Abstract
Rape and other forms of sexual violence against women have been a major subject of attention by feminist scholars and activists for decades, as have the laws and policies that respond (or fail to adequately respond) to rape (see Caringella, 2009; Temkin and Krahé, 2008; Sheehy, forthcoming 2012). Two recent collections of essays contribute in different ways to our understandings of rape, its treatment by states and transnational bodies, and the role of feminists in pushing for laws, policies and services that meet the needs of rape victims. International Approaches to Rape contains nine essays, each about the treatment of rape in a different national context. Rethinking Rape Law: International and Comparative Perspectives also includes nine essays focused on the domestic treatment of rape in various jurisdictions, as well as sections on conceptual and theoretical issues, international and regional approaches, and ‘new agendas and directions’. I will discuss the contours of each collection, focusing on the dialogues within and between them, both those made by the authors themselves and those that readers are left to make themselves.
International Approaches to Rape: A Country-by-Country Approach
International Approaches to Rape is the second collection of essays edited by Nicole Westmarland and Geetanjali Gangoli (see also Gangoli and Westmarland, 2006). The nine chapters comprise studies of rape statistics, policy and law in Australia, Canada, China, England and Wales, India, Iran, Scotland, South Africa and the United States. According to Westmarland and Gangoli, they strove to cover a wide geographical area, including countries where little had been written about rape (China and Iran), and those which had recently undertaken reforms to rape law and policy (e.g. Australia, England and Wales, and South Africa) (p.5). Neither International Approaches to Rape nor Rethinking Rape Law contains contributions from Latin America, seemingly because of language issues (Westmarland and Gangoli, p.5; McGlynn and Munro, p.12).
Westmarland and Gangoli identify several overarching themes across the nine chapters. In respect of the first, ‘honour, shame and stigma’, they note that this is not a phenomenon restricted to particular cultures or societies, to particular forms of sexual violence, or to times of war and conflict (pp.6–7). This links to the second theme of the book, globalization, which the editors suggest may have reduced the stigma associated with some sexual behaviour, if not that associated with rape (p.7). In addition, globalization has increased the ‘sexualization and commodification of women’s bodies’, as well as ‘wealth disparities’ that may lead to increased vulnerability to rape and the ability to claim financial compensation (pp.7–8). A third theme they note is continued impunity for sexual violence, both in countries which have well developed legislative and policy responses and strong anti-rape movements, and in developing countries (p.8). The tenacity of rape myths is the fourth theme, as well as the limited impact that legal reforms have had in this regard (p.9). Lastly, the editors identify the discrepancies between laws on paper and laws in practice, pointing to widespread problems with the conduct of police, lawyers and judges, and the failures of law and policy reforms to change public attitudes to rape (pp.9–10). One theme not explicitly mentioned by the editors that struck me in reading this collection is the role that feminist activists and academics have had on rape laws and policies, which is an express theme of Rethinking Rape Law (McGlynn and Munro, p.5).
In their introduction to International Approaches to Rape, Westmarland and Gangoli note that they had the authors structure their essays in a predetermined way to allow comparisons between the chapters to be easily made (p.4). This is evident in that each chapter contains sections on the jurisdiction’s socio-political context, the position of women generally, and statistics related to sexual violence (or the lack of availability of such statistics in Iran and, surprisingly, Scotland (Aghtaie, p.122; Brindley and Burman, p.147). Each chapter also describes the current state of rape law and policy, as well as the key issues flowing from the countries’ responses to rape and associated needs and opportunities for reform. The focus is primarily on domestic laws and policies, although there is some discussion of international and regional frameworks in the chapters on Canada (Lakeman, p.45), China (Ye, p.57), and England and Wales (Westmarland, p.86). In contrast, international and regional rape laws are a major focus of McGlynn and Munro’s Rethinking Rape Law.
Some of the pressing issues identified in International Approaches to Rape include police and prosecution (mis)treatment of rape victims and cases; definitions of rape, consent and mistaken belief in consent; evidentiary issues (such as the admissibility of sexual history evidence and the need for corroboration); and concerns around sentencing. Many authors discuss the role of courts, and specifically the ways that notorious cases have led to law reform (e.g. Easteal, p.20; Gangoli, pp.104–107) or have given life to new constitutional or legislative provisions (Vetten, p.173). Connections are also drawn in most of the chapters between domestic and sexual violence, including attention to the legal treatment of marital rape. In addition, all chapters describe public attitudes and myths surrounding rape, and most outline the need for education and training, services for rape victims, and related funding.
Most chapters focus on describing and critiquing existing laws, and do not delve into conceptual or theoretical issues surrounding rape or its legal treatment. Some of the chapters could have been more tightly edited (e.g. Ye, pp.59–65), but at the same time, there were places where I would have appreciated more detail. For example, why is mistaken belief in consent a ‘dangerous strategy’ in Australia (p.19), and have efforts have been made to challenge or reform the corroboration requirement in Scotland (pp.154–155)?
