Rape Justice

Beyond the Criminal Law

Nicola Henry, Anastasia Powell, Asher Flynn, Nicola Henry, Anastasia Powell, Asher Flynn, Nicola Henry, Anastasia Powell, Asher Flynn

• Publisher: Palgrave Macmillan
• Year: 2015
• ISBN:
  9781137476159
• Topic: Politics & International Relations
• Subtopic: Social Policy
• Index: Politics & International Relations

This book explores the burgeoning interest in alternative and innovative justice responses to sexual violence both within and outside the legal system. It explores the limits of criminal law for achieving 'rape justice' and highlights possibilities for expanding how we think about justice in the aftermath of sexual violence.

1

The Promise and Paradox of Justice

Rape Justice Beyond the Criminal Law

Nicola Henry, Asher Flynn and Anastasia Powell

Introduction

Justice for victim-survivors of sexual violence is marred by a series of intersecting paradoxes, predicaments and contradictions. On the one hand, sexual violence is commonly understood as a ‘trauma’ under increasingly medicalised and individualised psychological frameworks (see Gavey & Schmidt, 2011). Rape is often rendered incomprehensible and taboo to others; seen as the ‘worst of crimes’, ‘an assault on the soul’ (Sharratt & Kaschak, 2013) or ‘the ultimate violation’ (Rowland, 1985). Yet on the other hand, victim-blaming cultural attitudes, stereotypes and myths continue to normalise sexual violence and trivialise victim experiences (Heenan & Murray, 2006), particularly when the perpetrator is a person known to the victim and/or when the victim is in an intoxicated state (Lynch et al., 2013; Richardson & Campbell, 1982). Indeed, cultural, structural, institutional and social values about sexual violence have been identified as part of a phenomenon which is commonly yet controversially referred to as ‘rape culture’, defined as ‘a complex set of beliefs that encourage male sexual aggression and supports violence against women’ (Buchwald et al., 2005, p. xi; see also Brownmiller, 1975; Horvarth & Brown, 2009). Arguably an outcome of these prevailing forces – between the pathological trauma of rape and the minimisation and trivialisation of rape – is to contribute to the construction of a ‘spoiled identity’ (Gavey & Schmidt, 2011, p. 451) and a reinforcement of stranger rape as the prototype of ‘real rape’ (Estrich, 1987; Williams, 1984) – both a form of misrecognition and representational injustice (Fraser, 1998).

Scholars, activists and practitioners continue to decry the perpetual silence surrounding sexual violence in public discourse and the dismal failure of domestic and international legal courts to adequately prosecute rape, secure convictions and ensure proportionate sentences (see e.g. Mardorossian, 2002). Yet this critique of silence can be juxtaposed to the unprecedented global attention to sexual violence that has amassed in more recent times due to a number of events, including the gang rape and murder of a 23-year-old physiotherapy student in South Delhi, India, in 2012; the rape and murder of 29-year-old Irish woman and ABC employee Jill Meagher in Melbourne, Australia, in 2012; the 2014 Global Summit to End Sexual Violence in Conflict, co-chaired by UK Foreign Secretary William Hague and Special Envoy for the UN High Commissioner for Refugees, Angelina Jolie; and the dramatic profusion of online anti-rape websites offering victim-survivors a space to tell their stories to global audiences (see Powell, 2015; Rentschler, 2014). Alongside populist and intergovernmental attention, scholars, activists and victim-survivors have extensively written and campaigned about sexual violence in both peacetime and wartime contexts, culminating, amongst other things, in the recognition of rape as a crime against humanity, a war crime and a crime of genocide under international law. Yet conversely, others have questioned the desirability of fixating on rape as the ‘worst of crimes’, arguing that such rhetoric can be used to advance political interests and ideologies, and to present women as perpetually powerless, vulnerable, ‘sexed’ and in need of protection by a heroic band of ‘international saviours’ (Halley, 2008; Marcus, 1992; see also Henry, 2014).

