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Published: Fri, 02 Feb 2018
The legal definition of rape
The Impact Of Feminist Legal Theory On The Legal Definition Of Rape
This paper will explore the impact of feminist legal theory on the legal definition of rape. The main focus of this paper will be views and criticisms made by feminists in relation to the criminal law, in particular rape. I will also consider the influence that these feminist criticisms have had in changing the legal definition of rape. Throughout this paper I aim to show that feminist legal theory has had a significant impact on the area of rape within English Law.
In recent years there have been a number of changes to the sexual offences legislation within English Law and as a result the aim of this paper will be to assess the impact of feminists on the reform of rape and how significant this impact is. Whilst it is true that men can now legally be victims of rape by another male, this paper will concentrate on the rape of women as historically it was only women who could fall victim to this crime.
In chapter one, I will consider the three main schools of feminist thought i.e. the liberal, radical and cultural approaches. In the second chapter I will consider the main criticisms of feminist legal theorists with regards to criminal law, in particular rape. In chapter three I will address the research question of this paper by referring to feminist criticism of the criminal law of rape in relation to the reform of the Sexual Offences Act’s. I will consider the changes that have been made to the legal definition of rape since 1956 and how feminist legal theorists have influenced these changes.
Feminist Legal Theory
Feminist legal theory responds to the basic insight that gender is important and that being a man or a woman impacts on and is a central feature of our everyday lives. “Feminist legal theory takes this approach into the study of law by examining how gender has mattered to the development of the law and how men and women are differently affected by the power in law”
“Despite a popular tendency to assume a feminist orthodoxy, feminist scholarship within and beyond law is expressive of significant diversity of thought and derives from a range of different political, cultural and philosophical traditions. These include liberalism, socialism and Marxism, American critical legal studies and critical race theory, poststructuralism and post-modernism, and psychoanalytic perspectives.” (Conaghan 2000:357-8).
Feminist views of rape can be understood to vary from liberal to radical. Liberal views tend to see rape as a gender-neutral attack on an individual, comparing it to other forms of assault and focusing mainly on the effect that rape has on the victim. In contrast to this, more radical views argue that rape it actually a result of our patriarchal society.
In this paper I will consider the three main strands of legal feminism: liberal, radical and cultural, outlining their diverse perspectives.
Liberal feminist’s main aim with regards to legal theory is the legal subjectivity for women as with their male counterparts. Legal feminist Patricia Cain states that “liberal feminism is rooted in the belief that women, as well as men, are right-bearing, autonomous human beings” and further comments that “rationality, individual choice, equal rights and equal opportunity are central concepts for liberal political theory”(Cain 1990:829). It is these concepts that liberal feminism focuses on in order to promote changes to statutes.
“Liberal feminists argue that women are just as rational as men and that women should have equal opportunity with men to exercise their right to make rational, self-interested choices”. Liberal feminist argue that the inequality of women is the result of the denial of their human rights, and also from their learned behaviour, the result of women’s reluctance to exercise them. Therefore, in the eyes of liberal feminists gender equality will only be achieved through reshaping individual beliefs and values, and through new processes of socialisation.
John Stuart Mill, a liberal philosopher and feminist activist was incensed that in marriage women became the sexual property of the man with no right to refuse sex. He stated that “he may claim from her and enforce the lowest degradation of a human being; that of being made the instrument of an animal function contrary to her intentions”. It can be assumed that Mills as a liberal feminist was addressing and challenging the issue of domestic violence in the context that men and women are both equals.
Liberal feminists would argue that equality for women can only be achieved through legal means and social reform, and that men as a group do not need to be challenged directly. In this way they accept the legal system that is set up by men but campaign for women to be included within it.
The emphasis on equality by liberals is stigmatised by radical feminists as mistaken, since asserting women’s similarity to me assimilates women into the male domain, thereby making women into men. As Cain comments “litigators, like Ruth Bader Ginsberg, have been charged as being short-sighted, because they adopted an assimilationist theory of equality that would benefit women only if they acted like men”
One of the most critical anxieties of liberal feminism is the border between the private and the public domain. This is mainly because women tend to be excluded from the public sphere where political equality is realised.
