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.     

Expert Evidence As Context: Historical Patterns and Contemporary Attitudes in the Prosecution of Sexual Offences

In H.M. Advocate v. Grimmond ¹ the judge in a Scottish High Court trial refused permission for expert psychological evidence to be admitted on behalf of the Crown in a prosecution involving sexual offences against two children. The Crown had sought to lead an expert witness to explain to the jury about patterns of disclosure in child sexual abuse cases. The case was remarkable, not so much for the strict application of the longstanding rule in R. v. Turner that constrains the use in the courtroom of expert evidence from the behavioural sciences, but for the way in which the arguments presented by the Crown in Grimmond resonate with enduring feminist critiques regarding the treatment of women in rape trials. The theoretical issues raised by the decision include the quest for context to counter rigid evidential frameworks, and the choice of a child sexual abuse case as the medium for challenging the boundaries of the admissibility of expert evidence in the courtroom. The ramifications of Grimmond are tangible as legislation intended to benefit children and women has already been enacted by the Scottish Parliament to ameliorate the effects of the decision. This article suggests that while this legislation should be given a cautious welcome it remains to be seen whether the heralded benefits will actually materialise. This revised version was published online in July 2006 with corrections to the Cover Date.     

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.     

‘She Said,He Said’: Credibility and sexual harassment cases in Australia

Feminist research and theory show how substance and process of law are substantially affected by its patriarchal context. Accordingly, a number of Australian studies have identified how gendered myths and other factors impact on the assessment of victim credibility in sexual assault hearings. In this article we look at sexual harassment cases in Australia lodged under the Commonwealth Sex Discrimination Act (SDA) between 2000 and 2006 and the Australian Capital Territory (ACT) Discrimination Act from 2001 to 2005 to see if similar variables to those in rape cases play a role in the perception of witness believability. We find that credibility is more likely to correlate with being Anglo, very young, a rational (masculine) demeanor/presentation in giving evidence, corroborative witnesses and legal representation. In addition, respondents' counsel in federal harassment hearings or respondents themselves in correspondence to the ACT Commissioner, just as defence barristers in rape trials, attempt to make the victim appear as an incredible witness through highlighting evidentiary inconsistencies and/or delayed reporting. Also evidence about sexual history or behavior that evokes an image of provocation may be adduced. We identify a varied response to these myths and to measurement of credibility by the individual ‘gatekeepers’ — the Federal Magistrates, judges and the ACT Discrimination Commissioner.     

Vulnerability,Agency and the Ambivalence of Place in Narratives of Rape in Three High-Profile Swedish Cases

For decades, the media have frequently been instrumental in framing rape cases by linking the deed with the place. This study demonstrates that law courts are not innocent of such social framing; on the contrary, they are significant agents. We argue that courts, by shaping the plot in rape cases, participate in an ongoing cultural production of meaning, although in a more subtle and ambivalent way than the media. In a narrative analysis of three contemporary rape cases in Sweden, we bring together feminist research on place with the concepts of vulnerability and agency. We argue that place is framed as ambivalent in relation to vulnerability and agency, and dependent on the positioning of plaintiff and defendant. In court narratives, geographical places are made relevant, including the locations where the alleged rapes took place. Court narratives of rape include highly ambivalent connotations with place in relation to vulnerability and agency, distinguished by different narratives and outcomes in the various instances. The legal and social implications of our work should include an awareness of the relevance of place in relation to rape.     

Game of Thrones,Rape Culture and Feminist Fandom

Throughout its run, HBO's adaptation of George RR Martin's A Song of Ice and Fire book series, retitled Game of Thrones (GoT), has attracted controversy for its depiction of nudity and graphic sex and violence. But a particular recent scene, in which a brother rapes his sister, caused outrage in media and fan commentary. This article considers the scene in question, and feminist responses to it, in the context of wider cultural debates about rape culture and the media representation of sexual violence. Following Sarah Projansky's argument that rape is a ‘particularly versatile narrative element’ that ‘often addresses any number of social themes and issues’, I read GoT and its online fan responses alongside literary theories of the fantastic, to examine how dominant rape culture discourses are both reproduced and challenged in fan communities. In particular I argue that fan narratives both reproduce discourses of masculinity and futurity that contribute to rape culture, but also provide a potential space for change through speaking out about silenced experiences of trauma.     

Prosecuting Mass Rape: Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic

The Yugoslav war crimes tribunal convictedthree men for their role in the mass rape ofMuslim women during the conflict inBosnia-Hercegovina. That decision is a landmarkin many respects, but primarily for itsdetermination that the rape of Muslim womenamounted to a crime against humanity. Thiscomment provides an overview of the decision,exploring the significance of recognising rapeas a crime against humanity within the contextof other developments in the area of wartimerape and sexual violence. The comment alsoprovides a brief review of the decision inlight of the author's previous scepticism aboutthe capacity for the Tribunal meaningfully toaddress violence against women. The commentconcludes that while many aspects of thedecision are promising, the war crimes trialitself may offer a limiting arena within whichto address wartime rape.     

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.     

Jurisdictions of Sexual Assault: Reforming the Texts and Testimony of Rape in Australia

The reform of rape law remains a vexed enterprise. The wager of this article is that the plural traditions and technologies of criminal law can provide the resources for a radical rethinking of rape law. Parts 1 and 2 return to the historical and structural forms of rape law reform in Australia. These forms of reform illustrate a variety of criminal jurisdictions, and a transformation in the way in which rape law reform is conducted now. Against this transformation, Part 3 takes up the technology of classification in rape law in order to generate a radical legal definition of rape—one which responds to the pain and suffering of the survivor of rape, at the same time as it holds the legal institution before the law. This has important implications, it is suggested, not only for domestic legal systems but also the jurisprudence of rape in international criminal law.     

