Handbook on Sexual Violence (21 page)

submit if armed
DK/depends

Source
: http://www.equalities.gov.uk/pdf/ConnectionsFinal_acc.pdf

Figure 3.1 Self-reported behavioural intentions if raped

Another reform was to relabel ‘rape’ as a form of assault. The purpose of the change was to eradicate from the offence the baggage from the common law, to place it more centrally within the criminal rules of assault that focus attention on the defendant and away from the victim. Relabelling rape ‘sexual assault’ may, however, assume a position in the debate as to whether rape should be considered a crime of sexual desire or violence. Some theorists argue that rape is motivated by desire to dominate, to have power, and is a crime of violence; not, as was long assumed, by uncontrollable sexual desire. Focusing on the violent aspects of rape makes it clear that the law is not trying to prohibit all sex and that those violent men must be incapacitated as dangerous criminals, not treated as only sexually aberrant. Moreover, to see rape as violence is to recognise that sex should be inconsistent with violence. Reconceptualising rape as assault, however, has prompted some to question the seriousness of rape, particularly non-aggravated rape (Davis 1984: 984). How serious an assault is rape if the victim isn’t cut up, bruised and broken? In 1989 the Manhattan Supreme Court of Justice justified a light sentence for a rapist, even though he had an extensive criminal history, because the victim was not being ‘tortured or chopped up’ (Arce 1989). Assaults are normally graduated in terms of level of bodily injuries. Supporters of the change recognised that equating rape with assaultive conduct may obscure the unique meaning and understanding of the indignity and harm of rape. The harm of rape is different from other assaults. The meaning and significance of sexual touching is different from other kinds of touching (McGregor 2005: 219–48).

Another problem with conceptualising rape as a form of assault or an act of violence is that a man can force sex against a woman’s will without physical violence. Having power over the victim will do. The definition of force, still a major component in many statutes or in the prosecution of rape, needs to be clearly articulated and not confused with exclusively physical force. Think of coercive force that can be exerted upon your will – for example, when three bullies in an alley ask for your wallet. We should distinguish two senses of force: first, overwhelming physical force – the perpetrator lying on top of the victim so that she cannot resist, for example; and, second, coercive force, explicit or implicit threats to do harm that put pressure on the victim’s will.

Feminists who argue for rape as
sexual
assault want to reinforce its violent character
and
its sexual nature. Some argue that the so-called power rapists’ and anger rapists’ ‘choice of the vagina or anus as the object of aggression is not accidental, but essential . . . the rapist seeks to spoil, corrupt, or even destroy those aspects of a woman’s person that should be a source of pride, joy, and power for her rather than a source of shame, depression, and humiliation’ (Tong 1984: 17). On the other hand, rape as sexual assault focuses on women’s sexuality as being particularly susceptible to attack and hence in need of special protection. This view may reinforce the myth of rape ‘according to which the invasion of sexual integrity is so traumatic that the victim’s psychic wounds never heal’ (Tong 1984: 65). The sexual assault approach may unwittingly cast women back into the position of victim, a role which many feminists would like to move beyond.

Making prosecutions easier and attempting to address the interests of victims lead to various approaches. One of the ways thought to increase prosecution and convictions was to argue that penalties for rape be reduced, recognising that juries are unlikely to convict for unaggravated rape when the defendant faces a long sentence. Not all rapes are the same (the same can be said about assaults); some rapes involve aggravated assault too, and consequently some rapes are ‘worse’ than others. So-called ‘simple rapes’, often they are acquaintance rapes, don’t have other assaults along with the rape. Saying that some rapes are worse than others is not to suggest that ‘simple rapes’ or unaggravated rapes are not serious offences and worthy of some punishment. Moving beyond the adversarial criminal trial to a restorative justice model has been proposed by Mary Koss, Kathleen Daly and

J. Stubbs as a method of achieving some of the aims of victims (Koss 2006; Daly and Stubbs 2006). These scholars, who have been researching rape for decades, have recently argued for ‘expanded justice alternatives’, including a restorative justice model in conjunction with criminal prosecution. Their approach has not been met with unequivocal support. One concern of the restorative justice approach is the possible danger of losing sight of the fact that all rapes are serious crimes, involving serious harms to their victims.

In the United Kingdom there were reforms in the 1980s triggered by a television documentary in 1982 showing the police’s sexist attitudes towards women who claimed to be raped and their role in the attrition rate for the crime of rape (Lea
et al
. 2003). Even with those changes in the sexual assault law, the police still tended to pursue cases that fitted the ‘stranger violent rapist’ profile and designate as ‘no crime’ the more common acquaintance

rapes (Lea
et al
. 2003). Then, in 2003, the Sexual Offences Act attempted to modernise the consent rule and overhaul the law. With all these attempts at reforms, results are still not as good as was hoped.