Moreover, feminist academics and practitioners are divided over the extent to which ‘gender inequality should be framed as one factor among many in prevention work, or as the central, contributing factor underlying sexual violence in our society’ (Powell & Henry, 2014, p. 11, original emphasis). The largest North American anti-sexual violence organisation RAINN (Rape, Abuse & Incest National Network), for example, expressed concern about the ‘unfortunate trend towards blaming “rape culture” for the extensive problem of sexual violence on [college] campuses’. They noted that:

While it is helpful to point out the systemic barriers to addressing the problem, it is important to not lose sight of the simple fact: Rape is caused not by cultural factors but by the conscious decisions, of a small percentage of the community, to commit a violent crime.

(Emphasis added)

The issue is whether sexual violence and the diverse justice responses to it should be understood as an individual or collective problem. In other words, should justice mechanisms be directed towards ensuring individual culpability and responsibility, or should energy instead be invested in tackling deep-seated gender inequality as one of the underlying causes of sexual violence?

These aforementioned paradoxes are also reflected in debates about the efficacy of rape law reform. Since the latter part of the 20th century, a raft of legislative and procedural changes to rape law across jurisdictions globally have included innovative procedures and measures to address the ‘justice gap’ (Temkin & Krahé, 2008), which has come to characterise the prosecution of sexual offences in diverse criminal justice systems (see McGlynn & Munro, 2010). These reforms include, inter alia, changes to the definition of rape and sexual consent; amendments to jury directions; the abolishment of the requirement for witness corroboration; restrictions on the admission of evidence at trial about a complainant’s sexual history; protective measures for vulnerable witnesses; the establishment of witness and victim support services with specialist expertise on sexual violence; various types of legal representation for victims; reparations, compensation, restitution and rehabilitation; specialist courts; and the criminalisation of marital rape. However, although recognised as progressive measures, many scholars, legal professionals and activists argue that the impact of rape law reform has been negligible, with little change to reporting, prosecution and conviction rates, and little improvement in procedural justice for both victims and accused persons (Daly, 2011; Larcombe, 2011; Stubbs, 2003). Indeed, despite the global momentum surrounding sexual violence, and the various feminist academic debates about the impacts and hierarchies of sexual violence in diverse contexts, there is little doubt that victim-survivors continue to face insurmountable obstacles in seeking justice through the criminal law in the aftermath of sexual violence.

The above-mentioned intersecting paradoxes and predicaments underscore the discursive construction of rape or sexual violence as simultaneously inevitable yet unspeakable (Henry, 2011). These paradoxes, we contend, are ultimately concerned with the complex notion of ‘justice’, leading us to ask: What constitutes justice for victim-survivors of sexual violence? Is justice recognition of a wrong? Is justice the primary prevention of that wrong? Should justice responses focus on individual criminal responsibility, or instead tackle deep-seated, underlying structural inequalities? Or is justice something far more ephemeral or nebulous to victim-survivors of these harms? To date, much of the excellent work on justice for sexual violence victim-survivors has been focused foremost on criminal justice systems in both domestic and international contexts (see McGlynn & Munro, 2010; Temkin & Krahé, 2008; Westmarland & Gangoli, 2011). Adding to this body of literature, this current collection critically examines the diverse assemblage of justice responses to sexual violence, encompassing criminal law, civil law, restorative justice mechanisms, international human rights law, civil society initiatives, customary law and online anti-rape activism. The book attempts to provide a reconceptualisation of justice both within and beyond the criminal law and to insist, as Kathleen Daly (2011, p. 2) does, that ‘[r]ather than one justice pathway for victim/survivors, a menu of options and varied pathways is required’. The collection is thus situated within a burgeoning interest in alternative and innovative justice responses to sexual violence both within and outside of the legal system (see e.g. Daly, 2011; Koss, 2010; McGlynn, 2011; McGlynn et al., 2012; Naylor, 2010). It addresses key debates regarding the false dichotomy between restorative and retributive justice, as well as the desirability and efficacy of legal redress for sexual violence. The book as a whole moves beyond a narrow treatment of justice through the criminal law, and instead focuses on different institutional, individualised and community-based mechanisms that are constantly changing in an age of expanding digital communication, information saturation, new forms of social activism and shifting ‘imagined communities’ (see also McGlynn, 2011).

