Skip to main content

Advertisement

SpringerLink
Log in

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

  • Published:
Feminist Legal Studies Aims and scope Submit manuscript

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.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

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.

References

  • Adler, Zsuzsanna. 1987. Rape on trial. London: Routledge.

    Google Scholar 

  • Bohner, Gerd, et al. 2009. Rape myth acceptance: Cognitive, affective and behavioural effects of beliefs that blame the victim and exonerate the perpetrator. In Rape: Challenging contemporary thinking, ed. Miranda Horvath, and Jennifer Brown, 17–45. Devon: Willan.

    Google Scholar 

  • Bottomley, Anne, and Joanne Conaghan. 1993. Feminist theory and legal strategy. Journal of Law and Society 20: 1–6.

    Article  Google Scholar 

  • Bourke, Joanna. 2007. Rape: A history from 1860 to the present. London: Virago.

    Google Scholar 

  • Bowers, Toni. 2011. Force or Fraud: British seduction stories and the problem of resistance. Oxford: OUP.

    Book  Google Scholar 

  • Brundage, James. 1987. Law, sex, and christian society in mediaeval Europe. Chicago: University of Chicago.

    Book  Google Scholar 

  • Burt, Martha. 1980. Cultural myths and supports for rape. Journal of Personality and Social Psychology 38(2): 217–230.

    Article  Google Scholar 

  • Chaplin, Robert, et al. (eds.). 2011. Crime in England and Wales 2010/11. London: Home Office.

    Google Scholar 

  • Conaghan, Joanne. 2013. Law and gender. Oxford: OUP.

    Book  Google Scholar 

  • Connelly, Connelly, and Kate Cavanagh. 2007. Domestic abuse, civil protection orders and the `new criminologies’: Is there any value in engaging with the law? Feminist Legal Studies 15(3): 259–287.

    Article  Google Scholar 

  • Cowan, Sharon. 2007. ‘Freedom and capacity to make a choice’: A feminist analysis of consent in the criminal law of rape. In Sexuality and the law: Feminist engagements, ed. Vanessa Munro, and Carl Stychin, 51–72. Oxon: Routledge.

    Google Scholar 

  • Crenshaw, Kimberle. 1989. Demarginalizing the intersection of race and sex: A Black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics. The University of Chicago Legal Forum 139–168.

  • D’Cruze, Shani. 2012. Sexual violence in history: A contemporary heritage? In Handbook on sexual violence, ed. Jennifer Brown, and Sandra Walklate, 23–52. Oxon: Routledge.

    Google Scholar 

  • Davies, Margaret. 2013. Law’s truth and the truth about law: Interdisciplinary refractions. In The Ashgate research companion to feminist legal theory, ed. Margaret Davies, and Vanessa Munro, 65–81. Surrey: Ashgate.

    Google Scholar 

  • Dripps, Donald. 2008. After rape law: Will the turn to consent normalize the prosecution of sexual assault? Akron Law Review 57: 957–980.

    Google Scholar 

  • Du Toit, Louise. 2007. The conditions of consent. In Choice and consent: Feminist engagements with law and subjectivity, ed. Rosemary Hunter, and Sharon Cowan, 58–73. London: Glasshouse.

  • Du Toit, Louise. 2009. A philosophical investigation of rape: The making and unmaking of the feminine self. New York: Routledge.

    Google Scholar 

  • Ellison, Louise, and Vanessa Munro. 2010. A stranger in the bushes, or an elephant in the room? Critical reflections upon received rape myth wisdom in the context of a Mock Jury study. New Criminal Law Review 13(4): 781–801.

    Google Scholar 

  • Ellison, Louise, and Vanessa Munro. 2013. Better the devil you know? ‘Real rape’ stereotypes and the relevance of a previous relationship in (mock) juror deliberations. The International Journal of Evidence & Proof 17(4): 299–322.

    Article  Google Scholar 

  • Feild, Hubert. 1978. Attitudes toward rape: A comparative analysis of police, rapists, crisis counsellors, and citizens. Journal of Personality and Social Psychology 36(2): 156–179.