Some authors also raise issues of concern to specific groups of women and men. In Canada, the ongoing colonial context is noted as particularly problematic (see pp.35–36), and the chapter on Australia discusses concerns related to indigenous women who are raped as well (pp.15, 16, 26). Other chapters consider the impact of rape laws and policies on marginalized populations, including those marked by race and class (Lakeman, p.48; Gangoli, p.102; Vetten, p.170; Schafran and Weinberger, p.207), religion and culture (Gangoli, p.103; Aghtaie, p.110), sexual orientation (Ye, pp.67–68; Brindley and Burman, p.152; Schrafan and Weiberger, p.195), and HIV/AIDS (Vetten, pp.171, 174, 180, 184–185). Issues related to rape in prison and the over-criminalization of specific groups of men are also raised (Schafran and Weinberger, p.213; Vetten, p.171). Not all chapters consider the circumstances of marginalized women and men, however (see e.g. Westmarland). These issues should be broadly addressed in order to ensure that inequalities in addition to gender are explored and accounted for in rape law and policy reforms.
As indicated, there is great overlap in the subjects covered in each chapter, but there is virtually no cross-referencing between chapters. More dialogue amongst the authors would have been useful, as readers are left to draw comparisons and contrasts between the various approaches and their merits and challenges, rather than having the benefit of the authors’ views on how reforms in other jurisdictions might inform their own countries’ responses to rape. For example, the chapter on China recommends a gender-neutral approach to sexual violence laws (pp.67–68, 73), but there is no engagement with the potential problems of such an approach identified in the chapter on India (p.116), nor does either of those chapters consider the situation in England, Wales and Scotland, where there is gender neutrality for victims but gender specificity for perpetrators (pp.82 and 152). Further, the chapters on South Africa and the United States examine some interesting alternatives to and innovations within the criminal justice system, including the role of specialized sexual offence courts and one-stop victim service centres, the use of civil suits as an alternative to criminal proceedings, and the role of expert evidence in rape prosecutions (Vetten, pp.178–179; Schafran and Weinberger, pp.202–203, 219–220). There were missed opportunities here for conversations amongst the authors that may have led to fruitful evaluations of the different approaches.
Rethinking Rape Law: From Theory to Practice and National to International Issues
Rethinking Rape Law: International and Comparative Perspectives is a collection of essays arising out of a 2008 conference commemorating the tenth anniversary of the International Criminal Tribunal for Rwanda decision in Akayesu (ICTR-96-4-T, 1998). Editors Clare McGlynn and Vanessa E. Munro note that the decision ‘provides an occasion for engaging with broader debates about the role and relevance of law as a mechanism for securing change in the context of rape’ (p.2). These debates are structured into four sections: ‘Conceptual and theoretical engagements’, ‘International and regional perspectives’, ‘National perspectives’, and ‘New agendas and directions’, and the editors identify several overarching themes that span these sections. First, several essays grapple with how to conceptualize and respond to the wrong of rape – should the law focus on consent, coercion, or something else; how should the harm of rape be framed; and how should individual and systemic considerations be balanced (pp.4–5)? Second, the book explores the role of feminist activism in developments around rape law, both in the chapters dealing with various national jurisdictions, and in some chapters considering international responses to rape (pp.5–6). Many of these chapters note the limits of feminist activism, which connects to the third theme identified by the editors, the limits of rape law reform in achieving change at the international and national levels (p.7). McGlynn and Munro indicate that some authors are more optimistic than others about the possibilities of legal reforms (p.8), and it is interesting to note that these authors are writing about legal systems at earlier stages in the development of rape laws (Croatia (Radačić and Turković) and Africa (Combrinck)). A final theme identified by the editors is the secondary victimization of rape complainants across a range of legal systems and identities, as well as some responses to this victimization (p.8). As noted, many of these themes also appear in International Approaches to Rape.
Rethinking Rape Law makes one of its most significant contributions in its treatment of conceptual and theoretical issues. This is the focus of Part 1, where Munro compares the coercion framework of Akayesu to the more traditional, consent-based approach of rape laws, advocating the adoption of a consent-plus model (pp.22–24), and Herring and Madden Dempsey propose an approach that would treat sexual penetration as a prima facie wrong requiring justification (p.30). Unfortunately, there was no engagement between these authors, so readers are left to assess whether Munro’s consent-plus model might provide the kind of justification called for by Herring and Madden Dempsey. Several other chapters in the collection address issues of consent, force, coercion, and the related issue of whether to prioritize sexual autonomy or sexual integrity, only some of which engage with the analysis in Part I (see e.g. Londono, pp.115–117). Beyond Part I, there are essays in other parts of the book that address theoretical and conceptual issues. For example, whether rape should be treated as sex discrimination or torture under international human rights law is the subject of two chapters (Edwards; Londono); some authors evaluate gender-based violence versus violence against women frameworks (Edwards; Combrinck); and the chapter on Canada explores the impact of neoliberalism on rape law and policy (Gotell). These theoretical considerations provide rich analyses that can be applied in a range of contexts pertinent to rape law and policy, and to violence against women more broadly.
