and active resistance. In upholding the applicant’s claims, the Court re-affirmed the positive obligation on states to adopt measures to ensure that fundamental rights under the Convention were secured. In particular, in the case of rape, this required the enactment and application of criminal laws effectively prescribing all acts of non-consensual sex and not just those involving physical violence. In this way the Court affirmed not only that rape was, in essence, a violation of personal sexual autonomy but also that legal systems which failed adequately to protect against all forms of rape risked operating in breach of Convention obligations.Application no. 39272/98, 4 December 2003.     

The `Ideal' Victim v Successful Rape Complainants: Not What You Might Expect

This article proposes that feminist legal critics need to be able to explain how some rape cases succeed in securing convictions. The means by which rape cases are routinely disqualified in the criminal justice system have received widespread attention. It is well established in feminist legal critique that female complainants are discredited if they fail to conform to an archaic stereotype of the genuine or ‘real’ rape victim. This victim is not only morally and sexually virtuous she is also cautious, unprovocative, and consistent. Defence tactics for discrediting rape testimony involve exposing the complainant's alleged failure to comply with the sexual and behavioural standards of the normative victim. This understanding of how rape complain(an)ts are disqualified is not predictive, however, of the complainants whose cases succeed in securing convictions. This article reviews some successful Australian rape cases and considers the ways in which they disturb feminist understandings of how rape complaints are discredited in the criminal justice system. It proposes that recent research analysing the discourse of rape trials provides a way of explaining the apparent discrepancies between the ‘ideal’ rape victim and successful complainants. This revised version was published online in July 2006 with corrections to the Cover Date.     

‘She Knew What was Expected of Her’: The White Legal System’s Encounter with Traditional Marriage

A recent case in the Northern Territory of Australia has raised the issues of intra-racial rape and the legal recognition of traditional marriages between Indigenous people. The defendant in the Jamilmira case was charged with statutory rape of a 15-year-old girl. He argued that the girl’s status as his promised wife should lead to mitigation of his sentence. Members of the Northern Territory judiciary and others in the community were divided in their response to his claim. Ultimately the case led to reform of the law in relation to the recognition of traditional marriage, a response which outraged some members of the Indigenous community. In this article I examine the various representations of culture and individuals that were utilised by ‘the law’ and how these representations informed the legal response. In the process I question the limits of my own role as a ‘white middle-class feminist’ in the context of explorations of law and culture. Is there a space to become involved in these debates without being complicit in fostering racism and prejudice and without reverting to stereotypes and cultural arrogance?     

Domestic Violence and the Gendered Law of Self-Defence in France: The Case of Jacqueline Sauvage

Legal responses to battered women who kill have long animated scholarly debate and law reform activity. In September 2012 after 47 years of alleged abuse, Frenchwoman Jacqueline Sauvage fatally shot her abusive husband three times in the back. The subsequent contested trial, conviction for murder, unsuccessful appeal and later presidential pardon of Sauvage thrust the French law of self-defence into the spotlight. The Sauvage case raises important questions surrounding the adequacy of the French criminal law in this area, the ongoing proliferation of gendered stereotypes in law and the need for reform. In the wake of the Sauvage case, this article provides a timely analysis of the gendered law of self-defence in France. Drawing from an in-depth analysis of the judgments imposed in the Sauvage case, this article examines the adequacy of French legal responses to battered women who kill and ignites an argument for further law reform.     

Unequivocal Victims: The Historical Roots of the Mystification of the Female Complainant in Rape Cases

Historically, numbers of women complainants in rape trials have been regarded suspiciously, or prejudiced in that their credibility has been seriously called into question, or undermined, both from within and outside the courtroom. Arguably, public and legal perceptions as to the expected conduct and behaviour of the stereotypical rape victim have been grounded in the belief that genuine women who allege rape should act and portray themselves as unequivocal victims. This suggests that the contemporary construct of the female rape victim and her associated stereotypical image should be considered not solely as a legal derivative but also within a wider cultural context. This article explores the historical influences that shaped the cultural construct operating in the U.K., in particular, the societal and legal attitudes of the mid-Victorians towards women and sexual violence, creating an historical mystification around the construct of the female rape victim and the crime of rape itself. Reference is made to a number of cases reported in The Times newspaper between 1850–1885 which underline the requisite portrayal of the rape complainant as an unequivocal victim. It is argued that the relocation of this historical and socially constructed mythological imaginary within the context of the law and the trial process has disproportionately contributed to the modern scepticism which surrounds the female complainant. This revised version was published online in July 2006 with corrections to the Cover Date.     

