The Rape Trial and the Limits of Liberal Reform. And Why Legal Scholars need to do Theory Better

By Dr Yvette Russell, Lecturer in Law (University of Bristol Law School).

Orestes Pursued by the Furies (1922-25) by John Singer Sargent

In recently published work I engage in a philosophical and psychoanalytic excavation of legal discourse on (and in) the rape trial.[1]  In this post I briefly summarise my key claims arguing, while I do, that legal scholars must diversify the theoretical tools they draw on in confronting issues of social justice.

Much feminist scholarship on rape asserts that the law has reached a best practice plateau and justice for victims is now being held back primarily by the aberrant ‘attitudes’ of criminal justice actors charged with implementing the law. Those attitudes, it is argued, militate against the best intentions of law makers charged with stemming burgeoning attrition rates. Attrition refers to the phenomena – not anomalous in the criminal justice system, but particularly marked in cases of sex crime – whereby alleged instances of sexual violence drop out of the criminal justice system.  This occurs at multiple points, the most notable of which is the first point where a victim makes the decision to report to police. 

It is thought that only around 15 per cent of cases of sexual violence are reported to police.  For those who do report, attrition may occur at the point at which police decide to ‘record’ the report as a crime, whether they decide to refer the case to the Crown Prosecution Service (CPS), whether the CPS decide to proceed with prosecution, whether the trial goes ahead, and whether the perpetrator is convicted. Comparison with crimes of similar seriousness reveal a much higher rate of attrition for sex crimes than for others.  As evidence mounts of the failure of legislative and policy initiatives to increase prosecution and convictions rates for crimes like rape, feminist scholars and others have been concerned to understand why.

Many scholars assert, based on a wealth of varied empirical data, that the pervasive acceptance of ‘rape myths’ militate against the fair and neutral application of the law in cases of sexual violence where women remain the principal victims and men the perpetrators.[2]  The argument, therefore, made predominantly by liberal theorists, is that rather than law reform the focus needs to be instead on correctly attitudes in order that the law can be implemented as intended.

Without denying the importance of work on socio-cultural attitudes to gender and sexuality, I object to the implicit framing of the problem in this manner. It assumes that law is an inanimate and benign force for good waiting patiently for us to ‘sort out our attitudes’ and put it to work.  I argue that alongside this project we need to return to our interrogation of the legal text and its manifestation in discursive form to trace the way in which law remains proudly and steadfastly resistant to calls for its reform in this particular area.

The essence of my contention, and it is one I have made in previously published work,  is that law has an investment in a symbolic order characterised by and premised upon sexual indifference. Because of this investment, while law makers might say they intend to reform the law with statutes consciously purporting to enact reform, and practice initiatives pledged to support it, in fact the various arms of the legal system have an interest in maintaining the status quo in which men enjoy mostly unfettered access to women’s bodies.

While purporting to disavow sexist prejudice on one hand, on the other, law makes no ultimate concession to woman’s unique sexuate difference. For this reason, it continues to enable the conditions that support the full flourishing of ‘attitudes’ that prevent the recognition of the crime of rape.  I argue that the law is complicit in its own failure because it is structurally invested, for its own survival and coherence, in the exclusion and erasure of woman’s voice, which represents the possibility of a plural form of being and thinking and is thus a fundamental challenge to the legitimacy of law.

What do I mean by this? I argue that the conceptual framework that underpins most contemporary rape law is one of sexual indifference that erases woman as subject in favour of a masculine legal subject.  The only way that woman can become coherent before the law is to assume a position in respect of that masculine subject as double, opposite or complement.[3]  This makes articulating the gendered harm of rape to law very difficult.

The refusal to acknowledge woman as a unique sexuate subject in her own right seeps through the text of the law to the trial space and is particularly noticeable in the rape trial. I argue that legal discourse is premised upon a paradox which requires, first, a symbolic matricide, and second also constantly relies on women’s bodies for the reproduction of that discourse.  This simultaneous erasure and evocation of women can be seen throughout the myths that form the foundation of the Western imaginary, the founding of the city state, as well as the modern legal system.

A word on methodology is important here. My work is supported by a psychoanalytic framework that is historically situated. I argue that there is a link between myth and practice in law over some 3,000 years. The discussion attempts to think-through sexual difference and rape law with reference to mythology, legal history, legal philosophy, theology, forensic linguistic and discourse analyses in rape trials, alongside contemporary academic feminist, critical and sociological literature. In my view, such a ‘multi-disciplinary’ approach is necessary if feminist and legal scholars more generally are to grasp what rape means and why legal responses to it continue to flounder.

What are the implications of my analysis for rape law? Well they are not that we should abandon our struggles with law in the present or cease demanding the state meaningfully commit to the prevention of rape.  But I do suggest that it is important to recognise that work on reforming the rape trial process is but one feminist task of many.  In such a reading we diversify our approach to legal and political analysis, informed always by the real effects on the lives of those subject to legal norms, while conscious of the cost of putting too much stock in the hope that law will save us from ourselves.  Legal scholars would do well to have this critical method more frequently in mind by acknowledging the limits of law when it comes to social injustice.
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[1] Yvette Russell ‘Woman’s Voice/Law’s Logos: The Rape Trial and the Limits of Liberal Reform’ Australian Feminist Law Journal 42(2) (2016): 273-296.

[2] See further, Joanne Conaghan and Yvette Russell, ‘Rape Myths, Law, and Feminist Research: “Myths About Myths”?’ Feminist Legal Studies 22(1) (2014): 25-48.

[3] See further, Yvette Russell, ‘Thinking sexual difference through the law of rape.’ Law and Critique 24(3) (2013): 255-275.

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