In this chapter, we argue that these alternative justice sites, measures and mechanisms have potential empowering effects for individuals and groups, such as giving victim-survivors of sexual violence greater control over their narratives, challenging gendered rape myths and fostering collective, solidarity-building consensus. More broadly, creative, inventive or subaltern measures can serve to challenge the very idea that justice can and should be sought exclusively through formal legal channels. The first section of this chapter examines the philosophical and practical problematic notion of ‘justice’ and the array of justice mechanisms for responding to multiple forms of sexual violence in contemporary contexts. The second section provides an overview of the collection as a whole, focusing on the key themes of justice, context and moving beyond the realm of law.

The problem of justice: Beyond criminal law

Justice, according to many influential philosophers, is sacrosanct, compelling and inviolable: a ‘word of magic evocations’ (Cahn, 1964, p. 13). John Rawls (1976) described justice as the ‘first virtue’, but noted that what is just and unjust is perpetually in dispute. Justice prompts creative forms of energy; it is a power that both drives and impassions – but it remains perpetually elusive and impossible to define. The eternal, alluring expectation of justice as ‘the basis for sovereignty, the source of political authority’ keeps us, as subjects of law, always ‘obedient, patient and hopeful’ (Martel, 2011, pp. 158–159). As Jacques Derrida (1990) acutely notes, we are always waiting for justice. Justice is, Derrida claims, the experience of the impossible; it is ‘always to come’.

Law remains the dominant frame for thinking about justice, but the law–justice relationship is characterised by a set of paradoxes. While it is true that victims of crime often turn to law as the normative remedy for injury, law at times can engender oppressive and deleterious effects, serving as a tool of further injustice. Relatedly, although law has the power to pronounce judgement and to construct the truth about an event, it can also silence and/or suppress other narratives and ‘truths’ (Finley, 1989). Law can empower individuals and groups in asserting their rights, providing a benchmark from which to check the abuse of interpersonal, organisational and state power, but it can also be used by the powerful to exert more power. Law’s power is itself full of complexities and contingencies (Douzinas et al., 1994). Law, disguised as justice, may bring some satisfaction and other therapeutic gains to victim-survivors and the community more generally, but law can never fully erase the injury or long-term impacts of violence. Law ultimately promises, but fails to deliver, justice.

Despite the frustrations, mysteries and impossibilities of justice, law remains compellingly central to understandings of justice. This is particularly the case with criminal law. The criminal law, and the rituals of the justice system within which it operates, carries important symbolic meanings, as well as having practical effects that extend beyond the individuals directly involved, into the broader society (Murray & Powell, 2011). If, as Durkheim (1893) famously argued, criminal law and punishment is expressive of a society’s collective vengeance for the violation of a shared core value, then seeking justice through the criminal courts represents more than seeking accountability and punishment for an individual’s wrongdoing. Rather, criminal justice, when successful in terms of conviction and punishment for rape, represents society’s public acknowledgement not only of the harm, but also that it should not occur; that rape is fundamentally an outrage to our collective values. In short, criminal law is a fundamental means of both establishing and communicating normative standards of sexual conduct (Larcombe, 2014). As David Garland (1990, p. 67) suggests:

Rituals – including the rituals of criminal justice – are ceremonies, which, through the manipulation of emotion, prompt particular value commitments on the part of the participants and the audience and thus act as a kind of sentimental education, generating and regenerating a particular mentality and a particular sensibility.

It is perhaps a reflection of this core expressive function of the criminal law that for many victim-survivors, feminist scholars and activists, ‘justice’ in response to sexual violence has been pursued with specific reference to criminal convictions and carceral punishment (see Lewis et al., 2001; and for a critique, see Chapter 4). Nonetheless, there is growing acknowledgement that such measures and understandings of justice are considerably narrow (see Larcombe, 2011), and frequently fail to meet the varied justice needs of victim-survivors of sexual violence (Chapter 2). For example, feminist scholarship has long identified the criminal justice trial as analogous to a ‘second rape’ (Madigan & Gamble, 1989); an additional trauma endured by victim-survivors, rather than a process that offers either acknowledgement or healing. Furthermore, as Judith Herman (2005) notes, many of the processes of the criminal trial ‘ritual’ are antithetical to justice from the victim’s perspective. At a time when victim-survivors require the opportunity to be heard, believed and regain control over their narrative, the criminal trial frequently silences, doubts and disinherits victims and renders them to the role of mere ‘witnesses’ (Herman, 2005). In light of such critiques, it is important to problematise the domination of criminal law in the imaginative space of justice.

