Rape, Resistance and Women's Rights of Self-Defence
| Published date | 01 July 1993 |
| Date | 01 July 1993 |
| Author | Paul Wilson,Gail Reekie |
| DOI | 10.1177/000486589302600204 |
146 (1993) 26
ANZJ
Crim
RAPE, RESISTANCE AND WOMEN'S RIGHTS
OF SELF-DEFENCE
Gail Reekie
and
Paul Wilson·
The legaland criminaljustice systemsproceed on the masculinist assumption that a woman's body
communicates her lack
of
consent to sexual intercourse
and
that a woman will offer strong physical
resistance to sexual violence. Recentchanges to the legal definition
of
non-consent as a positive
and
perfonnative act provide womenwith greater protection underthe rape laws. Women are unlikely to
be protected bythe law, however,
if
their physical resistance to sexual assault results in death or
serious injury. This paper argues that, to ensure that women subjected to sexual violence have full
equality and justice before the law, all manifestations
of
women's resistances
must
be seen as
acceptable and lawful acts
of
self
defence.
Although feminists have been successful in reforming many aspects of rape laws
(see, for example, Scutt 1990b, pp 469-75), women who have experienced sexual
violence are still denied the full protection and support of the law. Women who have
been raped are most likely to succeed in bringing their attacker to justice if they can
prove conclusively that they did not consent to sexual intercourse.
The
criminal
justice system expects, if not requires,
that
women prove that they offered strong,
immediate and physical resistance to a sexual attack.
Should awoman resist such violence in such a manner that
her
resistance resulted
in the assault or murder of her assailant, it is unlikely that she would be able to
successfullyplead in court that she acted in self-defence. In order to be protected by
the law in situations of sexual violence, women must offer strong physical resistance,
but not so strong that that resistance results in death or serious injury.
The
criminal
justice system thus makes clear awoman's obligations to defend herselfagainst rape,
while failing to guarantee her the freedom to do so in whatever
manner
she sees fit
under the circumstances.
This paper examines the discrepancy between the legal meanings of resistance
and women's actions and feminist practice in rape resistance and avoidance. As
feminist legal scholars have argued in relation to domestic violence, the law and the
criminal justice system's definitions of force and self-defence are inappropriately
based on men's experiences of violence. Recent efforts to define consent in ways
more consistent with women's experiences of sexual assault are a crucial step in
reconciling this contradiction. We argue that, in addition to reforming rape laws,
more attention needs to be paid to clarifying
and
extending women's legal rights of
self-defence against sexual violence.
Legal meanings of resistance
Because defence counsel can use the absence of "serious" injury to argue that the
victim participated in consensual sexual intercourse, evidence of physical resistance
in the form of documented injuries helps considerably in the successful prosecution
and conviction of rapists. Brereton's analysis of all rape prosecutions initiated in
Victoria in 1989 - a total of 144 accused men - demonstrates that the greater the
injury, the greater the likelihood that the accused will be convicted: in cases in which
*
Dr
Gail Reekie and Professor Paul Wilson,
Community
Development and
Crime
Prevention
Unit,
Queensland University of Technology, Carseldine
Campus.
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