Handbook on Sexual Violence (19 page)

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et al
. (2005) ‘For a Women’s Liberation Movement’, in Namascar Shaktini (ed.).
On Monique Wittig
. Chicago: University of Illinois Press, pp. 22–34.

Wordsworth, William (1988)
Lyrical Ballads
, R.L. Brett and A.R. Jones (eds). London: Routledge.

Zerilli, Linda M.G. (2005) ‘A new grammar of difference: Monique Wittig’s poetic revolution’, in
On Monique Wittig
, Namascar Shaktini (ed.). Chicago: University of Illinois Press, pp. 87–114.

Chapter 3
‌

The legal heritage of the crime of rape

Joan McGregor

Meet Joan McGregor

Joan McGregor is a professor of philosophy and adjunct professor of law at Arizona State University in Tempe, Arizona. Her interest in rape grew out of her earlier work on coercion and exploitation where she argued that given the unequal bargaining positions of individuals, those with more bargaining power (power can come in various forms) can use that power to exploit or coerce the vulnerability of the weaker party. That framework for coercion was not premised on the notion of explicit threats of violence. Most rapes, particularly acquaintance rapes, don’t involve explicit threats of violence. In acquaintance rape cases, the nonconsensual sexual interactions are a result of the unequal bargaining positions of men and women. The power that is used is not necessarily physical power but may be economic, social, political, or even exploiting the coercive environment where many women find themselves. McGregor subsequently wrote a book entitled,
Is it Rape?: On Acquaintance Rape and Taking Women’s Consent Seriously
, morally criticising the criminal laws of rape, arguing that the criminal justice system is supposed to protect individuals from harm from others but that it is not adequately protecting women’s sexual autonomy from harm.

Introduction

Current rape laws around the world continue in failing to protect women’s interests in their sexual autonomy. For instance, last year Afghanistan’s government tried to enact legislation that would permit men to force their wives into sex (Abawl 2009). Other countries still exclude rape charges, including India, Malaysia, Tonga, Ethiopia, Lebanon, and Guatemala and Uruguay if the perpetrator marries the victim (Neuwirth 2004). Mali, Sudan and Yemen have laws mandating ‘wife obedience’ in marital relations (Neuwirth 2004). A Saudi judge recently sentenced the
victim
of a gang rape to

90 lashes (CNN.com 2007). Lest the problem is viewed only as one in non- Western nations, notice the recent findings that judges in England are ‘getting around’ the new sexual assault law that was supposed to shield the sexual history of victims during trials for rape (Dyer 2008). Shield rules were designed to prevent defence lawyers from routinely cross-examining victims about their sexual history as a method of undermining the victim’s credibility and playing into myths about women and sexuality (Kelly
et al
. 2006). Compounding the problem in Britain is the treatment by police of rape. The following story is indicative: ‘After Linda Davies reported to police that her 15-year-old daughter had been raped, it took three months – plus two dozen phone calls and a threat of legal action – before police questioned the suspect, a 28-year-old neighbour’ (Jordan 2008). In that case, the defendant was later acquitted after the police lost the cellphone records that would have contradicted the defendant’s account and the judge told the jury to disregard the victim’s age and that the defendant was ‘in a way a man of good character’ because his earlier criminal convictions did not involve violence. The result was another acquittal for rape in Britain, not unusual given the fact that based on the government’s statistics of officially recorded rapes, only 5.7 per cent of rapes end in conviction (Stern Report 2010). In a study conducted by Kelly and colleagues (2005) about rape investigations in London’s Metropolitan Police, in about one third of the reported rapes, the accused offenders had histories of other accusations of rape, targeting young women who were intoxicated or high on drugs, many of whom suffered from mental illness, and yet many of those same cases were labelled ‘not-crimed’, i.e., not treated as crimes by the police (Kelly
et al
. 2005). And finally it is suspected that the rapes that are reported to police in Britain represent only 10 per cent of the rapes that occur annually. Dismal statistics tell a tale of a system that even with thoroughgoing and progressive revisions to its criminal sexual assault laws is failing to protect women from serious harms.

Criminal laws are supposed to protect people from harms perpetrated by others. Why are the criminal laws that address sexual violence around the world not protecting women from the harms to their sexual autonomy and physical integrity? Before answering that question, it is important to remember that the area of sexual violence recognised by criminal laws is only a small subset of the much wider range of sexual violence. Sexual violence falls on a continuum and the range of sexual violence that is recognised and ostensibly protected by the criminal law is narrow. In Liz Kelly’s
Surviving Sexual Violence
(Kelly 1988), she defines sexual violence as ‘any physical, visual, verbal or sexual act that is experienced by the woman or girl at the time or later as a threat or assault that has the effect of hurting her or degrading her and/or takes away her ability to control intimate contact’. Some of the different behaviours she identifies include abuse, intimidation, coercion, intrusion, threat and force. Her definition picks out a more expansive range of behaviour than is identified by any country’s criminal code. Once we acknowledge Kelly’s more expansive range of sexual violence, the fact that the criminal laws are doing a dismal job at protecting women from the narrower subset of instances is even more disturbing.