Battered Women’s Experiences of the Criminal Justice System: Decentring the Law

This article takes up Smart??s suggestion to examine the way the law works in practice. It explores the context of current criminal prosecutions of domestic violence offences in Queensland, Australia. This article argues that legal method is applied outside the higher courts or ??judge-oriented?? practice and that the obstacles inherent to legal method can be identified in the practices of police, lower court staff, magistrates and lawyers. This article suggests that it may be difficult to deconstruct legal method, even by focussing on law in practice, and as a result it may be difficult to successfully challenge law??s truth claims in this way. The analysis of criminal prosecutions of domestic violence offences reported here supports Smart??s earlier findings that women and children who seek redress through the criminal justice process find the process at best ambivalent and at worst, destructive. However, the article also shows how, in the Queensland context, women sometimes find their way to feminism and personal empowerment by going to law.     

Vulnerability in Domestic Discourses on Trafficking: Lessons from the Indian Experience

In recent years, rather than addressing the needs of sex workers themselves or of trafficked persons, international anti-trafficking law has been mobilised towards an ideological end, namely the abolition of sex work. The vulnerability of ??third world?? female sex workers in particular has provided a potent image for justifying state intervention backed by the full force of the criminal law. Moral legitimacy has been afforded to this by a radical feminist discourse which views sex workers as nothing but hapless victims. Drawing on the work of Martha Fineman and legal realists like Robert Hale, this article redeploys vulnerability in trafficking debates to depart from its narrative of victimhood and to offer a renewed critique of liberal legalism, which has in the trafficking context been characterised by legal strategies of criminalisation and the attendant rescue and rehabilitation of trafficked persons. Specifically, it examines how three Indian social legislations regulating bonded labour, contract labour and inter-state migrant labour, and targeted at the domestic trafficking of men, conceptualise vulnerability in substantially different ways when compared to the 2000 Palermo Protocol on Trafficking (at least as it has been enforced to date). To the extent that these Indian laws construe the vulnerability of labour as systemic, trafficking is understood as a problem of labour migration to be addressed primarily by labour law. As such, this view of vulnerability, I argue, not only helps to de-exceptionalise trafficking as always equivalent to the trafficking of women for sex work, and therefore sex work, but also to substantively address the vulnerability of both male and female workers in other labour markets.     

The Human Fertilisation and Embryology Act 2008: Tinkering at the Margins

This note suggests that, viewed from a feminist perspective, the reforms contained in the Human Fertilisation and Embryology Act 2008 represent a missed opportunity to re-think the appropriate model of regulation to govern fertility treatment and embryology research in the UK. It argues that reform of the legislation was driven largely by the government’s desire to avoid re-igniting controversies over the legal status of the embryo and abortion and to maintain Britain’s position at the forefront of embryo research and related biotechnologies. It also highlights the importance of media debates, which were highly selective, to the reform process, and suggests that in order to inject feminist values into the process of legislative reform, feminists need to become more media savvy. In the short term, it suggests that there is little prospect of a radical re-thinking of the appropriate ethico-legal response to the wide variety of family forms that reproductive technologies potentially enable, much less of considering our ethical obligations to the new forms of embryos that are now permitted by the 2008 Act. In the meantime, however, it argues that these issues provide productive opportunities for feminist legal theorists to address questions that have been erased or obscured in the course of the 2008 reforms.     

