Better the Devil You Know? ‘Real Rape’ Stereotypes and the Relevance of a Previous Relationship in (Mock) Juror Deliberations
| Author | Louise Ellison,Vanessa E. Munro |
| DOI | 10.1350/ijep.2013.17.4.433 |
| Published date | 01 October 2013 |
| Date | 01 October 2013 |
| Subject Matter | Article |
Better the devil you
know? ‘Real rape’
stereotypes and the
relevance of a previous
relationship in (mock)
juror deliberations
Louise Ellison* and
Professor of Law at the University of Leeds
Vanessa E. Munro**
Professor of Socio-Legal Studies at the University of Nottingham
Abstract It has become commonplace in commentaries on the ‘justice gap’ in
rape cases to lament the existence of a ‘real rape’ stereotype which prevents
assaults involving known assailants, which take place in private spaces and
perhaps without the use of additional physical violence, from being accepted as
genuine and/or serious violations, whether by police, prosecutors or jurors. In
previous work, we have urged caution lest too much reliance on the ‘real rape’
stereotype disguise the complexities at play in framing jurors’ responses to rape
cases involving acquaintances. In this article, we take these reflections further,
drawing on a recent study conducted by the authors in which 160 members of
the public were recruited and, having observed one of four mini trial
reconstructions involving an alleged rape by the complainant’s ex-partner, were
divided into juries and asked to deliberate towards a verdict. Though the vast
majority of our jurors were receptive, in principle, to the idea that a woman
could be raped by a man with whom she had previously had a relationship—and
*
Email: L.E.Ellison@leeds.ac.uk.
** Email: vanessa.monroe@nottingham.ac.uk.
doi:10.1350/ijep.2013.17.4.433
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indeed often noted the statistical prevalence of such assaults—participants
continued to consider these cases to be ‘less clear-cut’, ‘more delicate’ and ‘a lot
harder’ than rapes involving a stranger. In line with our previous findings in the
context of acquaintance rapes, the fact of a familiarity between the trial parties
created an opportunity for jurors to invoke and rely upon engrained expecta-
tions regarding resistance and sexual (mis)communication, which—when
combined with persuasive strategies that interpreted the standard of proof
as requiring nothing short of absolute certainty—mitigated against the
likelihood of returning a guilty verdict. Significantly, though, as we will
illustrate in this article, the fact of a previous intimate relationship interacted
with these expectations in heightened and often quite specific ways to create
new tropes.
Keywords Rape; Jury; Credibility; Sex; Relationship
ictimisation studies have, for some time, indicated that women are
most likely to experience sexual assault at the hands of husbands,
V partnersormenwithwhomtheyhavepreviouslyhadsomedegreeof
intimacy or acquaintanceship.1 Despite this, contemporary commentators have
commonly maintained—and lamented the fact that—penal and popular under-
standings of what ‘real rape’ looks like continue to be dominated by the imagery
of a sudden, surprise attack by an unknown assailant. To the extent that rapes
committed by men known to the complainant deviate from this ‘real rape’
1
Based on aggregated data from the ‘Crime Survey for England and Wales’ in 2009/10, 2010/11 and
2011/12, a recent report published by the Ministry of Justice, Home Office and Office of National
Statistics found that around 90 per cent of victims of the most serious sexual offences in the
previous year knew the perpetrator: Ministry of Justice, Home Office and Office of National
Statistics, An Overview of Sexual Offending in England and Wales, Statistics Bulletin (Ministry of Justice:
London, 2013). In a study that tracked 500 recorded rapes, Harris and Grace found that rapes
committed by a person unknown to the victim formed only 12 per cent, whilst those committed by
acquaintances or intimates accounted for 45 per cent and 43 per cent respectively: J. Harris and S.
Grace, A Question of Evidence? Investigating and Prosecuting Rape in the 1990s, Home Office Research
Study 196 (HMSO: London, 1999). The 2000 British Crime Survey found that women are most likely
to be sexually attacked by men they know in some way, most often partners (32 per cent) or
acquaintances (22 per cent). ‘Current partners’ (at the time of the attack) were responsible for 45
per cent of rapes reported to the survey while ‘strangers’ were only responsible for 8 per cent of
rapes reported to the survey: A. Myhill and J. Allen, Rape and Sexual Assault of Women: The Extent and
Nature of the Problem, Home Office Research Study 237 (2002). A Home Office study which examined
attrition in eight police forces found that stranger rapes accounted for 14 per cent of all crime
cases. Just over one-quarter of offences had been committed by acquaintances of the victim, while
just over one-fifth involved assaults by partners or ex-partners: A. Feist, J. Ashe, J. Lawrence, D.
