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Rape Myths, Law, and Feminist Research: ‘Myths About Myths’?

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Abstract

In an article recently published in the Oxford Journal of Legal Studies, the legal scholar Helen Reece argues that the prevalence and effects of rape myths have been overstated and the designation of certain beliefs and attitudes as myths is simply wrong. Feminist researchers, she argues, are engaged ‘in a process of creating myths about myths’ in a way that serves to close down and limit productive debate in this ‘vexed’ area. In this article we argue that Reece’s analysis is methodologically flawed, crudely reductionist and rhetorically unyielding. We locate Reece’s analysis within the wider theoretical field to show how her failure to engage with feminist literature on rape other than in the narrowest, most exclusionary terms, yields an approach which impedes rather than advances public understanding and panders to a kind of simplistic thinking which cannot begin to grapple with the complexity of the phenomenon that is rape. We conclude by emphasizing the continuing commitment of feminist researchers carefully to theorize and (re)map the fraught field of progressive legal strategizing in order to identify and counter the kinds of risks and shortcomings of political activism with which Reece is rightly concerned.

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Notes

  1. See generally Crown Prosecution Service (CPS) ‘Narrowing the Justice Gap’ (http://www.cps.gov.uk/publications/prosecution/justicegap.html).

  2. See e.g.: CPS guidance on rape and sexual offences (http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/societal_myths/); Metropolitan Police Sapphire Unit guidance (http://content.met.police.uk/Article/Myths-about-rape/1400006934074/1400006934074).

  3. It should be noted at no point in his article does Dripps consider or indeed refer to rape myths. Note also that throughout the article, Reece erroneously refers to Dripps as ‘Draper’.

  4. See also Ellison and Munro (2013).

  5. Although Gavey makes these comments in relation to an entirely different rape myth: ‘it no longer makes sense to speak of women enjoying rape except perhaps in the most perverse and underground of circles’ (2005, 203, our emphasis).

  6. See in particular 450, 453, 454, 467–70, 454, 455, 460, 462–464.

  7. The ideas in Reece’s article—in highly provocative and reductionist form—appear in the media section of her institutional website (http://www.lse.ac.uk/newsAndMedia/news/archives/2013/03/Too-much-blame-placed-on-popular-prejudices-against-rape-victims-for-low-conviction-rates.aspx), in The Guardian (http://www.theguardian.com/society/2013/mar/25/rape-myths-low-conviction-rate), and on an OUP blog (http://blog.oup.com/2013/07/myths-about-rape-myths/). Reece has also reiterated her views in a recent public debate, part of the LSE ‘Debating Law’ public event series on 30 October 2013 (http://www.lse.ac.uk/publicEvents/events/2013/10/20131030t1830vSZT.aspx#DynamicJumpMenuManager_1_Anchor_1). Reece also writes regularly about rape and related topics in the online current affairs magazine, Spiked, in virtually all cases taking up a position which is self-consciously opposed to the perceived stance of rape reform activists (see e.g. ‘rape trials must be completely open’, 18 February 2013 (arguing against anonymity for either defendants or victims) and ‘rape-law reforms are poisoning relationships’, 7 February 2011 (arguing that rape law reform is encouraging the unnecessary criminalization of teenage sexual errors) accessible at www.spiked-online.com.

  8. This search for the new is evident in the titles of recent essay collections on rape which purport to ‘challenge contemporary thinking’ (Horvath and Brown 2009) and ‘rethink rape law’ (McGlynn and Munro 2010).

  9. This is notwithstanding Reece’s reproduction of Gerger et al’s definition of rape myths as ‘descriptive or prescriptive beliefs about rape… that serve to deny, downplay, or justify sexual violence that men commit against women’ (Reece 2013a, b, 453, citing Gerger et al. 2007, 423; our emphasis). Note too that Gerger et al. build into the definition that the beliefs in question have particular harmful effects; it is this which provides the ethical element of ‘wrongfulness’ which Reece disdains (Gerger et al. 2007, 423).

  10. Ross and Allgeier are focusing on a different psychometric study, the Sexual Experiences Survey (SES) devised by Koss and Oros (1982).

  11. The AMMSA instructions read as follows: ‘Please read each statement carefully and then circle that number from 1 to 7 that you feel best represents your opinion. The points on the scale have the following meaning 1 = completely disagree; 2 = disagree; 3 = disagree somewhat; 4 = neutral; 5 = agree somewhat; 6 = agree; 7 = completely agree’ (Gerger et al. 2013).

