Rape Politics, Policies and Practice: Exploring the Tensions and Unanticipated Consequences of Well‐Intended Victim‐Focused Measures

Date01 March 2017
Published date01 March 2017
DOIhttp://doi.org/10.1111/hojo.12190
AuthorCLARE GUNBY,ANNA CARLINE
The Howard Journal Vol56 No 1. March 2017 DOI: 10.1111/hojo.12190
ISSN 2059-1098, pp. 34–52
Rape Politics, Policies and Practice:
Exploring the Tensions and
Unanticipated Consequences of
Well-Intended Victim-Focused
Measures
ANNA CARLINE and CLARE GUNBY
Anna Carline is Associate Professor, Leicester Law School; Clare Gunby is
Lecturer, Department of Criminology, University of Leicester
Abstract: The inability of the criminal justice system to respond effectively to rape has
led to numerous law and policy reforms in England and Wales. Nevertheless, difficulties
remain, with problems often linked to the impact of rape myths and implementation
failure. This article, however, adopts a different lens through which to explore the ongoing
challenges faced by rape complainants. Drawing on interviews with 14 barristers in
the north-west of England, the article asks: how have rape law and policy reforms
impacted practice for this group of practitioners? The findings highlight that numerous
tensions emerged from these reforms. In particular, measures that were perceived to
be politically driven and well intended were often perceived to generate unanticipated
negative consequences for complainants, as opposed to improving their experience. In
concluding, we emphasise the importance of a close working practice between the policy
maker and practitioner, in order to institute more effective responses.
Keywords: barristers; criminal justice practice; feminism; policies; politics;
rape; victims
The inability of the criminal justice system to respond effectively to rape
has led to the offence remaining high on the political agenda in England
and Wales. Successive governments have implemented a plethora of sub-
stantive and procedural reforms, reviews and policy documents, all aiming
to improve the criminal justice system’s response (see, for example, Crown
Prosecution Service and Police 2002, 2015; Home Office 2000, 2002, 2006;
Stern 2010). As is well known, concerns exist with regards to the high attri-
tion and low conviction rates for rape, the construction, treatment and re-
victimisation of complainants, and the pervasive nature of rape myths and
misconceptions (see, for example, Kelly, Lovett and Regan 2005; Saunders
2012a; Stern 2010; Temkin 2000). However, despite substantial reform,
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2016 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol56 No 1. March 2017
ISSN 2059-1098, pp. 34–52
‘little really changes’ when it comes to rape (Cook 2011, p.257; see also
Brown 2011).
Previous research has examined the negative consequences of adversar-
ial justice for rape survivors, the impact of rape myths, and also highlighted
the problem of an ‘implementation gap’: the failure of some policies to filter
down into practice (see, for example, Cook 2011; Kelly, Lovett and Regan
2005; Lees 2002; Stern 2010). However, this article aims to address the
following research question: to what extent, and in what ways, have rape
law and policy reforms impacted practice, from the perspective of those
who work daily with rape cases?1Drawing upon semi-structured inter-
views with 14 barristers, we highlight that, for this group of practitioners,
reforms instituted to rectify historical abuses, better support complainants
through the trial process and ultimately improve attrition and conviction
rates, were often considered to be counterproductive in effect. Rather than
aid complainants, well-intended reforms were perceived to sit in tension
with the working reality of the court system. Consequently, reforms often
produced unanticipated and negative consequences, including leaving
complainants ill-prepared for the reality of the court experience; thus
contextualising why conviction and attrition rates continue to remain static.
Of particular note, barristers identified the politics of rape reform as
a pivotal factor in the production of these unanticipated negative conse-
quences. More specifically, government and policy makers were seen to
draw upon, and promote, frequently conflicting political agendas in their
responses to rape. On one hand, numerous reforms were victim-centric
in focus and, to some extent, reflected feminist concerns relating to
protecting and supporting rape complainants. Conversely, other measures
reflected a wider law and order agenda which concentrated on crime
control and increasing conviction rates. However, in practice, any attempt
to accommodate these two agendas produced multiple tensions.
The article begins by providing an account of the related policy and
law reforms in England and Wales. Thereafter, we situate the politics of
rape reform within the broader notion of ‘the politicisation of rape’. Here,
we refer specifically to the means via which rape has been, and continues
to be, constructed as a political issue. While we emphasise the pivotal
role that feminist activism has played in this process of politicisation,
we also highlight that a tension emerges, due to the potential for the
State to co-opt feminist-inspired rape reforms. Subsequent to outlining
the study methodology, the article examines the following themes that
emerged from the analysis of interview data: prosecutorial decision
making, challenging the complainant, and the conviction rate.
In conclusion, we argue that policy tensions, co-optation and the
potential for unanticipated negative consequences should not be taken
to militate against ongoing endeavours to improve the system. Rather, it
signals the need for continuous scrutiny as to how frequently conflicting
policies operate in practice and the importance of fostering a close working
relationship between practitioners and policy makers, in order to institute
more effective responses. In England and Wales, no other research, to
the authors’ knowledge, has explored the unanticipated consequences
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2016 The Howard League and John Wiley & Sons Ltd

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