McPhee and R. Wilson, Investigating and Detecting Recorded Offences of Rape, Home Office Online
Reporter 1807 (2007). More recently, a study of allegations of rape reported to the police in London
found that 24 per cent of victims were in or formerly in an intimate relationship with their alleged
assailant, 39 per cent of victims reported being raped by an acquaintance, and 26 per cent by a
stranger: B. Stanko and E. Williams, ‘Reviewing Rape and Rape Allegations in London: What Are
the Vulnerabilities of Victims who Report to the Police?’ in M. Horvath and J. Brown (eds.), Rape:
Challenging Contemporary Thinking (Willan: Cullompton, 2009).
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stereotype—whether by taking place at the complainant’s home rather than in a
public location (park, dark alley, etc.), by generating different forms or levels
of physical resistance or injury by the complainant, or by involving a defendant
who was previously known and trusted—it has been argued by some critics that
they are less likely to be accepted as genuine, and so less likely to be investigated
by the police,2 prosecuted through the criminal justice system or result in a
conviction.3
Lending further fuel to these concerns, moreover, is a body of social psycho-
logical research which claims that women assaulted by acquaintances are more
likely to be blamed by third party observers (including jurors) than women who
are raped by strangers, especially where there is a history of prior consensual
sexual intimacy.4 Such victim-blaming endorses female precipitation beliefs,
which assert that women bring sexual assault upon themselves as a consequence
of their behaviour and/or defective communication skills, and will often
operate, researchers maintain, to absolve the perpetrator of responsibility for
2
Smith found that police (in two London boroughs) were more likely to record complaints if they
involved rape committed by strangers, if additional violence and weapons were used, if the victim
suffered additional injuries, if there had been no contact of a social nature between the victim and
the offender immediately prior to the offence: L. Smith, Concerns About Rape, Home Office Research
Study 106 (Home Office: London, 1989).
3
In Harris and Grace’s study (above n. 1), it was established that the cases of rape which
involved an acquaintance were most likely to be no-crimed, whilst cases involving intimates
were most likely to be NFA-ed or discontinued by the Crown Prosecution Service. A Home
Office study in 1992 found that those cases that typically resulted in a conviction for rape
involved young, single women attacked by strangers who were also physically injured in the
attack: S. Grace, C. Lloyd and L. Smith, Rape: From Recording to Conviction (Home Office Research
Unit: London, 1992). Similarly, Gregory and Lees found that the attrition rate was substantially
higher for cases in which the suspect and the complainant had some prior acquaintance or
intimacy, than in cases of attacks by strangers: S. Gregory and S. Lees, ‘Attrition in Rape and
Sexual Assault Cases’ (1996) 36 British Journal of Criminology 1. Meanwhile, cross-nationally, Daly
and Bourhous suggest that the importance of the relationship between complainant and
alleged offender in police and court outcomes has diminished over time: K. Daly and B.
Bourhous, ‘Rape Attrition in the Legal Process: A Comparative Analysis of Five Countries’ (2010)
Crime and Justice 565.
4
It should be noted that while some of these studies purport to provide evidence of
‘victim-blaming’, they are based on questionnaire surveys which invite respondents to consider
whether a victim was totally, partly or not at all ‘responsible’ for an assault (rather than ‘to blame’).
See, e.g., Amnesty International UK, Sexual Assault Research Summary Report (2005), available at
who agree that a victim is partly responsible for an assault (e.g. because she was drunk) may
indicate a belief that the victim was culpable (or blameworthy) to some degree. However, this
response may alternatively indicate a more benign belief that a victim’s behaviour had enhanced
her vulnerability to being raped.
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the attack.5 Drawing upon both bodies of work, Temkin and Krahé have recently
argued that the fact that the complainant had a previous sexual relationship
with the defendant often acts ‘as a cue that indicates her precipitating role’,6
contributing to an overall situation in which, since only a small proportion of
rapes meet the criteria of the ‘real rape’ stereotype, many sexually assaulted
women are
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