Police officers’ perceptions of false allegations of rape

Abstract

The idea that women lie about rape is a long standing rape myth with little or no supporting evidence. Previous research has demonstrated a belief in high levels of false allegations among police officers, despite no evidence to suggest rape is falsely reported more than other crimes. This has implications for complainants’ willingness to report sexual violations, for the treatment of complainants within the justice system, and wider societal understandings about what constitutes rape. The data that informs this paper comes from an Economic and Social Research Council-funded study that focussed on rape attrition and the institutional response to rape. Forty in-depth qualitative interviews were conducted with serving police officers in a UK force who regularly deal with reported cases of rape, and explored perceptions, practices and processes around rape. The research found police officers’ estimate of false allegations varies widely from 5 to 90%. The paper will discuss how police officers make judgements about perceived veracity of complainants in rape cases. This will demonstrate that whilst significant progress has been made in how police officers and police forces respond to rape, gender stereotypes about women as deceitful, vengeful and ultimately regretful of sexual encounters, continue to pervade the thinking of some officers. It will show that police officers differentiate between ‘types’ of reports they consider to be false, and operate with a notional ‘hierarchy’ of presumed false allegations that ranges from vengeful/malicious to mistaken/confused, with a corresponding reducing level of culpability attributed to women for the supposedly false allegation. It concludes that this serves to reinforce a culture that both supports and reproduces gender inequality and its manifestation in the form of sexual violence, and that intervention, training and institutional and policy frameworks are not wholly successful in addressing sexual violence in this context.     

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.     

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.     

A world in which women move freely without fear of men: An anthropological perspective on rape

In western scholarly debate, there is nearly universal acceptance of rape as a male trait typical of all time periods and cultures. However, cross-cultural data provide insight into societies where rape is rare or unknown and can therefore be helpful to develop strategies for prevention. The paper focuses on the question why men do not rape in these societies with rape being understood as a crime that reflects male dominance and entitlement.An earlier finding by Sanday [J. Soc. Issues 37 (1981) 5] that such “rape-free” societies attach importance to the “contributions women make to social continuity” is further analyzed by taking an in-depth look at matrilineal societies. The category “matrilineal” is chosen because these cultures recognize women's contributions to social continuity, and absence or rareness of rape has been repeatedly reported. Data from matrilineal cultures from the relevant literature including my own work in South America are compared with a select body of data discussing western rapists. As the discussion demonstrates, the specific gender dynamics in matrilineal cultures reduce the significance of man's sexual persona and thus male heterosexual authority which mitigates the potential of male dominance and rape.     

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.     

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.     

Women in Fascist Biopolitics: The Case of Olive Hawks

The historical chapters of Susan Brownmiller's Against Our Will: Men, Women and Rape deserve close attention. Her view of rape as a crime of violence and aggression has received some corroboration from recent historical .studies. Her view of rape as a property crime in ancient societies can not only be seen in the laws of the Hebrews and Babylonians, which she considers, but in other early legal codes as well. Rape was defined in them not as an offense against the victim, but as a crime against the male under whose authority she lived. Brownmiller perceives a breakthrough in this dismal history of rape laws occurring in thirteenth‐century England with the Statute of Westminster (1285). This interpretation does not hold up under close examination. It can be shown that the first real advance in rape laws took place in the work of church lawyers of the twelfth century who began to distinguish rape from property crimes and include it among crimes of violence against persons. If historians will set aside the angry, polemical statements in Against Our Will, they will find many intriguing ideas which require further investigation and thought.     

Feminism,masculinity and male rape: bringing male rape ‘out of the closet’

Feminist research has played a pivotal role in uncovering the extent and nature of male violence against women and suggests that the main motivations for rape are the need for power, control and domination. This paper argues that, although feminist explanations of rape are robust and comprehensive, male victims of rape have largely been excluded from this field of research. While feminism has enabled the victimisation of women to be recognised, further understanding of the victimisation of men is required. Some feminist writers (such as hooks, 2000) have argued that men's emancipation is an essential part of feminism since men are equally harmed by gender role expectations and sexism. This paper makes a contribution to current knowledge through evaluating the social constructions, stigma and phenomenological realities associated with male rape (by both men and women), arguing that there has been neglect in this area that functions to support, maintain and reinforce patriarchal power relations and hegemonic masculinities.     

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.     

Rethinking ‘Rape as a Weapon of War’

One of the most significant shifts in current thinking on war and gender is the recognition that rape in wartime is not a simple by-product of war, but often a planned and targeted policy. For many feminists ‘rape as a weapon of war’ provides a way to articulate the systematic, pervasive, and orchestrated nature of wartime sexual violence that marks it as integral rather than incidental to war. This recognition of rape as a weapon of war has taken on legal significance at the Rwandan and Yugoslav Tribunals where rape has been prosecuted as a crime against humanity and genocide. In this paper, I examine how the Rwanda Tribunal’s record of judgments conceives of rape enacted as an instrument of the genocide. I consider in particular how the Tribunal’s conception of ‘rape as a weapon of war’ shapes what can be known about sexual violence and gender in the Rwandan genocide and what cannot, the categories of victims legally recognised and those that are not, and the questions pursued, and those foreclosed, about the patterns of violence before and during the genocide.