  12. Of the proceedings commenced for rape in 2009 matched to an outcome in either the magistrates or Crown Court by 2011, 55.9 % were convicted of an offence (33.2 % found guilty of the offence charged) (MOJHOONS 2013, 37). By comparison, 81 % of defendants charged with murder were found guilty of an offence (48.2 % found guilty of the offence charged) (ibid. 39). The conviction rate for charges of rape heard in the Crown Court when an offender pled not guilty was 27 % (ibid. 38), where the conviction rate for murder from not guilty pleas was 58 % (ibid. 40).

  13. Reece relies here on the MOJ Criminal Justice Statistics for 2012 but gives no reason for selecting burglary as her comparator offence; nor does she go into detail about comparative methodologies. The comparison with murder (MOJHOONS 2013) which is direct and methodologically aligned seems more reliable although, to be fair, Reece was likely unaware of this study when her article went to print.

  14. For an analysis directly contradicting Reece’s claim that there is no evidence that convictions for rape are lower than for other serious crime see Krahé (2013, 2–4).

  15. The reasons Reece considers are (1) in rape, unlike other crimes, the identity of the perpetrator is often known. According to Reece this is offset by other factors. (2) Rape is a vastly under-reported crime. Reece argues that we have insufficient comparative data to show that rape is any less reported than other crimes. (3) Rape is particularly and/or uniquely harmful. This Reece identifies as a contentious claim to which she gives no further consideration. See generally Reece (2013a, 449–450).

  16. In 2011/2012, there were 14,767 recorded rapes of a female and 1,274 rapes of a male (MOJHOONS 2013, 20). Only a man can be charged with rape under section one of the Sexual Offences Act 2003. A woman can be charged with assault by penetration under section two of the Act and with a variety of sexual assault offences.

  17. If a boyfriend ‘borrows’ £10 from his girlfriend’s purse, then presumably he does not have an ‘intention to permanently deprive’ as required by section 6 Theft Act 1968. Similarly, if a son repeatedly ‘forgets’ to repay the loan he received from his mother, he does not have the intention to permanently deprive or alternatively, may not be ‘dishonest’ according to the Ghosh [1982] EWCA Crim 2 test for dishonesty. A friend who ‘manoeuvres himself out of paying his share of the restaurant bill’ may be ‘cheap’ or a bad friend, but unless he has made off without payment (section 3 Theft Act 1978) he has committed no crime.

  18. R v R [1992] 1 AC 599.

  19. [2001] UKHL 25, [2002] 1 AC 45.

  20. Ibid. per Lord Slynn of Hadley 10; Lord Steyn 31, 32, 43, 45.

  21. The question of whether evidence of a prior relationship is relevant to a woman’s consent should be distinguished from the question of whether that evidence is relevant to the defendant’s belief in consent, a circumstance fully covered by s 41(3)(a). For the implications of this distinction in terms of the legal construction of rape victims, see McGlynn (2010).

  22. This is one of the many ways in which cultural constructions of heterosex promote attributions of culpability to the rape victim. In her discussion of ‘coffee as culpability’ (Reece 2013a, 468–472) tackles the question of the ‘responsibility’ of rape victims by drawing a distinction between responsibility as accountability (or blame) and responsibility as causal, the implication being that the latter is a technical, neutral characterization carrying no particular moral weight. When people say rape victims are ‘responsible’, Reece argues, they may mean it only in this ‘benign’ sense (ibid 469) rather than attributing blame. While this may well be true in some cases—albeit accepting a rather strained notion of responsibility quite detached from its etymological origins in responsible (Old French) and responsus (Latin) which suggest answerability or accountability—what is problematic about attributions of responsibility in rape cases is the role they can play in legally exonerating the rapist. The burglar by contrast is no less legally culpable because a householder has forgotten to lock the door. The question then is not whether we consider rape victims more or less ‘responsible’ than other crime victims but the role responsibility plays in the discursive scripts which frame our apprehension of heterosexual encounters.

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Conaghan, J., Russell, Y. Rape Myths, Law, and Feminist Research: ‘Myths About Myths’?. Fem Leg Stud 22, 25–48 (2014). https://doi.org/10.1007/s10691-014-9259-z

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