This
chapter will consider just the area of sexual violence that the criminal

law addresses. The chapter will give a brief history of the theoretical underpinning of rape law, particularly focusing on laws of the twentieth century and the Anglo-American system, and then examine the reforms that were supposed to solve certain problems and consider how and why many of the reforms failed.

The legal heritage of the crime of rape

How did the system of criminal laws addressing sexual violence get to its current state? The history of rape in the Anglo-American legal system illustrates treatment of women that is shocking and indefensible in its blatant unfairness and this is still true with an increasingly progressive legislation. An increasing chorus of theorists has been raising objections and advocating changes in rape law since the 1970s and 1980s. Some changes have come, but even with the revisions in the 1970s and 1980s, extensive ones in Canada in 1992 (Criminal Code of Sexual Assault) and in Britain again in 2003 (Sexual Offences Act 2003), the statutes and the criminal justice system continue to reflect a legacy of patriarchy and a disappointing lack of respect for women’s sexual autonomy and physical integrity (McGregor 2005). The assumptions and standards of rape law and the procedures to enforce them have been biased against women since the beginning. This begs the question of the law’s objectivity and fairness. The Anglo-American criminal justice system has a morally significant procedural safeguard of the presumption of innocence of the defendant until proven guilty which, of course, needs to be preserved. Here it is argued that statutes, procedures and assumptions in rape prosecutions go far beyond the interests of this procedural protection.

There are numerous dimensions to the problems with the prosecution of rape:

First, there is the fact that rape laws and the enforcement of them protect men’s interests in sexual access to women and against prosecution.

Second, the statutes and the criminal justice system, the police, prosecutors and judges employ assumptions and standards about rape, consent, force, reasonable belief, resistance, ‘proper behaviour for women’ that fail to account for the perspective and interests of women.

Third, attitudes of the public (who make up juries) about proper and improper behaviour for women and, consequently, who can be a ‘victim’ of sexual violence – what one theorist called ‘good victimhood’ – reinforce and entrench sexist attitudes about women and sexuality.

Feminist legal theorists have criticised standard doctrines in rape law, pointing out that ‘utmost resistance’, i.e. the requirement of strong physical resistance, the corroboration requirement, marital exception, and routine introduction at trial of past sexual histories in rape cases, do not advance the legitimate ends of criminal law and are blatantly unfair to women. The legal rules and the implementation of them are either not designed to protect women’s interest in

the physical integrity and security, or the rules are implemented in a fashion that does not secure women’s autonomy. Feminist theorists and others have also been critical of the procedures and attitudes of police, prosecutors, judges and the public who have perpetuated the injustices of rape enforcement against the interests of women. For instance, police and prosecutors who persist in believing that many rape allegations are false and don’t believe women’s account of their victimisation because they were drinking and knew their attackers, judges who are dismissive of women’s stories of sexual abuse due to their previous consensual sexual history, and the public’s attitude that victims are responsible for their own victimisation when they drink or engage in other ‘risky’ behaviours are all contributing to the injustices against women (see for example http://www.equalities.gov.uk/pdf/ConnectionsFinal_acc.pdf).

The 2009 British case involving John Worboys is a recent example of women’s complaints of rape not initially being taken seriously or being believed. Worboys was arrested but held only briefly, allowing him to go on to rape a number of other women until he was finally arrested again and convicted on a number of other rape charges. The police incredulity was based on among other reasons, the fact that the female victims had been drinking prior to the assault, there was no ‘physical injury’ to the victims, and the assaults involved the ‘trusted black cab’ company in London. Even after all the reforms and attention to the issues of sexual violence in Britain, including the 2003 reforms, the problems of addressing rape in the criminal justice system continue (IPCC 2010).

The twentieth-century definition of rape in Anglo-American systems can be directly traced to the eighteenth-century definition of rape in William Blackstone’s 1765
Commentaries on the Laws of England
. Blackstone’s definition of rape was ‘carnal knowledge [by a man not her husband] of a woman forcibly and against her will’. That definition of rape statutorily exempted husbands and it required a finding of force
and
absence of consent. A wife could not be raped by her husband, even if she were estranged from him and there was extreme force. In 1736 Lord Matthew Hale said of the exclusion of husbands: ‘the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract’ (Hale 1736). ‘Carnal knowledge’ meant penetration of a vagina by a penis; other sexual violations were excluded. Amazingly, the eighteenth-century definition would not be changed in the United States, England and Wales, and Canada until the late 1970s and early 1980s when the American Law Institute attempted reform of the entire criminal code. In 1976 England and Wales began rape reform by passing the Sexual Offences (Amendment) Act and Canada’s Federal Government made substantive rape reforms in the early 1980s. Acknowledging that husbands can rape their wives would not be statutorily changed in most Anglo-American systems until the 1990s.

