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Thinking Sexual Difference Through the Law of Rape

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Abstract

2013 marks 10 years since the Sexual Offences Act 2003 was passed. That Act made significant changes to the law of rape which appear now to have made very little difference to reporting, prosecution or conviction rates. This article argues that the Act has failed against its own measures because it remains enmeshed within a conceptual framework of sexual indifference in which woman continues to be constructed as man’s (defective) other. This construction both constricts the frame in which women’s sexuality can be thought and distorts the harm of rape for women. It also continues woman’s historic alienation from her own nature and denies her entitlement to a becoming in line with her own sexuate identity. Using Luce Irigaray’s critical and constructive frameworks, the article seeks to imagine how law might ‘cognise’ sexual difference and thus take the preliminary steps to a juridical environment in which women can more adequately understand and articulate the harm of rape.

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Notes

  1. Section 74 introduced a definition of consent while sections 75 and 76 detailed evidential and conclusive presumptions with respect to consent. In addition to these consent-based provisions section 1 introduced the ‘reasonable belief’ mens rea standard conclusively displacing the ‘honest belief’ standard so derided from DPP v Morgan [1975] 2 WLR 913. The SOA also introduced the inclusion of oral penetration within the actus reus of rape.

  2. In 2002/2003 there were 12,295 recorded offences of rape and in 2010/2011 there were 15,935. The biggest increase was amongst male complainants rising from 850 in 2002/2003 to 1310 in 2010/11 (Chaplin et al. 2011, p. 43).

  3. Cf. Larcombe (2011) criticising the use of conviction rates in rape prosecutions as an appropriate measure of ‘success’. She argues that strategies associated with increasing conviction rates may in fact be in direct conflict with feminist aims in the area to fight rape myths and stereotypes which have infiltrated legal discourse about the virtuous raped woman. Larcombe points out that a focus on conviction rates inevitably leads to the selective prosecution of only a small number of reported rapes which fit within the ‘real rape’ template, and thus are more likely to accord with the myths and stereotypes of rape that jury members have been shown to draw upon when making decisions on evidence in a trial (Larcombe 2011, p. 32).

  4. Irigaray uses the adjective ‘sexuate’ to connote a broader description of what is involved in a culture of sexual difference. With respect to law, her proposal for sexuate identities involves the rights of all individuals to cultural self-expression as sexed beings.

  5. Irigaray’s concept of humanity is very much tied to her understanding of human beings as sexuate. As such, sexual difference in her work is humanity.

  6. When Irigaray speaks of a ‘nature’ appropriate to the feminine she is not referring to essential or pre-discursive characteristics of ‘womanhood’ that women need to return to; to define a woman’s nature would be to engage in a phallocentric politics of representation. She is referring to an as yet unknowable morphology of the female sex informed by systems of language and representation unmediated by the phallus. As Elizabeth Grosz explains, ‘her work is not a true description of women or femininity, a position that is superior to false, patriarchal conceptions. … Her aim is quite different: it is to devise a strategic and combative understanding, one whose function is to make explicit what has been excluded or left out of phallocentric images’ (Grosz 1989, p. 110).

  7. For a critical appraisal of these positions see Rumney (2007). Philip Rumney has argued passionately in defence of the move to gender neutrality in the law of rape in many western jurisdictions. In his analysis, gender neutrality in rape law extends the protection of the criminal law to all persons and ‘reflects modern understandings of the nature, effects, and dynamics of nonconsensual penetrative sex acts, and is an evidence-led means of appropriately labeling criminal conduct’ (Rumney 2007, p. 481). Underpinning Rumney’s position is his insistent dismissal of feminist arguments against gender neutrality in rape law based on what he labels ‘theory’ in favour of his own account which he terms ‘reality’—‘grounded in the wider legal and social science literature’ (ibid.) Gender neutrality in his argument ‘does not prevent the gendered analysis of rape’ (ibid., p. 482), but is ‘a means of appropriately labeling conduct that is similar in nature and effect.’ (ibid., p. 484).

  8. Cf: Rumney (2001), p. 896 and Temkin (2002), pp. 60–62 heavily criticising the review panel for failing to acknowledge incidences of female perpetrated rape, arguing that the panel was not ‘equal enough’ given its professed ‘…overarching commitment…to equality and fairness’ (Home Office 2000, p. 3).

  9. See for example Temkin (2002), p. 96.

  10. For a more detailed discussion of the link between autonomy and consent in the SOA see Munro (2008).

  11. A particularly harrowing example of this type of courtroom dynamic in the UK context can be seen in the recent case of Michael and Hilary Brewer, found guilty of five counts of indecent assault (and not guilty on three further counts and one count of rape) on 8 February 2013. Their victim, Frances Andrade, committed suicide the day after giving evidence against her abusers describing the experience to a friend as ‘liked being raped all over again’ and as feeling ‘fragmented’ after her courtroom ordeal (Pidd and Ibbotson 2013).