Under the campaign of liberal feminism, women have won several legislative and judicial victories, some of which include the suffrage, equal pay, benefits, access to employment and education, the right to serve on juries, the limited right to terminate pregnancy, the gradual legal recognition of domestic violence and outlawing of marital rape.
Under liberal feminism women appeared to succeed only at a cost. Given that the key notions of legal liberalism are those of neutrality, impartiality and universality, arguments and legislative provisions have to be framed in such a way as not to contradict those ideals. The Sex Discrimination Act is a clear example of this point as it prohibits discrimination on the basis of sex, rather than prohibiting discrimination against women.
Liberal feminists seek to challenge the ideas and practices that treat women as second class citizens but does not challenge any fundamental structures within society, rather it looks for barriers which prevent women operating effectively in the public sphere on equal terms with men.
Radical feminists see rape as arising from patriarchal constructions of gender and sexuality within the context of broader systems of male power, and emphasize the harm that rape does to women as a group. They view the existing culture, social, economic and legal differences between men and women as a product of male domination. Since women are systematically exploited by men, women can usefully be defined as a subordinate social class. As Cain states “radical feminists focus on women as a class, typically as a class that is dominated by another class known as men”. Cain portrays the notion that women are not just unequal, but oppressed and that revolution is needed instead of emancipation. Radical feminism avoids the individualist gradualism of liberal feminism as it is seen as reinforcing the inequality of the status quo.
Radical feminists believe that society is an oppressive patriarchy, which primarily oppresses women. They see the division in society as that between men an women, they believe that men dominate women; men take from women, as Cain comments “radical feminists tend to build arguments that focus on the differences between men and women; they argue that these differences have been constructed in such a way as to contribute to women’s inequality”. Furthermore radical feminists believe that since men have been in control for so long, legal discourse completely ignores the reality of women’s lives.
Radical feminists also argue that legal reasoning itself reinforces men’s power over women. They argue that statutes granting ‘equality’ to women are mere concessions made by men and that liberal feminism does little to help understand the nature of women’s oppression “since liberal feminists arguments for equality are primarily based on the similarities between men and women”.
Catherine MacKinnon a leading radical feminist contests the idea that “since men have defined women as different women can never achieve equality”. She adapts a Marxist analysis with themes of power, domination and alienation. MacKinnon comments “given that men dominate women, the question is one ultimately of power, the law is effectively a masculine edifice that cannot be altered merely by admitting women through its doors or including female values within it’s rules or procedures”. In conclusion to MacKinnon’s view of equality, equality is a question of distribution of power.
Much of MacKinnon’s work focuses on the way in which male sexuality is expressed in ways which objectify and subjugate women, especially through violence, rape, sexual harassment, prostitution and pornography. All are forms of sexual subordination and should therefore, in her opinion, be seen as sex discrimination.
Radical feminists such as Christine Littleton have argues for a reconstructed concept of sexual equality which would recognise women’s differences from men. Littleton comments that “to ‘accept’ women’s differences, society must do something more than merely accommodate the differences”. Littleton advocates ‘equality as acceptance’, which emphasise the consequences rather than the sources of difference. Littleton believes that equality as acceptance will only be achieved “when women’s differences to men are costless”.
Radical feminists have also attacked concepts on the view of sexuality in rape cases and the language of the law. MacKinnon states that “the point of defining rape as ‘violence not sex’ or ‘violence against women’ has been to separate sexuality from gender in order to affirm sex (heterosexuality) while rejecting violence (rape)”. She also states that the convergence of sexuality with violence, long used at law denies the reality of women’s violation, “which is recognised by rape survivors, with a difference: where the legal system has seen the intercourse as rape, victims see the rape in intercourse”.
