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Part One
‌

Legacies: Setting the Scene

Introduction
‌
‌

Jennifer Brown and Sandra Walklate

Context

In this first
section of the Handbook there are five essays providing a context for thinking about sexual violence, especially in understanding the attitudes which help to shape the modern criminal justice system’s responses. The first three chapters – Shani D’Cruze on the historical heritage; Liam Bell, Amanda Finelli and Marion Wynne-Davies, who give us a critical literary analysis; and Joan McGregor’s legal legacy work – provide a temporal frame, not often used as an analytic dimension when considering sexual violence. Halford
et al
. (1997: 19) argue that ‘historically established modes [of behaviour] are vitally important in shaping current activities’. It is their position, and one we share, that present practices do not exist in a time warp, but rather are derived from past forms of agency which are stored, retrieved, reworked and reactivated in the present. By salvaging the origins of thinking about sexual violence, how this is sedimented in literature, enmeshed in culture and reflected in law, we can see the durability of past prejudice.

Notwithstanding the advances made in the investigation of sexual offences, documented in Horvath and Yexley’s Chapter
5, there is a preservation of myths about rape, and the maintenance of a belief that there is a greater harm rendered to men wrongly called rapists than to women wrongly called liars when making complaints of sexual assault or rape. But they are rather more optimistic that changes in policing practice have wrought changes in attitude and improved police and medical procedures for victims of violence which in turn encouarge more to come forward. Bell and colleagues offer a more sanguine analysis of the preservation of myth through the medium of fiction. Walby and colleagues’ Chapter
4 though reminds us of the starkness of the numbers of those suffering sexual violence and the relatively few whose aggressors are brought to book. Solutions that these authors offer come with a price and certainly imply a more radical shift in thinking in order to close what has been termed the ‘justice gap’ (Temkin and Krahe 2008), i.e. the failure of the Criminal Justice System to protect victims of sexual violence and bring its perpetrators to justice.

Sharon Stratton’s practitioner commentary in Chapter
6 provides further

details of the improving practice by police officers when investigating sexual violence. She discusses the professionalising of the police sexual violence investigator and a shift in the ethos of policy, which has become one where the victim’s fundamental right is to be believed.

The ‘deserving’ victim

Shani D’ Cruze’s chapter presents an historical overview and locates the idea that rape was a loss to a woman’s reputation in Anglo-Saxon times. She notes that the notion of more deserving victims also emerges very early, whereby the rape of a virgin heiress exacted higher penalties than that of poorer, lower status women and bondswomen (servants), who were excluded from the protection of the law altogether. Prosecuting a case of rape has always been arduous and early legal requirements included prompt and ‘rational’ action after a rape, displaying of the violated body to appropriate (male) authority figures, and the need to make repeated visits to court to demonstrate causation of the violation. D’Cruze points out that the chance of a successful prosecution was rare, partly because the law gave husbands unfettered rights of access to their wives’ bodies and partly because of issues of credibility for younger, lower status women. She argues that husbands’ entitlement to their wives’ bodies generalised to men’s sexual access to women, with women being held responsible for remaining chaste and faithful. So these ideas of prompt reporting to appropriate authorities, and having to demonstrate that the violation occurred, has resonances for modern-day beliefs and practices. This almost mirrors Susan Estrich’s ‘real rape’ scenario where she identifies differences in treatment for those who have experienced an ‘aggravated’ rape,

i.e. one in which a stranger waylays an unsuspecting and unknown woman, compared to the majority of rapes that take place between people who know each other, often in social situations (Estrich 1987). Estrich also points out that failure to report in the immediate aftermath of rape can give rise to serious doubts about the credibility of the complaint. D’Cruze historically locates Estrich’s evocation of the notion that rape resides in women’s failure to avoid the rape, put up a fight or report promptly.

