Failing to See the Wood for the Trees: Chronic Sexual Violation and Criminal Law

Date01 December 2020
Published date01 December 2020
DOI10.1177/0022018320976414
Subject MatterArticles
CLJ976414 573..595 Article
The Journal of Criminal Law
2020, Vol. 84(6) 573–595
Failing to See the Wood for
ª The Author(s) 2020
the Trees: Chronic Sexual
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Violation and Criminal Law
DOI: 10.1177/0022018320976414
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Tanya Palmer
University of Sussex, UK
Abstract
This article argues that sexual violation can take both ‘chronic’ and ‘acute’ forms. The latter,
encapsulated by the offences of rape and sexual assault, refers to a discrete incident in which a
victim’s sexual autonomy is violated. By contrast, the article articulates an original concept of
‘chronic sexual violation’, in which the victim’s autonomy is gradually eroded over a longer
period of time, for example in an abusive relationship. In such a case it may be difficult to
identify specific sexual encounters as non-consensual, and yet the victim is left with little or no
control over whether and on what terms they engage in sexual activity. This conceptualisation
builds on Evan Stark’s theory of coercive control, and is grounded in survivor accounts of the
lived experience of sexual violation within ongoing relationships drawn from existing studies of
abusive relationships, my own empirical interview data, and case law. The article contends that
the limitations of law and policy responses to sexual violation within relationships can be partly
explained by the illegibility of chronic sexual violation within a legal framework premised on the
notion that a crime is a discrete incident. The concept of chronic sexual violation offers a way
forward for crafting legal responses to this specific and pervasive form of harm, while resisting
hierarchical constructions of sexual violation within intimate relationships as less serious than
‘real rape’.
Keywords
Rape, chronic sexual violation, sex offences, coercive control, domestic abuse, grooming,
F v DPP, course of conduct crimes
Introduction
In this article I argue that sexual violation can take both chronic and acute forms, and that while the
former is relatively well understood, theory and law have been slow to recognise the latter and have done
so only in a limited way. I begin by outlining acute sexual violation as the framework which dominates
Corresponding author:
Tanya Palmer, Lecturer in Law, School of Law, Politics and Sociology, University of Sussex, Brighton, BN1 9QE, UK.
E-mail: T.Palmer@sussex.ac.uk