References

  • Boyle, Christine. 1985. Sexual assault and the feminist judge. Canadian Journal of Women and the Law 1: 93.

    Google Scholar 

  • Braidotti, Rosi. 1994. Of bugs and women: Irigaray and Deleuze on the becoming-woman. In Engaging with Irigaray: Feminist philosophy and modern European thought, ed. Carolyn Burke, Naomi Schor, and Margaret Whitford. New York: Columbia University Press.

    Google Scholar 

  • Bumiller, Kristin. 2008. In an abusive state: How neoliberalism appropriated the feminist movement against sexual violence. London: Duke University Press.

    Google Scholar 

  • Burke, Carolyn. 1994. Irigaray through the looking glass. In Engaging with Irigaray: Feminist philosophy and modern European thought, ed. Carolyn Burke, Naomi Schor, and Margaret Whitford. New York: Columbia University Press.

    Google Scholar 

  • Chaplin, Rupert, John Flatley, and Kevin Smith (eds.). 2011. Crime in England and Wales 2010/11. London: Home Office.

    Google Scholar 

  • Cheah, Pheng, and Elizabeth Grosz. 1998. Of being-two: Introduction. Diacritics 28(1): 3.

    Article  Google Scholar 

  • CPS. 2010/2011. Violence against women and girls crime report 2010–2011 data. http://www.cps.gov.uk/data/violence_against_women/vaw_2010_11_report.html. Accessed 22 Oct 2012.

  • Cornell, Drucilla. 1993. Transformations. New York: Routledge.

    Google Scholar 

  • Deutscher, Penelope. 2002. A politics of the impossible: The later work of Luce Irigaray. Ithaca: Cornell University Press.

    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. London: Glasshouse.

    Google Scholar 

  • 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. 2009. Of ‘normal sex’ and ‘real rape’: Exploring the use of socio-sexual scripts in (mock) jury deliberation. Social and Legal Studies 18: 291.

    Article  Google Scholar 

  • Estrich, Susan. 1987. Real rape: How the legal system victimizes women who say no. Cambridge, MA: Harvard University Press.

    Google Scholar 

  • Finch, Emily, and Vanessa Munro. 2006. Breaking boundaries? Sexual consent in the jury room. Legal Studies 26(3): 303.

    Article  Google Scholar 

  • Gordon, Margaret, and Stephanie Riger. 1991. The female fear: The social cost of rape. New York: Free Press.

    Google Scholar 

  • Gregory, Jeanne, and Sue Lees. 1996. Attrition in rape and sexual assault cases. British Journal of Criminology 36(1): 1.

    Article  Google Scholar 

  • Grosz, Elizabeth. 1989. Sexual subversions. Sydney: Allen & Unwin.

    Google Scholar 

  • Grosz, Elizabeth. 2006. The force of sexual difference. In Sex, breath, and force, ed. Ellen Mortensen. Lanham: Lexington.

    Google Scholar 

  • HMCPSI/HMIC. 2002. A report on the joint inspection into the investigation and prosecution of cases involving allegations of rape. London: HMCPSI/HMIC.

  • HMCPSI/HMIC. 2007. Without consent: A report on the joint review of the investigation and prosecution of rape offences. London: Central Office of Information.

    Google Scholar 

  • Harris, Jessica, and Sharon Grace. 1999. A question of evidence? Investigating and prosecuting rape in the 1990s. London: Home Office.

    Google Scholar 

  • Home Office. 2000. Setting the boundaries: Reforming the law on sex offences. London: Home Office.

    Google Scholar 

  • Home Office. 2002. Protecting the public: Strengthening the protection against sex offenders and reforming the law on sexual offences. London: Home Office.

    Google Scholar 

  • Home Office. 2006. Sexual Offences Act 2003: A stocktake of the effectiveness of the Act since its implementation. London: Home Office.

    Google Scholar 

  • IPCC. 2013. Southwark Sapphire Unit’s local practices for the reporting and investigation of sexual offences, July 2008–September 2009. http://www.ipcc.gov.uk/news/Pages/IPCC-finds-failings-in-the-working-practices-of-Southwark-Sapphire-Unit-between-July-2008-and-September-2009.aspx. Accessed 03 Apr 2013.

  • Irigaray, Luce. 1985a. Speculum of the other woman, (trans: Gill, G. Ithaca). Ithaca: Cornell University Press.

  • Irigaray, Luce.1985b. This sex which is not one, (trans: Porter, Cornell). Ithaca: Cornell University Press.

  • Irigaray, Luce. 1990. Women’s exile: Interview with Luce Irigaray. In The feminist critique of language, ed. Cameron, Deborah, (trans: Venn, Couze). New York: Routledge.

  • Irigaray, Luce. 1993a. An ethics of sexual difference, (trans: Burke, Carolyn and Gillian C. Gill). New York: Continuum.

  • Irigaray, Luce. 1993b. Je, tu, nous: Toward a culture of difference, (trans: Martin, Alison). New York: Routledge.

