Abstract
Having addressed one of the least discussed aspects of trial in the previous chapter, I now turn to one of the most widely discussed: rape myths. Beliefs about what rape is, how it happens, who is involved, and what happens afterwards are often used to explain poor responses to sexual violence internationally (Stern, 2010). Rape myths are therefore the most commonly examined aspect of rape trials, both in the UK and elsewhere, yet there remain some areas of comparative neglect. For example, why are these myths so pervasive at trial despite training to tackle stereotypical beliefs? Hudson (2002) argued that rape myths were persistent because they fit with legal logic, but little is known about how this occurs. This chapter therefore examines the use of and resistance to rape myths in relation to underlying legal cultures. I argue that women’s normal and rational responses to rape are repackaged within trial as untrue because they are ‘abnormal’ and ‘irrational’. To demonstrate this, I will draw upon my observations of rape trials, as well as Smart’s (1989) and Lees’ (1997) critiques of gendered approaches to establishing truth. Ultimately, then, rape myths are resistant to policy intervention because they are reinforced by a legal cultural scaffolding that genders the notion of truth and undermines survivors’ experiences. This means that it is not enough to tinker at the edges of criminal justice reform, although there are some shorter term recommendations for improving survivors’ experiences, because fundamental change is required before justice for rape survivors is possible.
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Notes
- 1.
The literature on rape myth acceptance is too extensive to fully discuss here, but van der Bruggen and Grubb (2014) provide a useful review of the evidence.
- 2.
This does not mean that male or non-binary survivors are immune to myths, but rather that myths tend to focus on traditional gender norms.
- 3.
While this research focused on English and Welsh legal professionals, a parallel study conducted by the authors found similar rape myths in German law students (Krahé, Temkin, & Bieneck, 2008).
- 4.
However, some mock juries penalise survivors for being too coherent, so there is a narrow margin of ‘appropriate’ consistency (Munro & Kelly , 2009).
- 5.
Corroboration warnings were a requirement for judges to warn the jury it was dangerous to convict the accused where there was no ‘independent’ evidence, for example, where the case was based solely on the survivor’s testimony (Criminal Justice & Public Order Act 1993).
- 6.
The main response to rape myths has been that judges must now be ‘ticketed’ in order to try rape cases, meaning they receive education on the realities behind rape myths, and prosecution barristers receive similar compulsory training. This inadequacy of this will be discussed throughout this chapter.
- 7.
In fact, Waterhouse et al. (2016) did not find a single example of ‘real rape’ in their analysis of 400 police files. Instead, they found that over 70 per cent of reports to police involved someone known to the survivor, in a residence, and with no physical injuries.
- 8.
The idea that women who invite men in for coffee are indicating interest in sex and so any subsequent sexual contact is automatically consensual.
- 9.
As part of policy attempts to counter stereotypes in rape trials, judicial directions called ‘myth-busters ’ can now be used to highlight the diverse effects of sexual victimisation for the jury (see Judicial Studies Board, 2010 for examples). Although judges did not give the exact, full directions listed in the Judicial Studies Board book, they did summarise the essence of the directions in ten trials.
- 10.
This is not to say that ignorance or problematic attitudes have been eradicated among legal professionals. The judge in T14 was the clearest example of this, regularly interrupting the survivor’s evidence in order to make stereotyping comments. When the findings of the research were shown to some of the barristers involved, they reflected these concerns and noted that some judges continue to hold outdated beliefs. Interestingly, the judge who made the most stereotypical comments was also the one who most extensively used ‘myth-buster ’ comments, showing that using ‘myth-busters ’ did not automatically mean legal personnel had a good understanding of sexual violence. It is an achievement that the guidelines were used even when they did not appear to reflect the judge’s beliefs, but it remains important to address stereotypes held by judges where present.
- 11.
- 12.
While not all jurors will have the same beliefs about ‘rational ’ behaviour, it is likely that they will be aware of the dominant discourses around this issue.
- 13.
The Northumbria court observer panel also noted that ‘myth-buster’ judicial directions were used in used in most, but not all, trials (Durham et al ., 2016).
- 14.
- 15.
This would not be limited to the impact of being a woman, but would also allow an analysis of how traditional gender norms impact on male and non-binary survivors. It would also need to provide an intersectional analysis that recognises the impact of other factors such as ethnicity , disability, and perceived ‘social class ’.
- 16.
In the first pilot court, the conviction rate even rose to 83 per cent (Department of Justice, 2013).
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Smith, O. (2018). Rape Myths and ‘Rational’ Ideals in Sex Offence Trials. In: Rape Trials in England and Wales. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-75674-5_3
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