重大责任事故罪刑罚配置完善研究

在我国刑法典中,重大责任事故罪刑罚配置存有重大的缺陷,即法定刑配置之刑种种类不足,仅配置了自由刑一种.同时,在自由刑中,有期徒刑本身之刑度轻重排列梯度设计不严谨即有期徒刑刑期分等问题以及拘役刑刑事替代措施的选择问题也未得到解决,正是由于缺陷的存在造就了刑法本体在对罪刑均衡价值目标之追求时面临不可逾越的现实障碍.为此,刑法有必要对该罪之刑罚配置进行完善,对应予以配置的法定刑之刑种种类加以补足以及有期徒刑本身之刑度轻重排列进行严谨的设计以及解决拘役刑刑事替代措施的选择,使得刑法实现对已犯者已犯之罪的有力惩治和对未犯者初犯之尝试的有效防范.     

United or divided? Women ‘inside’ and women ‘outside’ against male lawmakers in Australia

Is it possible, under patriarchy, for women's liberationists and feminists to instigate and control the direction of law reforms, particularly in areas of law directly affecting women's daily lives—such as rape laws?This article covers one instance, in New South Wales, Australia, where women agitated for law reform and played a large part, at least for a time, in formulating a new law on rape. At the end, however, women's liberation women and feminists lost control because women in the bureaucracy sided with men in the bureaucracy, despite their stance of ‘sisterhood’.Will women ‘outside’ inevitably be sold out by women ‘inside’ the bureaucracy? Once inside, does an allegiance to the establishment (the patriarchy) develop which ousts allegiance to women's liberationism? Or is it true that women inside the system ultimately recognise the system is not ‘of them’, or ‘for them’, and therefore when the barricades are up, will align themselves with women outside, rather than with the true insiders, men?     

the science of rape: (mis)constructions of women's trauma in evolutionary theory

The social sciences are witnessing renewed enthusiasm for sociobiological accounts of human behaviour. Feminist theory has, understandably, tended to engage cautiously with biological reasoning, because women have often been poorly served by the politics of such research. It is important, though, that feminists continue to contribute to this literature, in order to challenge problematic discourses that may emerge. The present paper seeks to analyse a domain of sociobiology that has been the focus of recent controversy: an evolutionary explanation of rape. Particular attention is given to the way in which women's traumatic experience of rape is constructed within this framework. It is argued that women's psychological pain is contorted, via the strategies of (a) diminishing women's pain and (b) ignoring their experience altogether. The operation of these two strategies is illuminated, and their practical consequences in the domains of legal reform and the depoliticization of science are evaluated.     

The question of marital rape

The legal definition of rape most commonly used in the United States — ‘sexual intercourse by a male with a female not his wife without her consent’ — gives legal permission for men to rape their wives. This article integrates the legal and psychosocial aspects of marital rape and the marital rape exemption. That rape is an act of aggresion against women is established, and the effects of intimate rape are explored. A brief legal history of the marital rape exemption is included, followed by a look at the arguments both for maintaining and for abolishing this rape exemption. The societal influences that make rape and abuse seem ‘okay’ are discussed, and steps that have been taken towards change in the United States are outlined. Suggestions for further change in the rape laws and penalties are offered in the conclusion.     

Rape Myths and Gender Stereotypes in Croatian Rape Laws and Judicial Practice

In this paper I examine the presence of rape myths and gender stereotypes, and the norms of sexuality they reflect and reinforce, in Croatian rape laws, as exemplified by the recent practice of the Zagreb County Court. I begin with a general discussion of the gendered myths and stereotypes that have shaped the content and application of the criminal law of rape everywhere. I then briefly introduce the definition of rape under the 1997 Croatian Criminal Code which was in force at the time of my research, after which I proceed to the critical analysis and the assessment of the Zagreb County Court practice. Next, I turn to the changes in the new Criminal Code to see how they address the identified problems. I offer a model of an affirmative consent standard, based on a communicative model of sexuality, which values reciprocal responsibility, communication and mutuality of sexual desire. I argue that this standard has greater potential to challenge rape myths and gender stereotypes and to promote sexual freedom and gender equality.     