The requirement of resistance

Rape historically was viewed as a threat to male interests since it: ‘devalued

wives and daughters and jeopardized patrilineal systems of inheritance’ (Rhode 1989: 245). Rape laws were designed to protect men’s interest in their women, which included their daughters and their wives. On the other hand, policy-makers perceived ‘too stringent constraints on male sexuality . . . equally threatening . . . ’ (Rhode 1989: 245). The ‘utmost resistance’ requirement is a prime example of protecting male interests in their own women and in male interest in sexual access. The requirement was used to determine whether the sexual interaction was ‘against her will’ and reflected the belief that a woman should protect her chastity with her life. Women’s chastity was worth a lot to men interested in marrying off their daughters and ensuring that children conceived during their marriage were biologically their progeny. Without chastity, women lost their value and were often ostracised by family and community. The assumption of these laws was that women too held chastity to be of the highest value and would protect theirs with their own life. Given this assumption, failure to protect one’s chastity with ‘utmost resistance’ was seen as giving consent to the sexual interaction. Rather than protecting women’s sexual autonomy or even their physical well-being, these rules were designed to protect the interests of men. Even in contexts where resistance would have been extremely dangerous, women were held to this standard. Moreover, victims were often humiliated when their resistance or lack of it resulted in judgment that they must have really desired the sexual interaction and ‘consented’ to it. For example, in an American case,
Brown
v.
State
(1906), the perpetrator tripped his 16-year-old victim to the ground and physically forced himself on her. The Supreme Court of Wisconsin found that
the victim had not adequately demonstrated
her non-consent, even though she tried screaming and he was physically restraining her. ‘Not only must there be entire absence of mental consent or assent, but there must be the most vehement exercise of every physical means or faculty within the woman’s power to resist the penetration of her person, and this must be shown to persist until the offence is consummated.’

‘Utmost resistance’, on the other hand, protected men’s interest in sexual access, thus making it difficult to obtain a criminal charge and conviction for rape. The result was that to prove ‘forcibly’ and ‘against her will’, courts (and some statutes) required victim resistance as ‘utmost resistance’. This meant that unless the victim used ‘utmost’ physical resistance, a physical fight to near death, the sexual interaction was not against her will. Utmost resistance was claimed to be the natural response of a woman of virtue, therefore not an imposition on any woman. In another American case in the 1800s,
People
v.
Dohring
(1874), where the appeals court reversed the conviction of a man found guilty of raping a servant in his house, the court said:

Can the mind conceive of a woman, in the possession of her faculties and powers, revoltingly unwilling that this deed should be done upon her, who would not resist so hard and so long as she was able? And if a woman, aware that it will be done unless she does resist, does not resist to the extent of her abilities on the occasion, must it not be that she is not entirely reluctant?

Women’s resistance was judged, put ‘on trial’, even with evidence of extreme force or weapons. There have been instances where the victim was beaten to the edge of death and it was determined that she was not raped because she didn’t resist with enough vehemence. A Texas court said in
Perez
v.
State
(1906) that ‘although some force be used, yet if she does not put forth all power of resistance which she was capable of exerting under the circumstances, it will not be rape.’ This requirement reflected the view that it was better for a woman to die than be ‘dishonoured’. And the assumption was that if a woman did not put up such a fight she probably was consenting and just wouldn’t admit to it.

In another case from the 1880s,
Whittaker
v.
State
(1880), where even though the assailant had the woman’s hands and feet so tight that she couldn’t move, and when she screamed for help, Whittaker threatened her with his revolver, the Supreme Court of Wisconsin reversed his conviction, saying, ‘this is not a case where the prosecutrix was overcome by threats of person violence.’ Then the court continued that Whittaker’s threat to use his gun was merely ‘conditional upon her attempting again to cry out . . . The testimony does not show that the threat of personal violence overpowered her will, or . . . that she was incapable of voluntary action.’

These historical court decisions illustrate that consent was understood as equivalent to submission, and submission no matter how reluctantly given. With the element of consent present, an essential element of the crime of rape is missing. The ‘utmost resistance’ requirement, as Stephen Schulhofer argued, ‘became impossibly difficult to satisfy and dangerous to any victim who tried’ (Schulhofer 1998: 19). These were malicious standards and got support from medical writers who insisted that women have the physical means to stop rape if they so desire, by using hands, limbs and pelvic muscles. They claimed that any woman who wasn’t willing to have sex could stop any man regardless of size from penetrating her. The implication was that successful penetration meant that the woman was a willing sexual partner (
Brown
v.
State
(1909)).

