2. EXHIBITING THE HYMEN: THE BLANK PAGE BETWEEN LAW AND LITERATURE
| DOI | https://doi.org/10.1016/S1059-4337(04)34002-0 |
| Pages | 33-52 |
| Date | 30 December 2004 |
| Published date | 30 December 2004 |
| Author | Nina Philadelphoff-Puren |
2. EXHIBITING THE HYMEN: THE
BLANK PAGE BETWEEN LAW AND
LITERATURE
Nina Philadelphoff-Puren
LAW, LITERATURE, STRATEGY
The feminist critique of rape has been a vast and impressive exercise of
interpretative activity: it has gripped existing concepts, practices and discourses
and subjected them to reinterpretation and transformation. It has been trenchant,
assiduous and generative. It has created new legal definitions of rape and
modified the evidentiary requirements that define its borders; it has developed
new procedural mechanisms and codes of speech during trials; it has multiplied
ethico-political interpretations of sexual violence and excavated previously
unauthorised forms of social knowledge. Most specifically, it has created new
evaluations of rape in the service of a particular form of life; that is, one which
cultivates the capacity of women to maximise their own powers of speech and
desire.
In the context of law, the chief target of feminist critique has been those legal
tactics which construct female complainants as a particular class of subject: that is,
asasubjectwhocannotproducetrustworthyspeech.Historically,these legal tactics
have included the admission of evidence about a complainant’s sexual history
(generally to undermine her testimony) and the requirement that judges warn
juries to be careful when convicting the accused on the uncorroborated evidence
of a woman. Such matters have been the subject of substantial feminist reform at
the level of both legislation and procedure. Recent research in Australia, however,
An Aesthetics of Law and Culture: Texts,Images, Screens
Studies in Law, Politics, and Society,Volume 34, 33–52
© 2004 Published by Elsevier Ltd.
ISSN: 1059-4337/doi:10.1016/S1059-4337(04)34002-0
33
34 NINA PHILADELPHOFF-PUREN
shows that the force of these reforms is often vanquished by the practices of legal
officers in the courts.1For example, legislation imposed to prevent the defence
raising the sexual history of the complainant in cases where it is not relevant is
often ignored by judges who are entitled to exercise their discretion when such
matters arise (Heenan & McKelvie, 1996, p. 154).2There is other evidence that
some legal officers remain attached to now discredited understandings of consent
and its communication and persist in the belief that some women say “no” when
they really mean “yes” (Heenan & McKelvie, 1996, p. 317). More generally, the
notion that women as a class produce untruthful speech is cultivatedby a continued
defence predilection for constructing women as liars during cross-examination
(Bargen, 1996, p. 51). Reflecting on this matter, one magistrate remarked that
this was a particularly troubling aspect of rape trials. He noted that witnesses
in other kinds of trials might be pressed about their recall, or told that they
might be mistaken, but are not so vehemently and relentlessly told that they must
be lying.
That’s an affront to continually haveto reassert your honesty. I think people forget that it’s not
the type of thing you take lightly,when someone says you’re lying (Heenan & McKelvie, 1996,
p. 198).
Generally, the reasons offered to account for the failings of reform remain vague
and undefined. Feminist legal scholarship tends to deploy terms like “stereotype,”
“judicial sexism” and “myths of female sexuality” which are presented as
ubiquitous yet amorphous obstacles to the project of reform, located somewhere
in “society” and more particularly in “attitudes.”3Whenthe problem is formulated
in this manner, then the conventionalresponse is to argue that we must redress and
refute these mistaken representations with more adequate information. Programs
in which judges are taken through a course of gender awareness in order to expand
their frame of reference when writing judgments are an obvious example of such
a move.
This mode of critique relies on a specific model of the law,the subject and power.
That is, the law is understood as a potentially neutral institution that is capable of
being responsive to the call of groups historically disenfranchised by the law,such
as women. Legal officers such as barristers and judges will respond adequately to
this call when presented with sufficient facts about the conditions of their lives.
This view evades addressing the desire that inheres in every interpretation – in
this context, it evades the specifically legal desire to manage and control forms
of life – such as sexual difference – in particular ways (Dumeresq, 1981). From
this perspective, the legal production of a female subject who cannot produce
legitimate testimony may not be the result of an error but rather the effect of a
positive juridical activity. To understand this effect as correctable with the right
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