Sense and Sensibilities: A Feminist Critique of Legal Interventions against Sexual Violence
| DOI | 10.3366/elr.2019.0523 |
| Author | |
| Date | 01 January 2019 |
| Published date | 01 January 2019 |
| Pages | 22-51 |
Feminists have spent decades trying to reform laws and evidential procedures relating to sexual assault. Using the current Scottish context as a case study, I will argue in this article that while efforts to reform the text of the substantive as well as evidential and procedural aspects of the law have been largely successful, in practice the impact of these reforms has not always been felt. Drawing on contemporary examples from Scotland, and setting these within the broader context of similar problems and arguments in other jurisdictions such as England and Wales, and Canada, I will examine the ways in which the ‘laws on the books’ have not always translated smoothly through to ‘law in action’. Ultimately, I argue that our all too frequent failures to punish sexual violence in a meaningful way suggest that we need to think again about how we deal with issues of sexual violence in contemporary society.
By examining sexual assault law reforms, current statistics and research findings on sexual violence, as well as three recent Scottish sexual assault cases, I demonstrate some of the key ways in which myths and stereotypes about sexual assault, and about gendered social relations generally, subsist, notwithstanding laws designed to enshrine principles and values that protect sexual autonomy and gender equality.
In examining the opportunities and constraints offered by law, I suggest that the law is ultimately inadequate to address deeply engrained social injustices such as sexual violence. The aim here is to highlight an ongoing failure on the part of those charged with applying the law (judges, legal professionals and juries) to do so appropriately, raising the question of whether it makes sense for feminist scholars to try to engage with what seems like the entrenched ‘sensibilities’ of criminal law. It may well be that the contemporary battle ground is not over legal territory as such, but over whose voices are heard in public debates on sexual violence. This is not to say that feminists must abandon the field; rather that we must work to politically engage – and challenge – the gendered ‘common’ sense and sensibilities of those who implement the law, and the cultural milieu within which sexual assault law is interpreted and applied.
In section B below, I provide some contextual information on the evolution of sexual assault law reform projects over the last decade, particularly, but not only, in Scotland, before relaying the statistical incidence of sexual assault in Scotland. In section C, more qualitative research findings on the prevalence and treatment of sexual assault will be examined, with section D offering a critical analysis of three recent Scottish rape cases:
Many gains, both symbolic and practical, have been made because of law reform efforts. For example, the Sexual Offences (Scotland) Act 2009 widened the definition of rape to include anal and oral rape (section 1), thereby also recognising for the first time that men could be victims of rape. The Act also included a specific offence of non-penile sexual penetration (section 2), sexual assault (section 3) and a variety of other sexual offences (sections 4–11); and introduced for the first time a statutory definition of consent as ‘free agreement’ (section 12), outlining situations in which consent was absent (sections 13–15). The Act defines the
Sexual history evidence has been restricted, most markedly by sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995, as amended.
The changes to substantive laws on sexual assault largely followed in the wake of similar changes in England and Wales. Under the Sexual Offences Act 2003, the definition of the act of rape has been expanded to recognise the harm of non-consensual penile penetration not only of the vagina but also the mouth and anus; non-penile penetration of the anus and vagina; and offences of trafficking for sexual purposes, offences of “sex tourism” and offences involving an abuse of a position of trust, amongst others.
It is clear then that the last four decades or so have seen countless recursive attempts to refine central concepts of rape law, such as consent and capacity. This is true not only of UK jurisdictions; many internationally comparative conversations are ongoing regarding the best approach to defining rape,
We might ask, then, is it the case that legislative reforms have made a significant impact on the incidence of sexual violence, the willingness of women to report rape, the conviction rate,
Even where reforms have been achieved, critics have pointed out several problems with the substantive laws in various jurisdictions, regarding for example: what constitutes ‘reasonable’ belief in consent; what counts as a ‘reasonable step’ in establishing whether or not consent existed; or how to assess the level of intoxication that undermines capacity to consent.
Turning to Scotland specifically, these reforms have been in place for almost a decade. So, what is the current picture of sexual violence in Scotland? According to the most recent figures available, the crime rate generally has been on a downward trend since 1991: in 2016–17 recorded crime overall had decreased by 3% from the previous year to 238,651, the lowest crime rate since 1974.
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