As demonstrated throughout the collection, alternative sites of justice are indicative of a shift away from both the law and the state as the remedy for social injury. They signal a shift towards justice as a ‘relational and contextual practice’, away from institutionalisation, individualisation and libertarianism (Brown, 1995, p. 6). Thus new global and civil society configurations create new opportunities for disenfranchised groups and towards subaltern justice discourses that are capable of contesting and resisting contemporary forms of power and domination.

Differing forms of justice that move beyond the criminal law include customary law; online and offline activism and consciousness-raising; truth and reconciliation commissions; civil remedies; memorials and other forms of commemorations; film, art and literature; reparations through compensation and restitution; public apologies; royal commissions; and other formalised independent investigations. These differing avenues offer alternative understandings, approaches and forms of justice, both formal and informal. To varying degrees, these avenues respond to the needs and contexts of individualised lived experiences of sexual violence victim-survivors, as well as seeking to respond to the broader societal contexts and collective expectations of justice. What these differing avenues, mechanisms and measures of attaining, achieving, providing, approaching and engaging with justice demonstrate is the complexity of justice, and importantly, that there is a need to move towards a more multivalent approach to justice that is not solely reliant upon the state or the criminal law as the adjudicator of wrongdoing, or the sole provider of justice.

As Nancy Fraser (1998) advocates, justice must be about both redistribution and recognition, and above all, about ‘parity of participation’ in social life. Drawing on Fraser’s justice model, we argue that redressing the misrecognition of the law of sexual violence not only requires changing the rules within law, to achieve this ‘parity of participation’, but it also requires an exploration of the emerging avenues outside of law – the ‘counterpublic spaces’ for seeking justice for sexual violence as both redistribution and recognition (Fraser, 1998). It is important to point out that these counterpublic spaces are not immune from deeply embedded cultural, socio-economic and racial hierarchies and there are dangers, limitations and potentials that must also be examined here too. However, we contend that although law continues to dominate the imaginative space of justice, there are possibilities for expanding how we think about justice in the aftermath of sexual violence. The vexed, complex and varied ideals of justice cannot be attained through one formal mechanism of acknowledging and respond...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• List of Tables
• Acknowledgements
• Notes on Contributors
• 1. The Promise and Paradox of Justice: Rape Justice Beyond the Criminal Law
• 2. A Fair Way to Go: Justice for Victim-Survivors of Sexual Violence
• 3. Sexual Violence and Justice: How and Why Context Matters
• 4. Reassessing the Place of Criminal Law Reform in the Struggle Against Sexual Violence: A Critique of the Critique of Carceral Feminism
• 5. When Yes Actually Means Yes: Confusing Messages and Criminalising Consent
• 6. Sexual Violence and Innovative Responses to Justice: Interrupting the ‘Recognisable’ Narrative
• 7. Retribution, Redress and the Harms of Rape: The Role of Tort Law
• 8. The European Court of Human Rights as a Mechanism of Justice for Rape Victims: Contributions and Limitations
• 9. Reforms, Customs and Resilience: Justice for Sexual and Gender-Based Violence in Liberia
• 10. The Pandemic of Conflict-Related Sexual Violence and the Political Economy of Gender Inequality
• 11. Combatting Violence Against Indigenous Women: Reconciliation as Decolonisation for Canada’s Stolen Sisters
• 12. The Law of the People: Civil Society Tribunals and Wartime Sexual Violence
• 13. Seeking Informal Justice Online: Vigilantism, Activism and Resisting a Rape Culture in Cyberspace
• Index