Suspicion of female victims

Add to the utmost resistance requirement, the criminal justice system and societies’ belief that women make up rape complaints. There has been and continues to be an entrenched suspicion and distrust towards female victims (Kelly
et al
. 2005). The persistence of the belief that women ‘cry rape’ is illustrated by the lengthy discussion in the recent Stern Report of how rape is investigated and prosecuted in England and Wales. The report recommended, because of the prevalence of the belief that many charges of rape are false charges, that the Ministry of Justice carry out research on the frequency of false allegations of rape (Stern Report 2010). The assumption was that unless the victim could prove that she physically resisted, what reason would the investigation and prosecuting authorities have to suppose that she is not lying about the rape? Two other requirements, which reinforced the belief in the unreliability of female victims, were the requirements for
corroboration
of the

woman’s testimony and the requirement that the
complaint is promptly filed
. Currently, elaborating on the suspicion of female victims, countries like Pakistan and Sudan have required four male (not female) witnesses to corroborate a claim of rape. If the victim’s complaint was not quickly made, it was assumed that she was having second thoughts about her consensual sexual activity.

Distrust of female victims has found its way into jury instructions too. The practice was to instruct the jury that it was unsafe to convict for rape on the uncorroborated evidence of the alleged victim. No other crime requires the victim to have corroboration. The legacy of this suspicion is epitomised by the warning given three centuries ago by the English Lord Chief Justice Matthew Hale, who said that rape is a charge ‘easily to be made and hard to be proved, and harder to be defended by the party accused, tho’ never so innocent’ (Hale 1736: 635). This quote was for many years, and up until very recently, recited to juries before their deliberations. Glanville Williams, a leading twentieth century jurist, supporting the distrust of female victims of rape, said, ‘There is a sound reason for it [the instruction to the jury], because these cases are particularly subject to the danger of deliberately false charges, resulting from sexual neurosis, phantasy, jealousy, spite or simply a girl’s refusal to admit that she consented to an act of which she is now ashamed’ (Williams 1962: 159). Williams worries that those psychological approaches – namely, having a physician question the complainant, to determine whether she is having fantasies, is neurotic, and so forth – may not be able to pick out all falsehoods and suggests that all female complainants take polygraph tests. Furthermore, it was the opinion of John Wigmore, author of the United States’s most influential treatise on evidence, that ‘No judge should ever let a sex-offence charge go to the jury unless the female complainant’s social history and mental make-up have been examined and testified to by a qualified physician’ (Wigmore 1970: vol. 3A, sec. 924a).

The nexus between rape as a dishonour, expectations of a woman’s behaviour when confronting a rape attempt, and distrust of female victims still presents itself in modern rape prosecutions. In 1998, the Italian Supreme Court overturned a rape conviction in part on the grounds that the victim was wearing jeans. The court’s opinion stated that since it is difficult to remove jeans worn by another, the victim must have assisted the defendant with the removal of her jeans, and hence she could not have been raped by the defendant (Van Cleave 2005). The court’s argument reflected the idea that any woman of virtue would have fought hard to protect herself from sexual assault.

The consent standard

The consent standard in rape law was like no other standard for consent in law. Consent in rape was inferred from submission, no matter how long it took or whatever it took to get that submission. Even when threatened or assaulted, if the victim submitted, consent has often been inferred. The consent standard in rape is unique since it requires victims of rape, unlike

victims of any other crime, to demonstrate their ‘wishes’, that is, demonstrate their
non-consent
through physical resistance. Moreover, in some cases, even resistance has not been sufficient to establish non-consent since, as was expressed in Glanville Williams’s classic textbook on criminal law, women often welcome a ‘masterly advance’ and ‘present a token of resistance’. An article published in the
Stanford Law Review
in the 1960s argues that although a woman may desire sexual intercourse, it is customary for her to say ‘no, no, no’ while meaning ‘yes, yes, yes’. In a
Yale Law Journal
article it further suggested that women do not know what they want, or mean what they say, and often require
force
to have a ‘pleasurable’ experience (Note 1952). Rather than requiring an explicit sign of consent and worrying about the circumstances in which the alleged consent was given (for example, were the circumstances threatening? Was the victim intimidated? Were implicit threats made?), the courts have interpreted silence and non-resistance as signs of consent. This approach to consent effectively assumes the default position that women are consenting to sex, that there is a presumption of consent which could only be defeated by the most extreme circumstances. In other areas of law, consent is not assumed but must be affirmatively sought.