推动工会工作高质量发展的重要法治保障——《工会法》修改解读

《工会法》是我国法律体系中一部重要的法律,2021年《工会法》进行了第三次修改。《工会法》的修改是一项重要的政治任务,此次修法坚持“小修”的思路,体现了依法修法、民主修法的原则。《工会法》修改的主要内容包括：进一步明确了中国工会的政治属性,突出坚持党的领导;落实党对工会改革的新要求,为扩大基层工会覆盖面提供法律依据,明确新就业形态劳动者参加和组织工会的权利;将习近平新时代中国特色社会主义思想确立为工会工作的指导思想;完善工会基本职责;增加工会推动产业工人队伍建设改革的条款;等等。修改后的《工会法》为新时代工运事业和工会工作的创新发展提供了根本遵循,为坚定不移地走中国特色社会主义工会发展道路提供了法治保障。     

Helene Stöcker and the Bund fuer Mutterschutz (The Society for the Protection of Motherhood)

The Society for the Protection of Motherhood (BfM) was the first organization in Germany to concern itself with a reform of sexual ethics and the transformation of the relationship between women and men—not only on a theoretical level but by actually providing support for single mothers and their children and initiating counselling centres to deal with sexual problems. At the same time, the BfM demanded legal equality for illegitimate children, the decriminalization of abortion and the right of women to sue for divorce. In raising these issues, the BfM trod on difficult ground since they were not ‘popular’ topics of discussion within German society around the turn-of-the-century. The chairwoman of the BfM, Helene Stöcker, who was among the first women to study and obtain a doctorate in Germany, put the Society's ideas into practice in her relationship of ‘free love and marriage’ with her partner, the lawyer Bruno Springer. Indeed, it was the policy of the BfM to encourage progressive men to join the organization and work in partnership with the women, while most of the other groups on the radical wing of the bourgeois women's movement chose to work autonomously from men. Over the years, the BfM's priorities changed and its members moved in different directions: while the ‘moderates’ wanted to retain the family as the nucleus of the state, the more radical members went in search of new forms of relationship, attempting thereby to expose society's double standard of morality.     

Rape as ‘Torture’? Catharine MacKinnon and Questions of Feminist Strategy

How can we eradicate violence against women? How, at least, can we reduce its prevalence? One possibility offered by Catharine MacKinnon is to harness international human rights norms, especially prohibitions on torture, and apply them to sexual violence with greater rigour and commitment than has hitherto been the case. This article focuses particularly on the argument that all rapes constitute torture in which states are actively complicit. It questions whether a feminist strategy to reconceptualise rape as torture should be pursued, suggesting that we retain the label ‘rape’ due to its gendered meaning and powerful associations. It is also claimed that we may lose sight of the commonality of rape in calling it torture, as well as obscuring the varied responses of women survivors. Finally, the article canvasses the idea that we recognise the different circumstances and contexts in which rape takes place, which may mean different criminal offences for different rapes; for example, preserving the label ‘torture’ for those rapes in which state officials are participants.     

“Disrupting the surface of order and innocence”: Towards a theory of sexuality and the law

Conclusion The dominant male discourse as expressed in the law of sexuality constructs the male subject. In each area — rape, incest and prostitution, it creates and extends the power which underpins the sexuality of the male subject to facilitate the non-consensual taking of women in rape and incest and the buying of them on the subject's own terms in prostitution.Further, the law constructs the female as Other not as freely consenting subject but as Other for the male subject in the space of unreason, for the logic of desire.In these constructions, lie the paradox of the law of sexuality. It exists purportedly to defend and protect the victims of rape, incest and prostitution but even in so far as it does so, it reasserts, through its constructions, the power of the speaking male subject through and the exclusion of the woman as Other from, the dominant male discourse as it is expressed in and enshrined by that law.The author is grateful for the comments of Glynis Cousin, Mike McConville, Brendan McSweeney and an anonymous referee on this work.