Radical feminism seeks to expose the domination of women by ‘asking the woman questions’ in order to expose the gender implications of rules and practices that might otherwise appear to be impartial or neutral.
For many radical feminists, patriarchal relations underlie all others forms of oppression. Radical feminism seeks to challenge this arrangement by rejecting standard general roles and male oppression. The aim of radical feminists is to abolish patriarchy and oppression of all kinds by attacking the underlying cause of the problem and addressing the fundamental components of society which support them. Radical feminists believe that they must struggle as women to overthrow patriarchy and oppression in women only groups. The ultimate aim is to challenge gender relations fundamentally and the belief that there is still a need for reform in order to position women where they ought to be.
Cultural feminism is the ideology of a female nature or female essence re-appropriated by feminists themselves in an effort to revalidate undervalued female attributes. Cultural feminists believe that there are fundamental personality and psychological differences between men and women, and that these differences are not only unique, but superior. Cain states that “like radical feminism, cultural feminism focuses on women’s differences from men, however unlike their radical sisters, embrace women’s difference” thus portraying the notion that cultural feminists celebrate women’s differences.
Cultural feminism is uncomfortable with the liberal feminist’s emphasis to formal equality and gender, which it maintains, undermines the differences between men and women. It argues that equality is a more subtle and complex objective than liberals allow.
Cultural feminism has recognised the biological differences between men and women and extracted from this an idea of an inherent ‘women’s culture’. Carol Gilligan for example argues that “women, because of their different life experiences, speak in a ‘different voice’ from their male counterparts since women see themselves as connected with other; men see themselves as separate from others”
Gilligan identifies the female voice with caring and relationships “when confronted with a moral dilemma, women are more concerned about relationships and needs, the context in which the dilemma arises and the ‘ethics of care’. Men are more concerned with abstract, rigid rules and adversarial and individualistic concepts such as rights and justice”.
The belief that women are kinder and gentler than men prompts cultural feminists to call for an infusion of women’s culture into the male-dominated world. “For cultural feminism, male domination is based on the foundation of the modern structure of thought (reason) on the male experience and the force of violence”. In conclusion Morrison states that many things of value are lost to humanity by the subordination of women’s perspective and experience.
The aim of cultural feminism is to give equal recognition to women’s moral voice of caring and communal values. Cain states that “cultural feminism is interested in changing institutions to give equal weight to women’s moral voice, they argue that the category ‘women’ has not been so much misdefined by men, as it has been ignored and undervalued”.
Another area of interest for cultural feminists is legal discourse or legal reasoning. Some argue that the introduction of politically correct language has not necessarily changed the negative experiences of women engaged in the legal process. One related debate which exists is on the extent to which language and culture of statute and case law tends to consider women as having responsibilities in the area of caring for and avoiding harm to children.
Similarly Robin West charges all legal modern theory as ‘masculine’ since it is based on the view that all human beings are primarily distinct and unconnected to each other. He states that “a properly constructed feminist jurisprudence would reflect the reality of women’s lives-their essential connectedness”.
Cultural feminism endeavours to reveal the unstated premises of the law’s substance, practice, and procedure by exposing the miscellaneous kinds of discrimination implicit in the criminal law, the law of evidence, and the process of legal reasoning itself. Such as the call for revision of the partial defences of provocation and diminished responsibility to acknowledge the reality of battered women’s syndrome and pre-menstrual syndrome. Cultural feminists have also attacked the concept of the ‘reasonable man’, the male view of female sexuality which is applied in rape cases, and the very language of the law itself.
Cain concludes that cultural feminism focuses upon the positive characteristic of women’s ‘special bond’ to others, while radical feminism concentrates on the negative dimension: the sexual objectification of women.
Cultural feminism seeks to improve the relationship between the sexes and often cultures at large by celebrating women’s special qualities, and often belive that the ‘woman’s way’ is the better way, or that culture itself is overly masculine and requires balance from a perspective.