    Article  Google Scholar 

  • Flatley, John, et al. 2010. Crime in England and Wales 2009/10. London: Home Office.

    Google Scholar 

  • Frith, Hannah. 2009. Sexual scripts, sexual refusals and rape. In Rape: Challenging contemporary thinking, ed. Miranda Horvath, and Jennifer Brown, 99–122. Devon: Willan.

    Google Scholar 

  • Gavey, Nicola. 2005. Just sex? The cultural scaffolding of rape. Hove: Routledge.

    Google Scholar 

  • Gerger, Heike, et al. 2007. The acceptance of modern myths about sexual aggression scale: Development and validation in German and English. Aggressive Behaviour 33: 422–440.

    Article  Google Scholar 

  • Gerger, Heike et al. 2013. Acceptance of modern myths about sexual aggression (AMMSA) scale: Measurement instrument database for the social science (retrieved from www.middss.ie).

  • Gilbert, Neil. 1991. The phantom epidemic of sexual assault. Public Interest 103: 54–65.

    Google Scholar 

  • Graycar, Regina, and Jenny Morgan. 2005. Law reform: What’s in it for women? Windsor Yearbook of Access to Justice 23(2): 393–419.

    Google Scholar 

  • Godden, Nikki. 2013. Is the problem of rape myths in the criminal justice system overstated? http://inherentlyhuman.wordpress.com/2013/06/14/is-the-problem-of-rape-myths-in-the-criminal-justice-system-overstated/. Accessed 24 Sep 2013.

  • Freedman, Estelle. 2013. Redefining rape. Cambridge: Harvard.

    Google Scholar 

  • Hale, Matthew. 1736. Historia Placitoruma Coranae: Vol I. Sollom Emlyn.

  • Hall, George (ed.). 1965. The treatise on the laws and customs of the realm of England commonly called Ganvill. London: Nelson.

    Google Scholar 

  • Hampton, Jean. 1999. Defining wrong and defining rape. In A most detestable crime: New philosophical essays on rape, ed. Jackson Burgess, 118–158. Oxford: OUP.

  • Horvath, Miranda, and Jennifer Brown (eds.). 2009. Rape: Challenging contemporary thinking. Devon: Willan.

    Google Scholar 

  • Hunter, Rosemary (ed.). 2008. Rethinking equality projects in law. Oxford: Hart.

    Google Scholar 

  • Hunter, Rosemary. 2013. Contesting the dominant paradigm: Feminist critiques of liberal legalism. In The Ashgate research companion to feminist legal theory, ed. Margaret Davies, and Vanessa Munro, 13–30. Surrey: Ashgate.

    Google Scholar 

  • Jhappan, Radha. 2002. Women’s legal strategies in Canada. Toronto: University of Toronto.

    Google Scholar 

  • Kennedy, Helena. 1993. Eve was framed: Women and British justice. London: Chatto & Windus.

    Google Scholar 

  • Koss, Mary, and Cheryl Oros. 1982. The sexual experience survey: A research instrument investigating sexual aggression and victimization. Journal of Consulting and Clinical Psychology 50(3): 455–457.

    Article  Google Scholar 

  • Koss, Mary. 2000. Blame, shame, and community: Justice responses to violence against women. American Psychologist 55(11): 1332–1343.

    Article  Google Scholar 

  • Koss, Mary. 2006. Restoring rape survivors. Annals of the New York Academy of Sciences 1087: 206–234.

    Article  Google Scholar 

  • Krahé, Barbara. 2013. Myths about rape myths? Let the evidence speak. http://www.uni-potsdam.de/fileadmin/projects/sozialpsychologie/assets/Comment_Reece_Paper.pdf. Accessed 12 Nov 2013.

  • Larcombe, Wendy. 2011. Falling rape conviction rates: (Some) Feminist aims and measures for rape law. Feminist Legal Studies 19: 27–45.

    Google Scholar 

  • Lonsway, Kimberly, and Louise Fitzgerald. 1994. Rape myths. Psychology of Women Quarterly 18: 133–164.

