Rape, Prostitution and Consent
| DOI | 10.1375/acri.40.2.127 |
| Published date | 01 August 2007 |
| Date | 01 August 2007 |
| Author | Barbara Sullivan |
127
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
VOLUME 40 NUMBER 2 2007 PP.127–142
Address for correspondence: Barbara Sullivan, School of Political Science and International
Studies, University of Queensland QLD 4072, Australia. E-mail: barbara.sullivan@uq.edu.au
Rape, Prostitution and Consent
Barbara Sullivan
The University of Queensland, Australia
Sex workers are particularly vulnerable to sexual assault.However, until
recently, there were significant barriers to the prosecution of those
who raped sex workers. Prostitutes were seen as ‘commonly’ available to
men, as always consenting to sex and thus as incapable of being raped.
This article examines 51 judgments — from the United Kingdom,
Australia, Canada and New Zealand — where evidence of prostitution
was presented between 1829 and 2004. It demonstrates an impor tant
change in the 1980s and 1990s when, for the first time, men began to be
prosecuted and convicted for raping sex workers.This change was partly
due to rape law reform,but also to feminist activism and broader changes
in social attitudes to rape. The article argues that sex workers have
recently been ‘re-made’ in law as women vulnerable to rape, as individuals
able to give and withhold sexual consent.This development needs to be
taken seriously so that law and policy addressed to the sex industry
works to enlarge (not reduce or constrain) the making of prostitutes as
subjects with consensual capacity.This necessarily involves attention to
more legal rights for prostitutes, as workers, and calls into question the
conceptualisation of prostitution as always involving rape.
Sexual Assault, Prostitution and Consent
It is now widely acknowledged that rape and sexual assault1are common, but largely
under-reported; crimes that particularly impact on the life experiences of women.
However, it is only in recent years that research has drawn attention to the very high
incidence of rape suffered by women sex workers in the course of practising their
occupation (Church, Henderson, Barnard, & Hart, 2001; Neame & Heenan, 2003, pp.
7–9) and it would appear that sex workers are even more likely than other women not
to report a sexual assault to the police. Clearly, there are a number of reasons for this.
Many women who have been raped describe feelings of shame and powerlessness that
present clear barriers to the reporting of these crimes. Women’s decisions not to report a
sexual assault may also be a rational choice; the literature suggests that perpetrators of
sexual assault are very unlikely to be charged, let alone convicted, and that victims will
often suffer significant negative consequences during and after a rape prosecution
(Department for Women, 1996; Heath, 2005). Sex workers perhaps face even more
difficulties than other women in all of this. Jan Jordan (2004, p. 18) has recently argued
that complaints of rape made by sex workers run a much greater risk of not being taken
seriously by police and prosecutors. Sex workers themselves say one reason they do not
report sexual assault is fear the police will charge them with prostitution or other
offences. And this may indeed be what happens. Banach (1999, p. 18) has reported that
several of the Queensland sex workers she interviewed were actually arrested (usually
for nonpayment of fines) when they attended a police station to report a sexual assault.
Until recently, there were also other significant barriers that prevented the prosecu-
tion of those who sexually assaulted sex workers. In common law jurisdictions like the
United Kingdom, Australia, New Zealand and Canada, some of the evidentiary
jurisprudence clearly linked chastity with veracity. So women who were or had been sex
workers, those who were ‘rumoured’ to be prostitutes or who were simply promiscuous
and behaving ‘like a prostitute’ lacked credibility as complainants, which made it diffi-
cult for the prosecution to prove the sexual assault beyond a reasonable doubt. Women
in any of these categories were seen at law as ‘commonly available’ to men, as always
consenting to sexual activity and thus, as not able to be raped.2Men accused of sexual
assault were therefore able to use evidence of prostitution to defend themselves, to
undermine the credibility of rape complainants and to successfully avoid conviction.
This article aims to explore some of the legal and social barriers to the prosecu-
tion of those who sexually assault sex workers. There are many ways this aim might
be pursued but this article examines court judgments in sexual assault cases involv-
ing complainants who were sex workers or where evidence of prostitution was
presented to the court. A search was made, initially in 2000, with a follow-up in
2004, for judgments (both reported and unreported) that fitted this description in
the United Kingdom, Australia, Canada and New Zealand. These four countries
were selected because of their strong cultural (and legal) links and because it was
assumed there would be only a very small number of available judgments (so
looking at more than one country was an attempt both to identify any broad trends
in relation to the prosecution of sexual assaults where the complainants were sex
workers and to increase the number of cases available for examination). The
assumption about a small number of judgments proved to be correct in relation to
the period before the late 1980s, but a large (and burgeoning) number of judgments
were found for the last 20 years. So the sample used in this investigation is not
comprehensive, especially for the last 20 years. Fifty-one judgments were located
and utilised in this study, including 21 from the United Kingdom, 14 from
Australia, 12 from Canada and 4 from New Zealand; these span a period between
1829 and 2004, although the vast majority of court judgments examined are from
the post-1950 period. Most involve appeals in relation to the conviction or
sentencing of men accused of rape; there were no women defendants, and there was
only one male complainant (involving a male sex worker in the Canadian case of R
v Palrette Hoonjan). In the first part of this article I examine the development and
application of evidentiary rules that prevented the prosecution and conviction of
men who sexually assaulted sex workers (and other women deemed similar to prosti-
tutes). In the second part of the article I look at how this situation began to change
in the late 1980s and 1990s. This was due partly to rape law reform but also to
feminist activism and changing social attitudes to rape in the broader community.
Overall, the article argues that sex workers have recently been ‘re-made’ in law as
women vulnerable to rape, as individuals able to give and withhold sexual consent,
128
BARBARA SULLIVAN
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
To continue reading
Request your trial