These three theories assume vastly different approaches to patriarchy. Liberal feminism looks to integrate women within the present structure, by altering beliefs and processes of socialisation and legislating to guarantee women rights. Radical feminism, by contrast does not want to integrate women into the patriarchal structure and instead seeks to overthrow patriarchy and implement a female-centred structure. Cultural feminism, like radical feminism considers the differences between men and women, however it reaches the conclusion that there needs to be a better relationship between men and women and that the patriarchal structure needs to embrace women’s qualities.
Feminist Criticism Of Criminal Law: Rape
There has been much research by feminists into the area of criminal law, particularly since the 1960’s, which has produced many criticisms of the law in this area. Feminist research within the area of criminal law usually focuses on the experiences of women. It centres on male “physical, sexual and psychological violence” against women and often focuses on rape. However, in addition to considering issues of significance and concern to women, feminist theory also extends to critical analysis of general concepts and principles which criminal law is based upon, i.e. the doctrine of mens rea.
Many Feminists have criticised the notion of judicial impartiality. The liberal ideal of justice suggests that it is unfair to apply different rules to different classes of people. Doherty states that “law’s insistence on treating like cases alike creates the pretence that certain important differences between men/women are not real differences: the law thus reinforces unjustifiable differences in treatment”. The principle of applying the same rules to males and females is viewed as a question of equality and justice. The problem for feminist critics is that this balance does not lead to fairness. Feminists argue that formal equality through uncritical and rigid application reinforces substantive unfairness, which is already present within criminal law and embedded within legal concepts. In reality the difference between a woman’s options and that of a man’s makes the operation of legal principles completely unfair. They illustrate this through examples of rape.
Feminists have argued that criminal law has proven inadequate in its application of equality in relation to violence, both within the home and outside of it. Their criticism stems from the private and public distinction of violence within law as Barnett highlights the liberal approach to violence is traditionally viewed as a domestic, private family matter that is “not the business of the law”; Wacks illustrates in his Short Introduction to philosophy of Law (2006) that “crimes of domestic violence normally occur within the home into which the law is often reluctant to intrude” thus claiming that wives and partners of violent males have very little protection from criminal law.
The main criticism of criminal law for feminists lies in the disparity between low levels of prosecution of male perpetrators of violence and the treatment of women who are victims. As the findings of the Fawcett Society Commission, concluded that even where a victim of domestic violence is prepared to take action and co-operate in a prosecution, often the victim later refuses to provide evidence against the violent partner. Barnett comments “to pursue criminal proceedings is ineffective as the majority of defendants in domestic violence cases are given non-custodial sentances or very short sentances, only to return to and inflict more violence as a form of revenge”. It is clear that women are not offered sufficient protection from violent partners, and often refuse to undertake into any sort of legal proceeding for fear of reprise from the perpetrator.
For feminists the main criticisms regarding criminal law are those in relation to rape and domestic violence, two areas of the law which are often seen to be linked to one another. Celia Wells in her article The Impact of Feminist Thinking on Criminal Law comments that “a vignette of current concerns suggests that much has changed in the last few decades in relation to domestic violence and rape”. The Home Office have set up a ministerial group on domestic violence. Harriet Harman emphasises the importance the government attaches to effectively tackling the crime of rape. Despite this, many feminist legal theorists do not believe that the changes that have been made in the law go far enough and do not believe that they are sufficient in their protection and treatment of female victims.
Feminist Views Of Rape
The law on rape is one of the most contentious issues for feminist legal theorists, and many feminists argue that gender-bias is both open and hidden within this area of criminal law. Much of the criticism made by feminists focuses around the difficulties in proving the non-consent element of rape, cross examination, rape myths, the use of sexual history evidence in court and the ruling of DPP v Morgan.