    Article  Google Scholar 

  • MacKinnon, Catharine. 1983. Feminism, Marxism, method, and the state: Toward feminist jurisprudence. Signs 8(4): 635–658.

    Article  Google Scholar 

  • MacKinnon, Catharine. 1987. Feminism unmodified. Cambridge: Harvard.

    Google Scholar 

  • MacKinnon, Catharine. 1989. Toward a feminist theory of the state. Cambridge: Harvard.

    Google Scholar 

  • Mardorossian, Carine. 2002. Toward a new feminist theory of rape. Signs 27(3): 743–775.

    Article  Google Scholar 

  • McGlynn, Clare. 2010. R v A (No 2) Judgment. In Feminist judgments: From theory to practice, eds. Hunter, Rosemary et al. 211–227. Oxford: Hart.

  • McGlynn, Clare, and Vanessa Munro (eds.). 2010. Rethinking rape law: International and comparative perspectives. London: Routledge.

    Google Scholar 

  • McGregor, Joan. 2012. The legal heritage of the crime of rape. In Handbook on sexual violence, ed. Jennifer Brown, and Sandra Walklate, 69–90. Oxon: Routledge.

    Google Scholar 

  • MOJHOONS. 2013. An overview of sexual offending in England and wales. London: Home Office.

    Google Scholar 

  • Myhill, Andy, and Jonathan Allen. 2002. Rape and sexual assault of women: The extent and nature of. London: Home Office.

    Google Scholar 

  • Naffine, Ngaire. 1990. Law and the sexes: Explorations in feminist jurisprudence. Sydney: Allen & Unwin.

    Google Scholar 

  • Naffine, Ngaire. 1994. Possession: Erotic love in the law of rape. Modern Law Review 57(1): 10–37.

    Article  Google Scholar 

  • Post, J.B. 1978. Ravishment of women and the Statutes of Westminster. In Legal records and the historian, ed. J.H. Baker, 150–164. London: London Royal Historical Society.

    Google Scholar 

  • Reece, Helen. 2013a. Rape myths: Is Elite opinion right and popular opinion wrong? Oxford Journal of Legal Studies 33(3): 445–473.

    Article  Google Scholar 

  • Reece, Helen. 2013b. Rape trials must be completely open. http://www.spiked-online.com/newsite/article/13353. Accessed 20 Nov 2013.

  • Ross, Ronald, and Elizabeth Allgeier. 1996. Behind the pencil/paper measurement of sexual coercion: Interview-based clarification of men’s interpretations of sexual experiences survey items. Journal of Applied Social Psychology 26(18): 1587–1616.

    Article  Google Scholar 

  • Rumney, Philip. 2006. False allegations of rape. Cambridge Law Journal 65(1): 128–158.

    Article  Google Scholar 

  • Russell, Yvette. 2013. Thinking sexual difference through the law of rape. Law and Critique 24(3): 255–275.

    Article  Google Scholar 

  • Schlag, Pierre. 1998. The enchantment of reason. London: Duke.

    Book  Google Scholar 

  • Smart, Carol. 1995. Law, crime and sexuality. London: Sage.

    Google Scholar 

  • Smart, Carol. 1989. Feminism and the power of law. London: Routledge.

    Book  Google Scholar 

  • Stern, Vivian. 2010. The stern review. London: Government Equalities Office.

    Google Scholar 

  • Temkin, Jennifer, and Barbara Krahé. 2008. Sexual assault and the justice gap: A question of attitude. Oxford: Hart.

    Google Scholar 

Download references

Author information

Authors and Affiliations

  1. University of Bristol Law School, Wills Memorial Building, Queens Road, Bristol, BS8 1RJ, UK

    Joanne Conaghan

  2. Queen’s University Belfast, 28 University Square, Belfast, BT7 1NN, UK

    Yvette Russell

Authors
  1. Joanne Conaghan
    View author publications

    You can also search for this author in PubMed Google Scholar

  2. Yvette Russell
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Yvette Russell.

Rights and permissions

Reprints and permissions

About this article

Cite this article

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

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s10691-014-9259-z

Keywords

Search

Navigation