Seen but Not Heard? Parallels and Dissonances in the Treatment of Rape Narratives across the Asylum and Criminal Justice Contexts

DOIhttp://doi.org/10.1111/j.1467-6478.2009.00463.x
AuthorSharon Cowan,Helen Baillot,Vanessa E. Munro
Publication Date01 Jun 2009
JOURNAL OF LAW AND SOCIETY
VOLUME 36, NUMBER 2, JUNE 2009
ISSN: 0263-323X, pp. 195±219
Seen but Not Heard? Parallels and Dissonances in the
Treatment of Rape Narratives across the Asylum and
Criminal Justice Contexts
Helen Baillot,* Sharon Cowan,** and
Vanessa E. Munro***
A significant proportion of women seeking refugee status in the United
Kingdom will claim to have been raped in their country of origin. Even
where this is not the sole basis of an asylum claim, it may be relevant to
its determination. While criminal justice responses to rape have been
the subject of extensive academic criticism and legislative reform, the
processes of disclosure and credibility assessment in the asylum
context have received little attention. This article explores possible
parallels and dissonances in the treatment of rape across the asylum
and criminal justice contexts, drawing in particular on the findings of a
2007 pilot study. It considers how problems such as the under-
reporting of rape, the inability of the victim to `tell the story' in her
own words, a hostile adjudicative environment, and the tendency to
regard factors such as late disclosure, narrative inconsistency, and
calm demeanour with suspicion ± may be replicated and compounded
in asylum cases. It also acknowledges the complex intersection of race,
gender, culture, and nationality in this context.
195
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School. Published by Blackwell Publishing Ltd,
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*Independent researcher involved in providing asylum support in Scotland
helen.baillot@scottishrefugeecouncil.org.uk
** School of Law, University of Edinburgh, Edinburgh EH8 9YL, Scotland
s.cowan@ed.ac.uk
*** School of Law, University of Nottingham, Nottingham NG7 2RD,
England
vanessa.munro@nottingham.ac.uk
Thanks are due to The Clark Foundation for Legal Education and the University of
Edinburgh Development Trust Research Fund for financing this pilot study. The authors
would also like to thank those participants who agreed to be interviewed over the course
of the study.
Despite ongoing reform of substantive and procedural sexual offences laws
in the United Kingdom,
1
concerns continue to be expressed about the legal
processing of rape cases. Research has challenged the presence of institu-
tionalized mythologies about the (in)credibility of a woman's claim of rape
and has highlighted the high rate of attrition as rape cases `fall out' of the
formal criminal justice system.
2
Critical attention has also focused on the
public perception of rape victims. Problematic views on responsibility for
sexual assault have been highlighted and it has been argued that, alongside
law reform, social attitudes about rape and gender roles must shift if we are
to achieve justice for female victims.
3
Against this backdrop of scrutiny and concern in the criminal justice
context, the authors sought to evaluate another area of social justice where a
claim of rape may have an important part to play. A pilot study was
undertaken to examine the situation faced by female asylum-seekers who, in
claiming refugee status in the United Kingdom, report having been raped in
their country of origin as part of the grounding for their claim to persecution
(or well-founded fear thereof). Though not the subject of sustained attention
to date, the treatment of disclosures of sexual violence in the asylum context
is important, both for what it tells us about the parallels and dissonances with
the treatment of rape in the criminal justice context and for what it might
exemplify in relation to asylum decision making more broadly. Even if a
woman's alleged experience of rape does not form the sole basis of her
asylum claim, it may nonetheless be relevant to a host of vital asylum-related
considerations, including the seriousness of the harm previously suffered and
196
1 The substantive law of rape in England and Wales was reformed by the Sexual
Offences Act 2003 (for background, see Home Office, Setting the Boundaries:
Reforming the Law on Sex Offences (2000) and Home Office, Protecting the Public
(2002; Cm. 5668)), and in 2008, the Scottish Law Commission produced a draft Bill
to generate similar reforms. The Crown Office and Procurator Fiscal Service
(Scotland) and the HM Inspectorate of Constabulary and HM Crown Prosecution
Service Inspectorate (England and Wales) have produced reports critical of the
investigation and prosecution of rape in their respective jurisdictions: Review of the
Investigation and Prosecution of Sexual Offences in Scotland: Report and
Recommendations (2006); Without Consent: A Report on the Joint Inspection into
the Investigation and Prosecution of Cases Involving Allegations of Rape (2007).
2 For further discussion, see, for example, L. Kelly et al., A gap or a chasm?: Attrition
in reported rape cases, Home Office Research Study 293 (2005); J. Temkin, Rape
and the Legal Process (2002, 2nd edn.); and Office for Criminal Justice Reform
(OCJR), Convicting Rapists and Protecting Victims ± Justice for Victims of Rape
(2006).
3InEngland and Wales, see Amnesty International, Sexual Assault Research:
Summary of Findings (2005); E. Finch and V. Munro, `The Demon Drink and the
Demonised Woman: Socio-Sexual Stereotypes and Responsibility Attribution in Rape
Trials Involving Intoxicants' (2007) 16 Social and Legal Studies 591; and J. Temkin
and B. KraheÂ, Sexual Assault and the Justice Gap (2008). A recent survey in Scotland
revealed parallel results: see Scottish Executive, Domestic Abuse 2006/7: Post
Campaign Evaluation (2007).
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School

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