574
The Journal of Criminal Law 84(6)
social and legal understandings of sexual violence. This framework marginalises more diffuse, ongoing
processes of sexual violation common to abusive intimate relationships as well as a range of other
contexts. However, as I explore below, there is a tension between efforts to articulate the distinctiveness
of these experiences without casting sexual violation by partners as less serious than ‘real rape’. My
answer to this dilemma is to articulate an original concept of ‘chronic sexual violation’, envisaged as
different from, but no less serious than, acute sexual violation. I use coercive controlling relationships as
a case study through which to develop this concept, building on Stark’s theory of coercive control,1 and
grounding the concept in an analysis of accounts of intimate partner sexual violence drawn from the
extant literature, my own empirical research and relevant case law. While my initial focus is on partners,
a key argument is that chronic sexual violation cuts across a range of contexts, and I identify various
examples throughout. In the final section I analyse several recent legal developments in the sphere of
domestic and sexual violence, arguing that these demonstrate an embryonic recognition of chronic
sexual violation which is hampered by the traditional construction of criminal liability centring on a
single, discrete act of wrongdoing.
Rape as a Crime of Acute Sexual Violation
Historically, rape has been both socially and legally constructed as a crime of acute sexual violation. The
stereotypical image of rape involves a one off attack by a man who is a stranger to the female victim, in
an outside location, using a weapon and/or a level of brutal violence beyond that inherent in the act of
non-consensual penetration itself, which is resisted by the victim to the utmost.2 In the three decades
since Susan Estrich articulated this stereotype of the ‘real rape’ and the way it operates as an obstacle to
legal recognition of other rape experiences—particularly date and acquaintance rape—the stereotype has
been the subject of considerable scrutiny and challenge.3 Research has demonstrated that rape is most
commonly perpetrated by men known to the victim, particularly partners and ex-partners,4 that non-
consensual penetration does not necessarily involve the use of physical force or injury,5 and that it is
common for victims not to fight back, either because they freeze in fright or because they submit in order
to avoid more serious injury or death.6 Courts and legislatures in a number of jurisdictions have also
responded to criticism of the ‘real rape’ stereotype by expanding legal definitions of rape to incorporate
male and non-binary victims, rape within marriage, and to remove requirements of physical force.7
One aspect of the stereotypical rape that has not been explicitly addressed or subject to this level of
scrutiny is the assumption that rape constitutes an acute form of sexual violation. In using this term I
draw on medical understandings of an acute illness, symptom etc as being of rapid onset and short
duration, an episode of crisis in which the patient is in serious and immediate danger, as well as more
general uses of ‘acute’ to refer to a situation that is severe, intense and urgent. Thus when I refer to acute
1. Evan Stark, Coercive Control: How Men Entrap Women in Personal Life (OUP, New York 2009).
2. Susan Estrich, Real Rape (Harvard University Press, Cambridge 1988).
3. See, eg, Liz Kelly, Jo Lovett and Linda Regan, A Gap or a Chasm?: Attrition in Reported Rape Cases (Home Office Research,
Development and Statistics Directorate, London 2005); Jennifer Temkin and Barbara Krah´e, Sexual Assault and the Justice
Gap: A Question of Attitude (Hart Publishing, Oxford 2008); Miranda Horvath and Jennifer Brown (eds), Rape: Challenging
Contemporary Thinking (Routledge, Abingdon 2009); Louise Ellison and Vanessa E Munro, ‘Better the Devil You Know?
“Real Rape” Stereotypes and the Relevance of a Previous Relationship in (Mock) Juror Deliberations’ (2013) 17 E&P 299;
Hannah Bows and Nicole Westmarland, ‘Rape of Older People in the United Kingdom: Challenging the “Real-Rape” Ste-
reotype’ (2017) 57 Brit J Criminol 1.
4. Office for National Statistics, ‘Sexual Offences in England and Wales: Year Ending March 2017’ (8 February 2018) Newport.
5. Ibid; Janice Du Mont and Deborah White, The Uses and Impacts of Medico-Legal Evidence in Sexual Assault Cases: A Global
Review (World Health Organisation, Geneva 2007).
6. Jessica Woodhams and others, ‘Behavior Displayed by Female Victims during Rapes Committed by Lone and Multiple
Perpetrators’ (2012) 18 Psychol. Public Policy Law 415.
7. See Clare McGlynn and Vanessa E Munro (eds), Rethinking Rape Law: International and Comparative Perspectives
(Routledge-Cavendish, Abingdon 2011) for an overview of recent developments in a range of jurisdictions.

Palmer
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sexual violation I mean an identifiable event or encounter in which one person’s sexual autonomy is
violated by another, as in the crime of rape. As I explore further below, an acute incident can be
contrasted with a chronic condition, which is long term and/or continuous. An acute incident need not
be a one-off. Just as a patient can experience multiple episodes of acute illness, a person can experience
multiple acute violations of sexual autonomy throughout their lifetime. Indeed it is not uncommon for an
individual to be raped multiple times in their life either by the same perpetrator or by multiple different
perpetrators.8 My central argument is that there is an alternative form of sexual violation—chronic
sexual violation—in which the victim suffers a long term erosion of sexual autonomy, which can be
distinguished from a series of acute violations.
The idea of a rape as an acute incident is fundamental to the way rape is defined. Rape in contem-
porary English law is constructed as a specific type of sexual assault. Assault crimes protect bodily
autonomy via the prohibition of non-consensual bodily contact. Thus the starting point for investigating
and prosecuting assault is the identification of a specific instance of physical contact (or the threat
thereof)—the relevant form of physical contact being penile penetration in the case of rape. This act can
then be evaluated in terms of the circumstances in which it took place (was it consensual?) and the
defendant’s state of mind (did D intend the penetration? Did D reasonably believe the complainant was
consenting?) Assault crimes, including rape, are framed as discrete incidents and are not designed to
address ongoing patterns of violence or abuse, or cumulative harms.9
The idea of rape as an acute form of sexual violation is further strengthened by the way that consent
has been analysed and applied. Under s 74 of the Sexual Offences Act 2003 (SOA), ‘a person consents if
he agrees by choice, and has the freedom and capacity to make that choice’. This potentially allows for a
wide range of circumstances to undermine an apparent agreement. However, much of the legal and
philosophical literature exploring...

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