Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape Law
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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.
KeywordsConviction rates Feminist aims Law reform Measures Rape Sexual assault
- Armstrong, Susan M. 2004. Is feminist law reform flawed? Abstentionists and sceptics. The Australian Feminist Law Journal 20: 43–63.Google Scholar
- Chunn, Dorothy E., Susan B. Boyd, and Hester Lessard. 2007. Reaction and resistance: Feminism, law and social change. Vancouver: UBC Press.Google Scholar
- Clark, Haley. 2007. Seminar review: The legal system’s response to sexual assault. ACSSA Newsletter No 14. Melbourne: Australian Institute of Family Studies.Google Scholar
- Cowan, Sharon. 2007. Choosing freely: Theoretically reframing the concept of consent. In Choice and consent: Feminist engagements with law and subjectivity, ed. Rosemary Hunter and Sharon Cowan, 91–105. Oxon: Routledge-Cavendish.Google Scholar
- Estrich, Susan. 1987. Real rape: How the legal system victimizes women who say no. Cambridge, MA: Harvard University Press.Google Scholar
- Fitzgerald, Jacqueline. 2006. The attrition of sexual offences from the New South Wales criminal justice system. Contemporary Issues in Crime and Justice 92: 1–12.Google Scholar
- Gelb, Karen. 2007. Recidivism of sex offenders: Research paper. Melbourne, Victoria: Sentencing Advisory Council.Google Scholar
- Gotell, Lise. 2007. The discursive disappearance of sexualized violence: feminist law reform, judicial resistance, and neo-liberal sexual citizenship. In Reaction and resistance: Feminism, law, and social change, ed. Dorothy Chunn, et al., 127–163. Vancouver: UBC Press.Google Scholar
- Graycar, Regina, and Jenny Morgan. 2005. Law reform: What’s in it for women? Windsor Yearbook of Access to Justice 23: 393–419.Google Scholar
- Heath, Mary. 2005. The law and sexual offences against adults in Australia. Issues Paper No. 4, Australian Centre for the Study of Sexual Assault. Melbourne: Australian Institute of Family Studies. http://www.aifs.gov.au/acssa/pubs/issue/i4.html. Accessed 31 Mar 2010.
- Heath, Mary. 2007. Lack of conviction: A proposal to make rape illegal in South Australia. The Australian Feminist Law Journal 27: 175–192.Google Scholar
- Heenan, Melanie, and Helen McKelvie. 1997. The Crimes (Rape) Act 1991: An evaluation report. Melbourne: Department of Justice, Rape Law Reform Evaluation Project.Google Scholar
- Hughan, Greg. 2006. Preparing for the complainant’s evidence in chief and cross-examination. Seminar paper presented at the Law Institute of Victoria, Crimes (Sexual Offences) Conference, 17 November 2006, in Melbourne, Victoria.Google Scholar
- Hunter, Rosemary. 2007. Consent in violent relationships. In Choice and consent: Feminist engagements with law and subjectivity, ed. Rosemary Hunter and Sharon Cowan, 158–173. Oxon: Routledge-Cavendish.Google Scholar
- Kebbell, Mark, Emily Hurren, and Paul Mazerolle. 2006. An investigation into the effective and ethical interviewing of suspected sex offenders. Trends and issues in crime and criminal justice no 327. Canberra: Australian Institute of Criminology.Google Scholar
- Kelly, Liz, Jo Lovett, and Linda Regan. 2005. A gap or a chasm? Attrition in reported rape cases (Home Office Research Study 293). London: Home Office Research, Development and Statistics Directorate.Google Scholar
- Klein, Richard. 2008. An analysis of thirty-five years of rape reform: A frustrating search for fundamental fairness. Akron Law Review 41: 981–1058.Google Scholar
- Lievore, Denise. 2003. Non-reporting and hidden recording of sexual assault: An international literature review. Canberra, Australia: Commonwealth Office of the Status of Women.Google Scholar
- Lievore, Denise. 2004a. Prosecutorial decisions in adult sexual assault cases: An Australian study. Canberra: Office of the Status of Women.Google Scholar
- Lievore, Denise. 2004b. Victim credibility in adult sexual assault cases. Trends and issues in crime and criminal justice no 288. Canberra: Australian Institute of Criminology.Google Scholar
- Lievore, Denise. 2005. No longer silent: A study of women’s help-seeking decisions and service responses to sexual assault. Canberra: Australian Institute of Criminology for the Australian Government’s Office of Women.Google Scholar
- Lindsay, Robert. 2008. Feminazi rape laws gone berserk. Robertlindsay.wordpress.com. http://robertlindsay.wordpress.com/2010/02/06/feminazi-rape-laws-gone-berserk/. Accessed 31 Mar 2010.