There is also a modern version of the ‘deserving’ victim. In a review of rape and rape prosecutions in contemporary London, Stanko and Williams (2009) presented an analysis of rape complaints made to the Metropolitan Police Service. They found that of 697 rape allegations made (i.e. during April and May 2005) only 5 per cent resulted in a prosecution, a statistic more broadly supported for the successful prosecution rate achieved in England and Wales (Stern 2010). Thus achieving successful prosecutions still remains difficult. Secondly, Stanko and Williams developed the idea of the vulnerable victim, who, in terms of their criteria, may be thought of as especially deserving of support and protection. The factors Stanko and Williams identified were comparative youthfulness i.e. under 18 years of age at the time of the attack; having some kind of mental health issue; consumption of alcohol or a drug immediately prior to the attack; and a previous intimate relationship with the attacker. They found that the more these vulnerabilities were present, the

more likely it was that the allegation would not be formally classified as a crime and so progressed through the criminal justice system. Stanko and Williams (2009: 218) conclude that ‘most reports of rape are experienced as a ‘‘private’’ encounter, in situations that are not too dissimilar to consensual sex.’ Thus, where women find it difficult to articulate ‘non’ consent, men are given the benefit of the doubt. This benefit is conferred by jurors both in mock jury studies and in real trials (Finch and Munro 2008). Page (2008) reports the results of a study of police attitudes in the United States and found that if a prostitute reported rape 14 per cent of officers were very unlikely and 30 per cent unlikely to believe her.

Joan McGregor in Chapter
3 discusses some of the reasons why the law still fails to protect women and appears to protect men’s sexual autonomy at the expense of the former. She too argues that men [still] have privileged access to women’s bodies; that assumptions are made about the manner and nature of consent to sexual intercourse; that women still face the test of the amount and kind of resistance they put up to avoid being subjected to sexual violence, and the presumptions by men that they had a reasonable belief that the woman had consented to sex. In addition, McGregor notes the maintenance of victim- blaming attitudes by the public and the ‘when does ‘‘no’’ mean ‘‘yes’’ problem’.

Mad or bad

McGregor suggests that rape laws were designed to protect men’s interest in their daughters or wives but not so much as to constrain male sexuality. D’Cruze adds to this analysis by proposing that women’s autonomous sexual pleasure was tainted by ideas of wantonness, being a whore, or indeed witchcraft. Women who failed to preserve their chastity until marriage or their faithfulness within marriage were considered fallen. The Faustian bargain was that women relied on men for protection but it was their responsibility to reserve sexual access to their bodies to those who had entitlement. If they failed they could no longer rely on male protection. There are several consequences of this chivalric heritage. First, sexual attractiveness is seen as provoking, with the potential of unleashing uncontrolled desire in men. Thus women are seen as the causal agents in their own victimisation. Second, there was a demonisation of rapists whereby men who raped and thus fell below the chivalric ideal were brutish. Third, there was a societal expectation that women would preserve their honour to the death. D’Cruze charts a shift by the nineteenth century towards marginalising men who fall short of chivalric standards as being morally degenerate monsters, which leads to the pathologising of perpetrators. She cites the work of the Italian criminologist Cesar Lombroso who thought criminal types could be identified by their physiology. Thus rapists, he thought, have sparkling eyes, delicate features, and swollen lips and eyelids. D’Cruze sees the pathologising of violence based on these nineteenth-century ideas as society’s protection against the notion that sexual violence can and is indeed perpetrated by the ordinary, not the monstrous; a position outlined by Liz Kelly in her continuum of violence

conceptualisation, which D’Cruze comments is a powerful critique of the insidious presence of violence in contemporary society that does not necessarily work in the same way in every historical epoch.

This psychological process of inferring characteristics of the individual from

facial features has been termed ‘metaphysical generalisation’ by Paul Secord. Secord
et al
. (1960) describe how impressions can be formed of people based on relatively little information. Thus coarse skin may be associated with coarse behaviour, thin lips with meanness, eyes that are close together with deviousness. Cultural associations provide the link between the feature and the attribute. There is also a tendency for the perceiver to maximise congruency; in other words to make the impression fit the attribute even if this means some adjustment in the interests of creating a unified impression. One example of this is the so-called halo effect, whereby a positive feature of an individual is generalised and other attributes are made to fit this overall impression. The opposite is also observable when a negative feature generalises to attributions of behaviour to fit the negative impression. So, as Joan McGregor describes in the rape allegation made against William Kennedy Smith, the discussion of his accuser’s underwear cast her as a woman in search of sex, undermining the credibility of her complaint. Advice to defendants by their counsel is still likely to be ‘turn up to court looking presentable in a suit’, to give the impression that a good-looking and smart young man would have no need to force a sexual encounter.