  • Irigaray, Luce.1993c. Sexes and genealogies, (trans: Gill, Gillian C.). New York: Columbia University Press.

  • Irigaray, Luce.1994. Thinking the difference: For a peaceful revolution, (trans: Montin, Karin). London: Athlone Press.

  • Irigaray, Luce.1996. I love to you: sketch for a felicity within history, (trans: Martin, Alison). New York: Routledge.

  • Irigaray, Luce. 2000. To be two, (trans: Rhodes, Monique and Marco Cocito-Monoc). London: Athlone.

  • Irigaray, Luce. 2002. The way of love, (trans: Bostic, Heidi and Stephen Pluháček). London: Continuum.

  • Irigaray, Luce. 2005. Between east and west, (trans: Pluháček, Stephen). Delhi: New Age.

  • Irigaray, Luce. 2008. The return. In Teaching, ed. Luce Irigaray, and Mary Green. London: Continuum.

    Google Scholar 

  • Irigaray, Luce. 2013. In the beginning, she was. London: Bloomsbury.

    Google Scholar 

  • Kelly, Liz, Jo Lovett and Linda Regan. 2005. A gap or a chasm? Attrition in reported rape cases. London: Home Office Research Study 293.

  • Kelly, Liz, Jennifer Temkin and Sue Griffiths 2006. Section 41: an evaluation of new legislation limiting sexual history evidence in rape trials. London: Home Office Online Report 20/06.

  • Lacey, Nicola. 1998. Unspeakable subjects: Feminist essays in legal and social theory. London: Hart.

    Google Scholar 

  • Larcombe, Wendy. 2011. Falling rape conviction rates: (Some) feminist aims and measures for rape law. Feminist Legal Studies 19(1): 27.

    Article  Google Scholar 

  • MacKinnon Catharine A. 1990. Liberalism and the death of feminism. In The sexual liberals and the attack on feminism. ed. Leidholdt, Dorchen and Janice Raymond. New York: Teachers College Press.

  • Madriz, Esther. 1997. Nothing bad happens to good girls: Fear of crime in women’s lives. Berkeley: University of California Press.

    Google Scholar 

  • Munro, Vanessa. 2008. Constructing consent: Legislating freedom and legitimating constraint in the expression of sexual autonomy. Akron Law Review 41: 923.

    Google Scholar 

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

    Article  Google Scholar 

  • Naffine, Ngaire. 1998. The legal structure of self-ownership: Or the self-possessed man and the woman. Journal of Law and Society 25(2): 193.

    Article  Google Scholar 

  • Naffine, Ngaire. 2011. Women and the cast of legal persons. In Gender, sexualities and law, ed. Jackie Jones, Anna Grear, Rachel Fenton, and Kim Stevenson. Oxford: Routledge.

    Google Scholar 

  • Novotny, Patricia. 2003. Rape victims in the (gender) neutral zone: The assimilation of resistance? Seattle Journal for Social Justice 1: 743.

    Google Scholar 

  • Pidd, Helen and Philippa Ibbotson. 8 February 2013. Sexual abuse victim killed herself after giving evidence at choirmaster trial. Guardian online http://m.guardian.co.uk/uk/2013/feb/08/sexual-abuse-victim-killed-herself-trial. Accessed 11 Feb 2013.

  • Rumney, Philip. 2001. The review of the sex offences and rape law reform: Another false dawn? Modern Law Review 64(6): 890.

    Article  Google Scholar 

  • Rumney, Philip. 2007. In defence of gender neutrality within rape. Seattle Journal of Social Justice 6: 481.

    Google Scholar 

  • Temkin, Jennifer. 2000. Prosecuting and defending rape: Perspectives from the Bar. Journal of Law and Society 27(2): 219.

    Article  Google Scholar 

  • Temkin, Jennifer. 2002. Rape and the legal process. New York: Oxford University Press.

    Book  Google Scholar 

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

    Google Scholar 

  • Warr, Mark. 1985. Fear of rape among urban women. Social Problems 32(3): 238.

    Article  Google Scholar 

  • Williams, Rachel. 20 July 2012. Women sue the Met over handling of sexual assault cases. Guardian Online http://www.guardian.co.uk/uk/2012/jul/20/women-sue-met-sexual-assault. Accessed 22 Oct 2012.

  • Young, Alison. 1998. The Waste Land of the law, the wordless song of the rape victim. Melbourne University Law Review 22(2): 442.

    Google Scholar 

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Acknowledgments

I would like to thank Rosemary Hunter for her patient guidance and encouragement during the preparation of this article. For thoughtful and generous comments on earlier drafts I would also like to thank Ovidiu Anemtoaicei, Nick Piška and Nayeli Urquiza Haas.

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

    Yvette Russell

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Russell, Y. Thinking Sexual Difference Through the Law of Rape. Law Critique 24, 255–275 (2013). https://doi.org/10.1007/s10978-013-9122-4

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