Gender ‘Hostility’, Rape, and the Hate Crime Paradigm
| Date | 01 July 2014 |
| Author | Jessica Tumath,Mark Austin Walters |
| Published date | 01 July 2014 |
| DOI | http://doi.org/10.1111/1468-2230.12079 |
Gender ‘Hostility’, Rape, and the Hate Crime Paradigm
Mark Austin Walters and Jessica Tumath*
This article examines whether crimes motivated by, or which demonstrate, gender ‘hostility’
should be included within the current framework of hate crime legislation in England and Wales.
The article uses the example of rape to explore the parallels (both conceptual and evidential)
between gender-motivated violence and other ‘archetypal’ forms of hate crime. It is asserted that
where there is clear evidence of gender hostility during the commission of an offence, a defendant
should be pursued in law additionally as a hate crime offender. In particular it is argued that by
focusing on the hate-motivation of many sexual violence offenders, the criminal justice system
can begin to move away from its current focus on the ‘sexual’ motivations of offenders and begin
to more effectively challenge the gendered prejudices that are frequently causal to such crimes.
Gendered violence1is a global phenomenon that continues to be both wide-
spread2and physically, emotionally and socially harmful to those who are
targeted.3The media coverage of the brutal rape and murder of a 23 year old
female student on a Delhi bus in 2012 caught the attention of the world’s media.4
While this case is just one in a long list of horrific incidents of violence directed
against women across the globe, it has led to an international debate about the
plight of sexually and physically victimised women. The public uproar caused by
India’s sexual violence ‘problem’ has since led to the amendment of laws aimed
at tackling sexual violence.5Disturbingly though, the young woman’s death
represents just the tip of what seems to be an ever expanding iceberg of violence
*School of Law, Politics and Sociology, University of Sussex. Our thanks go to Dr Alison Phipps, Dr
Hannah Mason-Bish, and Dr Marian Duggan for their very helpful comments on an earlier version of
this article. We also thank the reviewers for their responses to the draft version of this article.
1 The term ‘gendered violence’ is used throughout this article in order to emphasis the gendered
nature of much violence directed against women, while simultaneously acknowledging that
violence towards men can also be ‘gendered’. The article will also refer to ‘violence against
women’ (VAW), a term which feminist scholars have coined in order to convey the message that
violence is not gender-neutral (see A. K. Gill, and H. Mason-Bish, ‘Addressing violence against
women as a form of hate crime: limitations and possibilities’ (2013) 105 Feminist Review 1). We
will often refer to these terms interchangeably. Other terms which have gained currency within
the literature include ‘domestic violence’ and ‘intimate partner violence’. While we do not contest
the use of these terms, we use the former phrases to reflect the potential for gender ‘hostility’
during offences committed against women.
2 N. Westmarland and G. Gangoli, International Approaches to Rape (Bristol: Polity Press, 2011);
Department of Economic and Social Affair (DESA), The World’s Women 2010:Trends and Statistics
(New York: United Nations, 2010) 130–140; J. P. Hodge, Gendered Hate: Exploring Gender in Hate
Crime Law (New England: Northeastern University Press, 2011) 2.
3 See eg, L. Kelly, J. Lovett and L. Regan, ‘A Gap or a Chasm? Attrition in Reported Rape Cases’
(2005) 293 Home Office Research, Development and Statistics Directorate 1.
4 See eg, BBC, ‘Delhi gang-rape victim dies in hospital in Singapore’ 29 December 2012 at
http://www.bbc.co.uk/news/world-asia-india-20860569 (last accessed 24 June 2013).
5 See eg, BBC, ‘Explaining India’s new anti-rape laws’ 29 December 2012 at http://
www.bbc.co.uk/news/world-asia-india-21950197 (last accessed 24 June 2013).
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© 2014 The Authors. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(4) MLR 563–596
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
against women (henceforth VAW), with a recent report by the World Health
Organisation highlighting that an estimated 35 per cent of all women globally
experience physical or sexual violence at the hands of a current or ex-partner.6
If we consider the fact that ‘gendered violence’ relates not just to rape and
physical violence but also encompasses a wide variety of human rights abuses,
including, inter alia, femicide,7trafficking of women and girls, forced prostitu-
tion, and honour crimes,8we begin to appreciate how VAW is a global problem
of endemic proportions.9
While from time to time VAW catches the attention of the media (especially
in recent years) it is certainly by no means a recent phenomenon. It has,
however, only been in the last few decades that the law has been used specifically
to protect women from gendered violence. It seems almost inconceivable now
to note that marital rape remained ‘legal’ in England and Wales until 1991. It
took the English courts almost two centuries to abolish the common law rule
that prohibited a male spouse from being prosecuted for raping his wife, which
finally met its death knell in the House of Lords decision in RvR.10 In that case,
Lord Keith of Kinkel in his leading speech reflected that ‘the fiction of implied
consent has no useful purpose to serve today in the law of rape’ – as if it really
ever had. The case of RvRis a stark reminder of how slow the courts (and
Parliament) have been to challenge and amend patriarchal formulations of
English law. Part of the problem was that women’s experience of violence
remained largely hidden until victimologists and government agencies began to
investigate it during the latter part of the twentieth century.11 The seminal work
of notable feminist activists and academics in the 1970s, 1980s and 1990s has
been pivotal in bringing female victimisation to the fore of public and political
debate.12
Significant to this article is that the majority of violent acts targeted against
women are committed by men, highlighting the often gendered nature of much
6 World Health Organisation, Global and regional estimates of violence against women: Prevalence and
health effects of intimate partner violence and non-partner sexual violence (Geneva: WHO, 2013); see also
DESA, n 2 above, 130–140; K. Smith (ed), D. Lader, J. Hoare and I. Lau, Hate crime, cyber security
and the experience of crime among children: Findings from the 2010/11 British Crime Survey: Supplemen-
tary Volume 3 to Crime in England and Wales (London: Home Office, 2012) 25. For a discussion
on the methodological limitations of VAW victim surveys see, S. Walby and A. Myhill, ‘New
Survey Methodologies in Researching Violence Against Women’ (2001) 41 British Journal of
Criminology 502.