According to many feminist theorists the starting point for their critique is the law as perceived through women’s experience and the objective of the critique is to demonstrate that the law subordinates women. Although “it may pretend otherwise the law, is not neutral or impartial in it’s treatment of men and women” and furthermore that “the law systematically reflects, maintains and legitimates patriarchy, which is the phenomenon of power being in male hands. Mainstream law is ‘malestream law”. Feminist theorists criticise mainstream law as being patriarchal and state that masculinity dominates the legal system and in turn defines and protects men, not women. Many feminist theorists believe that by discounting gender differences the law is simply perpetuating patriarchal power which leads to the subordination of women within the public sphere of the law.
Furthermore, feminist legal scholars have demonstrated that ‘gender-neutral’ laws have a significantly different impact on men and women. Monti argues that that the gender-neutral label in the ‘reasonable person test’ avoids the fact that the test is based on the assumption of what a man would do in a given situation. This means that the courts do not recognise the differences of how a man and a woman would react in different circumstances.
One of the most influential and radical ideas to emerge in the feminist discussion of rape is that sex and rape are more alike than different. MacKinnon comments that “the line between rape and intercourse commonly centres on some measure of the woman’s will…”.
Sara Hinchliffe also confirmed the radical argument that rape and sex are similar; in her article published in the independent she comments that “this notion has become increasingly popular among feminists and also appears to be increasingly in favour with official political and legal circles”. This theory would imply that the law’s distinction between rape and sex is problematic since it “suggests that a clear distinction can be drawn between violence and non-violence and thereby between abusive and ‘normal’ men”. This theory, that rape and sex are dissimilar only through the will of the woman, is a contentious one for many feminist legal theorists as it focuses solely on the woman’s consent and would suggest that this is the only difference between the two, it further suggests that perhaps women only ‘give into’ sexual intercourse, rather than actually wanting it, as a result of male domination within society. This theory has been criticised as it suggests that much of sexual intercourse between men and women is coercive and therefore rape, and ignores that a heterosexual woman may enjoy consenting heterosexual sex.
Feminists such as Professor Sue Lees argue that “the law should promote ‘communicative’ sex – and that it should penalise the non-communicative sex”. She argues that “calling rape violence fails to address the coercive nature of some male sexual behaviour” (1997:96). Feminist legal theorists claim that cultural prejudices regarding female sexual behaviour and norms of femininity distort the sense of rape prosecutions. As Ellis in 1948 described “men and women delight of sex in very different ways; whereas men ‘delight in domination’, women ‘delight in roughness, violence and pain” (2005:19). Although Berrington and Jones have commented that feminists who argue such notion’s perpetrate the culture of violence as ‘normal’, which contributes to the notion of sexual assault as being normalised” (2002:311). It is clear that often male ‘roughness’ during sexual intercourse is thought of as being ‘normal’ within our patriarchal society and therefore calling rape, violence does not assist in distinguishing between an act of rape and sexual intercourse. This stereotyping of male and female sexual behaviour also extends to women.
Sue Lees comments that the much-reported experience of rape victims is that it is they, rather than the accused, who are on trial. As she states “women that give evidence in court describe the process as being ‘as traumatic as the rape itself” (2002:ix). In the same way that men’s sexual behaviour is stereotypes, so too is a woman’s. Historically during a rape trial the defence lawyers would question the alleged victim as to her sexual history, and use this as evidence; the trial would become a question of the woman’s credibility over that of the accused guilt. This is an issue that feminists legal theorists have criticised heavily.
The actus reus of rape originally defined within the Sexual Offences Act 1956 was ‘unlawful sexual intercourse with a woman’. The 1976 amendment of the act was incorporated as an extenuation to this definition, with the addition of the term ‘without her consent’, however “the 1976 act made no attempt to set out what was meant by the phrase ‘without her consent”
However, in the feminist critical writings on the law on rape, the central problem has been that of consent in relation to the mens rea of the crime. The legal definition of rape states that the act must involve sexual intercourse where one of the parties is withholding consent.
