Abstract
Reviewed by: Rachael Burgin, School of Social Sciences, Monash University, Australia
The provocatively titled collection, Rape Justice: Beyond the Criminal Law (Rape Justice), edited by Anastasia Powell, Nicola Henry, and Asher Flynn provides a comprehensive guide to current debates around the concept of ‘justice’ as perceived and experienced by victim-survivors of sexual violence. In Chapter 1, the editors open their collection by contextualising it within the socio-political climate in which these debates are taking place; a landscape characterised by ineffective legal responses to sexual violence and the setting aside of the realities of rape, to instead prioritise ‘stranger rape’ as ‘real rape’ (Estrich, 1987). This landscape exists within what has been termed ‘rape culture’; the normalisation of men’s sexual violence against women (p. 1). The collection states at the outset that the analysis is situated within the conflict between societal understandings of rape as the ‘worst of crimes’ (p. 1), and society’s tacit inability to recognise the reality of women’s lived experiences. The book aims to ‘reconceptualis[e] … justice both within and beyond the criminal law’ (p. 4) and is also explicit in its intention to work towards a broader recognition of the impact of sexual violence on women.
This driving force is shared by each of the 14 contributors. In Chapter 2, Haley Clark explores experiences of ‘justice’ and of the justice system. She argues that ‘privileging the knowledge and insights of victim-survivors enables more robust understandings of justice to emerge’ (p. 19). This centralising of victim-survivors’ voices is one of the principal achievements of the book. Rape Justice as a whole highlights and responds to the shortcomings of traditional, formal criminal justice responses, to focus on the importance of a more comprehensive conceptualisation of justice for victim-survivors. Kathleen Daly builds on this in her chapter (Chapter 3) which calls for a broader understanding of justice within the wider ‘context of victimisation’, with a specific focus on ‘justice mechanisms’, not simply on ‘types of justice’ (p. 38). Her point is that a multitude of approaches working in tandem would be more effective in responding to victim-survivors’ often-nuanced justice needs, than solely relying on the traditional prosecution process.
James Roffee’s chapter (Chapter 5) calls for a better understanding of forms of sexual abuse that are difficult to draw clear divisions around. Roffee problematises the one-size-fits-all approaches within law, which may criminalise behaviour that might more appropriately be dealt with outside the criminal justice system. In particular, he argues that consent, as currently conceptualised within criminal law, does not provide a clear framework for handling all ‘illegal’ acts. Roffee also explores the idea that the law is too rigid and unwilling to accept the idea that one could perhaps consent to bodily harm or violence, such as that which might be involved in sadomasochistic sexual acts. Roffee raises questions over how far the law should interject into the personal lives of individuals (for example, consensual familial adult sexual interactions) and argues that in the area of sexual offending, dominant regulatory processes through the criminal sphere ‘continue to show the influences of their past historical, social and cultural norms’ (p. 86).
Lise Gotell’s chapter (Chapter 4) presents a strong reply to criticism of the feminist efforts and struggles in the fight against sexual violence. In particular, she responds to those who have argued that feminist intervention simply strengthens the carceral arm of the state, by realigning law reform efforts as seeking recognition of the harm of sexual violence, not simply punishment for offenders. Thus, rejecting the ‘caricature [put forward by critics] of what were complex and critical feminist engagements with the state’ (p. 68). In this way, Gotell’s argument affirms Daly’s contention that a range of justice mechanisms working together can perhaps respond more comprehensively to the varied needs of victim-survivors. Citing influential feminist scholars, Wendy Larcombe and Clare McGlynn, Gotell, argues that completely abandoning feminist intervention in rape (criminal) law is misguided, and risks ‘the return of impunity for acts of sexual violence’ (p. 67).
Within the broad aim of ‘reconceptualis[ing] justice’ for victim-survivors, Rape Justice offers alternative mechanisms of and for achieving ‘justice’, presenting critical examinations of normative legal responses (i.e., through the criminal law) and non-traditional mechanisms of responding to victimisation experiences. Asher Flynn (Chapter 6) explores two initiatives that transcend the traditional legal response to sexual violence: specialist sexual violence courts and prosecutions, and restorative justice models. Drawing from both international and national examples, such as sexual violence courts in South Africa, the specialist sexual offences unit operating in the Office of Public Prosecutions in Victoria, and restorative justice initiatives across Australia and New Zealand, Flynn argues that such responses can provide an avenue to meet victim-survivors’ procedural needs in ways that conventional courts simply cannot.
Moving beyond the criminal law, Nikki Godden-Rasul (Chapter 7) explores the capacity for tort law to respond to the harms experienced by victim-survivors. She argues that from a victim-survivor’s perspective, civil law might address their justice needs and capture their experience of victimisation more completely than criminal law. Anastasia Powell (Chapter 13) further supports the idea that victim-survivors can attain some sense of justice beyond the criminal justice system, by exploring the potential of the online world. Powell argues that informal justice online can provide validation to victim-survivors. She uses examples of women turning to online spaces to share their stories or name offenders when the criminal justice system has failed them or they have chosen not to formally report. Citing Nicola Henry (2010)’s concept of ‘bearing witness’, Powell argues that justice online can respond to victim-survivors’ justice needs on an individual level, and work to right the wrongs of ‘misrecognition’ by society (particularly those supported by rape culture) more broadly.
The scope of the collection extends to conventional and non-conventional responses and numerous issues experienced by victim-survivors of sexual violence the world over, in developed and developing nations. This international focus is another major strength of the collection. In her chapter, Ivana Radačić (Chapter 8) identifies the European Court of Human Rights as an avenue for response when domestic legal systems fail. Rosemary Nagy (Chapter 11) explores sexual violence experiences of indigenous women in Canada, arguing that ‘sexual violence is entangled with gender, race, economics, colonialism, globalisation and land, and this is highly evident in the experience of indigenous women’ (p. 183). Her powerful chapter explores the example of the over 1800 missing and murdered indigenous women in Canada since 1980 and urges processes of decolonisation, through frameworks of human rights, as a response to gendered violence against indigenous women who remain particularly vulnerable to victimisation. The strength of the international scope of the collection is also demonstrated through the compelling analyses presented in Niels Nagelhus Schia and Benjamin de Carvalho’s chapter (Chapter 9) exploring the United Nations Security Council resolutions on protecting women and children in post-conflict settings (focusing on Liberia), and Sara E. Davis and Jacqui True’s chapter (Chapter 10), in which they argue that the link between structural gender inequality and conflict-related sexual and gendered violence is under-established in the current literature. Nicola Henry (Chapter 12) also develops an international focus in exploring civil society tribunals as providing ‘a unique truth-seeking forum for victim-survivors of historical wartime sexual violence’ (p. 214).
Rape Justice presents fresh arguments that reinvigorate the debates and discussion around feminist intervention in responses to sexual violence. These debates are crucial where rape myths continue to persist internationally and criticism of feminist engagement with criminal law can be sidelined as ‘carceral feminism’. This text contributes significantly to the literature around the varied justice needs of victim-survivors both individually and collectively, and provides critical insight into future directions for reform beyond the criminal law.