Physical force, resistance and consent

Many contemporary criminal justice systems, even when the changes include explicitly getting rid of the force requirement, still search for victim resistance. The following case in the United States is representative. In
State
v.
Rusk
the victim gave the defendant a ride home from a bar where they had met through a mutual friend. The defendant invited the victim up to his apartment but she declined. After he took her car keys, she reluctantly accompanied him to his apartment. The defendant started to undress the victim, and before intercourse the victim said to the defendant, ‘If I do what you want, will you let me go without killing me?’ The victim started to cry and then the defendant, according to the victim, started lightly choking her. The appellant court argued that she had not been raped as she had not been
forced
since she had not resisted.

The standards used in
Rusk
exemplify what feminists label ‘the male orientation to the law’. ‘Prohibited force’ is defined in terms of physical force and the victim’s response to the situation. The victim’s response must be physical resistance and not merely verbal protests – or crying! If the law were interested in protecting the autonomy rights of women, then it should consider verbal protests as resistance. Beyond that, if the law were interested in protecting the autonomy rights of women, it would drop altogether the resistance requirement and see verbal protests as sufficient for non-consent and beyond that ask for affirmative assent. The ‘physical force’ and ‘physical resistance’ requirements in rape law embody what Susan Estrich called ‘a male perception of threatening situations’ and a male way of responding to a threatening situation (Estrich 1987). Physical force is seen as threatening, and one responds to the threat with physical resistance. Force translates into ‘physical force’ rather than into the various power relationships to which women might feel vulnerable. Being isolated, without transportation, with someone you hardly know, who is physically more powerful than you are, possibly someone who is in a role of authority, all could contribute to feeling threatened and thereby being ‘forced’ into sex. The law’s standard, however, of the ‘reasonable person’ is one who fights back, not cries. As Estrich says: ‘The reasonable woman, it seems, is not a schoolboy ‘‘sissy’’; she is a real man’ (Estrich 1987: 65). Also worth noticing is that the woman’s behaviour, and not the defendant’s, is the one that is subject to evaluation. The law is judging what the alleged victim did or didn’t do to make an assessment of whether she was truly a victim or not.

When the ‘physical’ resistance requirement is applied to women, the results have been disastrous because many women do not respond with physical force to a threatening situation. Women, as illustrated in Figure
3.1, don’t respond with force but often will respond by crying. One reason for the failure to use force may merely be a result of the normal differentials in strength

between men and women. Other reasons for women’s lack of physical and sometimes even lack of verbal response are probably related to social conditioning. Women are socialised not to fight or respond physically; they are also trained to be passive, especially around men, particularly men they know (Warshaw 1994: 52–4). For a rape conviction, a victim may only fail to resist, the courts have argued, when based on a
reasonable
fear that if she (the victim) resists, she will be seriously harmed. In
Rusk
, the victim’s fear was based upon being isolated, in an unknown part of town, late at night, without her car keys, with a man she didn’t know. The court claimed that her
fear was not reasonable
. ‘She may not simply say, ‘‘I was really scared’’, and thereby transform consent or mere unwillingness [sic] into submission by force. These words do not transform a seducer into a rapist.’ Again the courts have enshrined a standard of
reasonable fear
that is
not
based upon the experiences of women. To whom is the fear reasonable? For some (many?) women, being isolated with a man, who is larger and who has made some intimidating remarks or gestures, may be a frightening and unpredictable situation. Just as a man might be afraid of three big men in an alley and comply with their wishes without resistance, for many women one man may be enough.

Force is defined in terms of the victim’s resistance; if she did not resist, there was no force – therefore, no rape. And, if the reason for not resisting is fear, then the situation must be one which is objectively threatening, i.e. one which men would find threatening. Consider
State
v.
Alston
, in which Alston and the victim had a ‘consensual’ relationship over a period of months. During that relationship, Alston had behaved violently towards the victim on many occasions. A month after their relationship had ended, Alston came to the school where the victim was a student and attempted to block her path, demanded to know where she was living, and when she refused to tell him, grabbed her arm and stated that she was coming with him. At one point the defendant told the victim he was going to ‘fix her face’. The defendant told her that he had a ‘right’ to have intercourse with her again. The two went to the house of a friend of the defendant. The defendant asked her if she was ‘ready’ and the victim told him she did not want to have sexual relations. The defendant pulled her up from the chair, undressed her, pushed her legs apart, and penetrated her. She cried. The court agreed that she had not consented but since there was no ‘force’ it was not rape. The definition of force is extremely narrow and does not acknowledge the range of power relationships that don’t neatly map onto this standard definition of force.

Consider the Wyoming Supreme Court’s reversal of a conviction in
Gonzales

v.
State
. Like
Rusk
, the defendant and victim met in a bar and the defendant requested a ride home. The victim refused, but the defendant got into her car anyway. The victim repeated her refusal to drive him, but after unsuccessfully trying to get him out of her car she started to drive. He asked her to turn down a road and stop so that he could urinate. Before getting out of the car he removed her keys from the ignition. When he returned he told her he was going to rape her; she tried to talk him out of it. ‘He told her he was getting mad at her and then put his fist against her face and said, ‘‘I’m going to do it. You can have it one way or the other.’’ ’ The Wyoming Supreme Court argued that the trial court’s standard of reasonable fear was in error; it should not