Consent is a question of the victim’s state of mind at the time of the act. Feminist legal theorists have often argued that there is a substantial difference between consent and submission, which could occur for example if a woman feared that she may lose her job. This was reinforced through the courts in the case of R. v Olugboja (1982), a case in which two women were terrorised into submission, where it was ruled that consent was no defence to rape. This was a clarification of the law that meant in effect that it was actual consent under duress of threats that was no defence, that submission did not imply consent and that the prosecution did not have to prove that the victim physically resisted. This decision raises questions over whether consent is an issue which the jury should be left to decide on a case by case basis or whether the law should clarify the circumstances in which consent would automatically be present or absent and perhaps create a statutory definition of consent, ideas which feminist legal theorists have been campaigning for for some time.
In this case, the question of whether the defendant believed that the woman was consenting was an obvious one, that did not require much consideration on the part of the jury, however recent law has been much more problematic.
As Baird states the general line of defence used in most rape cases is that the victim consented to the intercourse, or that the accused believed that the victim was consenting to the intercourse. The issue of consent is then what many rape defence arguments are based upon. Therefore it is evident that clarification of this notion is required in order to ensure that both men and women are entirely clear on what constitutes consent, and what doesn’t. The white paper, which followed the review of sexual offences, had a whole chapter dedicated to the clarification of consent, which defines “consent” and “sexual” and sets out evidential and conclusive presumptions about consent.
Westmarland claims that the root of the problem in relation to consent lies in the burden placed on the prosecution to prove the absence of consent, rather than requiring the defendant to prove that they had taken the necessary steps as to ascertain consent. She comments that this is a unique concept which only applies to rape by illustrating examples such as theft and assault and comments that one would not have to prove in the absences of consent in these cases, this is an issue which many feminist legal theorists such as Jennifer Temkin have been particular vocal about in recent years.
Another problem with consent that is highlighted by feminist legal theorists is that since rape is a crime which is committed against an individual; it is difficult to prove consent as it is only the victim’s word against the accused or vice versa therefore making it difficult to validate either person’s statement.
The issue of consent in relation to rape was established for the first time within statute in 1976 by virtue of the sexual offences amendment act 1976, although its presence within common law can be dated back to 1845. The authority of Camplin established that although no force was used it was clear that the act of intercourse was against the victim’s will and that she could not have consented to it.
It seems that within the law regarding rape there is a clear absence of a definition of consent which is a key element of the offence, this in turn has made it hard to secure convictions and has received much criticism from feminist legal theorists.
Consent: Marital Rape
The Sexual Offences 1956 Act stated that rape was ‘unlawful’ sexual intercourse. Unlawful in the eyes of the law was considered to mean outside of marriage. The key case with regards to marital rape and consent is R. v R. In R. v R, the husband claimed that he was not guilty of raping his wife although she did not consent to sexual intercourse the act within itself was not unlawful under the working definition of the SOA 1976 amendment Act.
Prior to the judgement of R v R a husband could not be convicted of raping his wife as he had marital immunity in the words of Sir Matthew Hale 1736. Following R. v R and the removal of the word “unlawful” from the definition of rape it is clear that a husband may be prosecuted for raping his wife, however this case was heard in 1992 and it has often been the subject of criticism by feminist legal theorists, who question why such an immunity against a rape charge was still in use at a time when very few people could see any reason to support this clause.
Westmarland comments that rape within marriage became illegal within common law and statute; as a result of over 100 years of feminist campaigning on relation to the law’s gender bias, when the word ‘unlawful’ was removed from the definition of the actus reus of the Sexual Offences Act 1956 as amended 1976 by virtue of the criminal Justice and Public order Act (2004:6).
Consent: When It Is Automatically Deemed Absent
As Jennifer Tempkin describes since Camplin there have been many other cases where consent is automatically deemed to be absent. In brief she provides the following example referred to as the ‘category approach’; where there is force, or where force is evident, where the victim is asleep or intoxicated, where fraud is involved, including the impression of the victims’ husband (Temkin, 2000).
The ruling in Olugboja stated that consent was a state of mind, and that it is for the jury to make up their own mind as to whether consent was present based on the victim’s state of mind at the time of the alleged rap
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