7 The United Nations states that ‘Femicide is the name given to the gender-based murder of
women, implying that women are targeted and murdered solely on the basis of gender inequalities
in contemporary societies’, DESA, ibid, 134.
8 As well as other social and cultural practices which have the effect of subjugating the rights and
freedoms of women.
9 See also C. Watts and C. Zimmerman, ‘Violence Against Women: Global Scope and Magnitude’
(2002) 359 The Lancet 1232.
11 See generally, S. Walklate (ed), Handbook of Victims and Victimology (Cullompton: Willan, 2007)
Part 2.
12 Such as S. Brownmiller, Against Our Will: Men, Women and Rape (New York: The Ballantine
Publishing Group, 1975); and C. Smart, Feminism and the Power of Law (London: Routledge,
1989); see also Walklate, ibid.
Gender ‘Hostility’, Rape, and the Hate Crime Paradigm
© 2014 The Authors. The Modern Law Review © 2014 The Modern Law Review Limited.
564 (2014) 77(4) MLR 563–596
female victimisation.13 It is by no means new to feminist literature to highlight
the gendered dynamics of VAW. Sexual offences and domestic violence have, in
particular, been conceptualised as conducts which are intended to subjugate and
subordinate women, while simultaneously enforcing a male-dominated social
hierarchy.14 Indeed, the conceptualisation of gendered violence as a form of male
hegemony is now a well-trodden path within feminist and socio-legal scholar-
ship.15 Yet despite the gendered nature of many forms of VAW, this area of legal
and criminological scholarship has remained distant from another burgeoning
area of academic study – that of ‘hate crime’.16 This is a notable omission when
we consider the targeted and bias nature of such offences. While some attempts
have been made to include VAW within definitions of ‘hate crime’ in the
United States,17 its inclusion within the United Kingdom hate crime policy
domain remains elusive. For instance, the Law Commission is currently consid-
ering the possible extension of the legislative framework on hate crime to include
sexual orientation, disability and transgender identity within the current aggra-
vated offences prescribed under sections 29–32 of the Crime and Disorder Act
1998. Yet no mention is made of gender-based hostility. In his theory paper
which accompanies the Commission’s consultation paper, John Stanton-Ife
provides only a fleeting reference to gender, noting that:
In the case of women victims, for example, a question to explore would be the
extent to which women victims of relevant crimes have been selected in virtue of
being women.18
This is the question on which this article focuses. The paper will, in the main,
direct its attention to the specific offence of rape. Rape is often a clear demon-
stration of male dominance over women19 and it is a salient example of when
gendered violence might become a ‘hate crime’.20 Like most other examples of
13 See Hodge, n 2 above, 2.
14 See eg, Brownmiller, n 12 above; Smart, n 12 above; Hodge, ibid. See also B. Perry, In the Name
of Hate: Understanding Hate Crimes (New York: Routledge, 2001).
15 ibid.
16 There is no one agreed definition of hate crime, but common amongst most descriptions is that
it includes offences which are motivated, or partly motivated, by prejudice, bigotry, or animus
based on the victim’s group-based identity traits. See M. Walters, ‘A General Theories of Hate
Crime: Strain, Doing Difference and Self Control’ (2011) 19 Critical Criminology 313.
17 See Hodge, n 2 above.
18 J. Stanton-Ife, Criminalising Conduct with Special Reference to Potential Offences of Stirring Up Hatred
Against Disabled or Transgender Persons (2013) at http://lawcommission.justice.gov.uk/docs/
Hate_Crime_Theory-Paper_Dr-John-Stanton-Ife.pdf (last accessed 24 June 2013). This is despite
the fact that the British Crime Survey has estimated that there are around 120,000 incidents of
gender-motivated hate crime each year – the estimate is based on whether respondents of the
survey perceived their experience of crime to be motivated by the offender’s attitude towards their
gender, Smith et al., n 6 above, 25.
19 See Hodge, n 2 above, 13.
20 E. Rothschild, ‘Recognising another Face of Hate Crimes: Rape as a Gender-bias Crime’ (1993)
4Maryland Journal of Contemporary Legal Issues 231; J. Gaffney, ‘Amending the Violence Against
Women Act: Creating a Rebuttable Presumption of Gender Animus in Rape Cases’ (1997) 6
Journal of Law and Policy 217; K. M. Carney, ‘Rape: The Paradigmatic Hate Crime’ (2001) 75 St
John’s Law Review 314.
Mark Austin Walters and Jessica Tumath
© 2014 The Authors. The Modern Law Review © 2014 The Modern Law Review Limited. 565(2014) 77(4) MLR 563–596
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