Rape, rape culture, and the need to look beyond criminal justice

This post was written by Reuben on January 3, 2013
Posted Under: Uncategorized

Over at the guardian, Jill Filpovic points to the some important, if less than startling research.

What is true, researchers have found, is that cultural opposition to rape myths makes men less likely to commit assault, and acceptance of those myths makes sexual assault more likely. In social groups where there is wide acceptance of rape myths… rape proclivity is higher.

This in turn got me thinking about the way in which we fight against rape. A while back I argued that the focus upon improving the criminal justice system, and upon raising conviction rates could only take us so far. Yes it’s true that the prosecution of rape is hampered by institutionalised sexism. Yet it is naive to imagine that sexist practices are the only why conviction rates are low.

The fact is that rape, by its very nature, is a crime that is difficult to prove beyond reasonable doubt. Typically, the guilt or innocence of the accused depends crucially upon what was said, in private, prior to the physical act. When it comes to demonstrating guilt with certainty, rape is unlike most other violent crimes: it is for example far more difficult for somebody to plausibly claim that their alleged victim consented to having their legs broken than it is for a rape defendant to claim that their alleged victim consented to sex, for the simple reason that individuals very rarely consent to the former, but often consent to the latter. The point is that even if we could somehow cleanse that criminal justice system of sexism and mysoginy, many allegations would nonetheless result in situations of “he said she said” in guilt is difficult to properly prove.

Meanwhile, there comes a point at which attempts to raise the conviction rate may impact unacceptably on the rights of defendants. For example, while various activists have argued that the trauma of cross examination discourages victims from bringing cases to court, it is difficult to see how this can be addressed without prejudicing the fairly elementary rights of those accused of crimes to  challenge the allegations brought against them. The uncomfortable reality is this: the kind of justice system that we would prefer for our society  – one in which the state cannot, and at least in theory,  bundle people into cells without proving guilt – is, almost by necessity, the kind of justice system in which fair number of rapists will be able to walk free.

This is not that we should simply accept rape as an (unpunished) fact of life. But it is to suggest that the criminal justice system might, ultimately, be a fairly blunt instrument for fighting back against rape. Thankfully, as the research on rape culture demonstrates, criminal justice is not the only instrument at our disposal. Fighting back against against rape culture can make a difference to the actual occurrence of rape, a difference every bit as reap as the difference made by the successful prosecution of a serial rapist. And arguably the struggle against rape culture has more mileage in it than ongoing attempts to raise the conviction rates of an inherently difficult to prove crime. So perhaps it is time for a shift in focus.

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To contact Reuben email reuben@thethirdestate.net

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Reader Comments

Ben

Rape without physical violence is usually unprovable beyond reasonable doubt, unless admitted, witnessed, caught on CCTV, or the victim was not compos mentis at the time of the intercourse. Juries in practice ask themselves the questions: Given what we’ve heard, whom do we believe, and do we want to send this guy to jail? In this way rapists are often let off, and some innocent men are imprisoned.

Many rapes and sexual assaults are unreported. A few that are reported are false allegations. Others are cases for which public criminal trials with long jail sentence hanging over the defendant (or to some degree the accuser, if the allegations are proved to be false) are not appropriate. In particular, I have in mind cases where consensual sexual acts between the parties were followed by non-violent non-consensual ones. Yet, if cases of this kind end up in criminal courts, she will say that she never consented to any of the sex; he will say she consented to all of it. Both lie; and at least one party is humiliated for life.

Would there not be a case for a private judicial arbitration, if the victim consented to it? The party deemed to have done wrong would apologise, perhaps be required to attend a rape awareness course and/or pay compensation. Many more women would come forward; and many more men would admit and confront what they had done.

#1 
Written By Ben on January 4th, 2013 @ 10:19 am
Jack

Mostly irrelevant to your point, but it is worth noting that consent is not a defence for assault anyway:

http://en.wikipedia.org/wiki/Laskey,_Jaggard_and_Brown_v._United_Kingdom

#2 
Written By Jack on January 4th, 2013 @ 7:58 pm

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