Part II also makes an important contribution, particularly in comparing and critiquing different approaches (international vs regional, criminal vs human rights-based), and contexts (rape in times of war vs peace). The first three chapters in this part engage in an interesting conversation about rape in international criminal law generally (Cole, comparing approaches in Yugoslavia, Rwanda, Sierra Leone and the International Criminal Court), in the specific context of the Rwanda tribunal (Buss, p.62, undertaking a ‘close reading’ of the tribunal’s decisions and interviews with staff and lawyers), and with attention to the role of shame, stigma and honour in these contexts (Engle and Lottmann). ‘Everyday rape’ under international human rights law is also scrutinized (Edwards), and the final two chapters allow readers to contrast the treatment of rape under European and African regional human rights systems (Londono; Combrinck). The dialogue between authors is generally strong in this section, particularly amongst the first three chapters.
Part III deals with the national treatment of rape in many of the same jurisdictions as International Approaches to Rape (England and Wales, Scotland, Canada, the United States, Australia and South Africa, as well as Croatia, Italy, Sweden). The editors aimed to include ‘a diversity of approaches and traditions’, including countries where rape laws have been ‘little known or explored’ (pp.10, 12). Perhaps because of the overlap of geographical areas, the national studies in Rethinking Rape Law raise many of the same issues as International Approaches to Rape: the role of feminists in reforms to rape law and policy (e.g. McGlynn; Mills); definitions of rape, including issues of gender neutrality versus specificity (e.g. Cowan; Fenton; Burman; Gotell; Rush); and evidentiary/procedural issues (Radačić and Turković; Rush). Virtually all of the authors in this section consider the treatment of consent and mistaken belief in consent in their jurisdictions, with some authors addressing issues of particular concern, such as capacity and advance consent (e.g. Cowan; Burman; Gotell). The under-reporting of rape, concerns around attrition and the gulf between law and practice are also discussed in several chapters, along with aspects of the socio-political context that may influence these matters (e.g. Burman; Dripps; Mills). As in International Approaches to Rape, there is little dialogue between the authors in this section, leaving readers to draw comparisons across different national approaches themselves (for an exception, see Cowan).
Part IV contains two chapters addressing reforms that might respond to concerns raised in earlier sections. Raitt’s essay focuses on independent legal representation (ILR) for rape victims in the UK, and usefully reviews the availability of ILR in other jurisdictions as an alternative to further substantive reforms of the law (p.270). Ellison and Munro also focus on the UK, and report on their empirical research with mock jurors and the role of educational guidance in mitigating juror biases in rape trials. The final three chapters all address issues faced by rape victims who might be considered ‘outsiders’, building upon the treatment of intersectionality issues in earlier chapters (including HIV/AIDS (Combrinck); same sex rape (Cowan); Aboriginality (Gotell); and race and class (Dripps; Mills)). Rumney and Hanley discuss the mythologies surrounding the rape of adult men that they documented in focus group sessions, and note that many of these myths – for eaxample those involving victim resistance, clothing, and intoxication – are identified elsewhere in this collection (pp.297–298, referencing Ellison and Munro; Fenton). Gill speaks to violence against South Asian women in the UK, where expectations regarding shame and honour may adversely influence rape trials, undermine victims’ agency, and essentialize the role of culture (pp.314–315, referencing Buss and Ellison and Munro). Benedet and Grant explore the difficulties arising in rape cases involving women with mental disabilities and advocate an approach based on exploitation, which would focus on perpetrator rather than victim behaviour and avoid the capacity issues associated with a consent-based model. They argue that rather than being treated as outsiders, women with mental disabilities should be seen as ‘paradigmatic’ rape victims (p.333). This point is a fitting way to end the collection, as it reminds us that many victims face oppression and inequality on multiple grounds that should be central in informing approaches to rape, whether national, international, criminal or human rights-focused.
In conclusion, it should be noted that there is no dialogue between the books, which might be explained by the lack of duplication of authors across the large number of chapters spanning the two collections. Nevertheless, there are ample opportunities for readers to draw comparisons and develop new insights. For example, several chapters in International Approaches to Rape deal with issues of shame and honour (see Ye; Gangoli; Aghtaie) and the essay by Engle and Lottmann in Rethinking Rape Law introduces a critical lens through which to view these accounts. As another example, many of the national studies in International Approaches to Rape discuss legal representation for rape victims (Brindley and Burman, p.155; Vetten, p.175; Schafran and Weiberger, p.205), adding to the analysis of this issue in Rethinking Rape Law (Raitt). Finally, essays in both collections identify the need for continued dialogue with lawmakers at the national, regional and international levels, as well as scepticism about the extent to which such conversations may be fruitful in particular political and legal contexts. Especially read together, the books will be useful for academics and students in socio-legal disciplines, anti-rape activists, and law and policy makers across the globe.