- Loranhe, Luc. 2010. Feminazi’s rape. SexualFront.com. http://www.sexualfront.com/rape.htm. Accessed 31 Mar 2010.
- Mack, Kathy, and Sharyn Roach Anleu. 2000. Resolution without trial, evidence law and the construction of the sexual assault victim. In Feminist Perspectives on Evidence, ed. Mary Childs and Louise Ellison, 125–148. London: Cavendish Publishing Limited.Google Scholar
- Munro, Vanessa. 2007. Law and politics at the perimeter: Re-evaluating key debates in feminist theory. Oxford and Portland: Hart Publishing.Google Scholar
- Munro, Vanessa, and Liz Kelly. 2009. A vicious cycle? Attrition and conviction patterns in contemporary rape cases in England and Wales. In Rape: Challenging contemporary thinking, ed. Miranda Horvath and Jennifer Brown, 281–300. London: Routledge/Taylor and Francis.Google Scholar
- Naffine, Ngaire. 1992. Windows on the legal mind: The evocation of rape in legal writings. Melbourne University Law Review 18(4): 741–767.Google Scholar
- NSW Bureau of Crime Statistics and Research. 2007. Increase in the conviction rate for sexual offences in NSW courts. Sexual offence information sheet no 6. http://www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/Sexual_offence_Information_sheet_06.pdf/$file/Sexual_offence_Information_sheet_06.pdf. Accessed 19 Feb 2011.
- Office for Women. 2008. Australia’s combined sixth and seventh report on the implementation of the Convention on the Elimination of All Forms of Discrimination Against Women July 2003–2008. Canberra: Commonwealth of Australia.Google Scholar
- Orenstein, Aviva. 1998. No bad men! A feminist approach to character evidence in rape trials. Hastings Law Journal 49: 663–716.Google Scholar
- Phillips, Janet, and Malcolm Park. 2006. Measuring domestic violence and sexual assault against women: A review of the literature and statistics (E-Brief issued 6 December 2004, updated 12 December 2006). Canberra: Parliamentary Library, Parliament of Australia.Google Scholar
- Regan, Linda, and Liz Kelly. 2003. Rape: Still a forgotten issue (Briefing Document for Strengthening the linkages—Consolidating the European network Project). London: Child and Woman Abuse Studies Unit.Google Scholar
- Schafran, Lynn Hecht. 1993. Writing and reading about rape: A primer. St John’s Law Review 66: 979–1046.Google Scholar
- Seidman, Ilene, and Susan Vickers. 2005. The second wave: An agenda for the next thirty years of rape law reform. Suffolk University Law Review 38: 467–491.Google Scholar
- SSCRSA (Statewide Steering Committee to Reduce Sexual Assault, Victoria). 2006. A study of reported rapes in Victoria 2000–2003: Summary research report (based on a study by Dr Melanie Heenan and Dr Suellen Murray). Victoria: Office of Women’s Policy, Department of Victorian Communities.Google Scholar
- Taylor, Natalie. 2007. Juror attitudes and biases in sexual assault cases. Trends and Issues in Crime and Criminal Justice No 344. Canberra: Australian Institute of Criminology.Google Scholar
- Taylor, Natalie, and Jacqueline Joudo. 2005. The impact of pre-recorded video and closed circuit television testimony by adult sexual assault complainants on jury decision-making: An experimental study. Research and Public Policy Series No 68. Canberra: Australian Institute of Criminology.Google Scholar
- Temkin, Jennifer, and Barbara Krahé. 2008. Sexual assault and the justice gap: A question of attitude. Oxford and Portland, Oregon: Hart Publishing.Google Scholar
- VicHealth. 2006. Two steps forward, one step back: Community attitudes to violence against women (A summary of findings of the Community attitudes to violence against women project). Melbourne: VicHealth. http://www.vichealth.vic.gov.au/~/media/ProgramsandProjects/MentalHealthandWellBeing/DiscriminationandViolence/ViolenceAgainstWomen/CAS_Paper3_CriticalLiterature.ashx. Accessed 31 Mar 2010.
- VLRC (Victorian Law Reform Commission). 2001. Sexual offences: Discussion paper. Melbourne: Victorian Law Reform Commission.Google Scholar
- VLRC (Victorian Law Reform Commission). 2004. Sexual offences: Final report. Melbourne: Victorian Law Reform Commission.Google Scholar
- Warner, Kate. 2001. Sentencing review 2000–2001. Criminal Law Journal 25: 332–344.Google Scholar