Serving Two Masters: Conflicts of Interest in the Modern Law Firm
| Published date | 01 November 2003 |
| Date | 01 November 2003 |
| DOI | http://doi.org/10.1046/j.1468-2230.2003.06606009_3.x |
REVIEWS
Jennifer Temkin,Rape and the Legal Process, 2nd edition, Oxford: Oxford
University Press, 2002, xxxviii þ385 pp, hb d60.00.
In the last three decades there has been a dramatic expansion in the scholarly
literature examining how the legal process deals with rape and sexual assault. As
part of this trend scholars from a variety of disciplines have focused increasingly
on the legal system’s failure to protect women, children and men from sexual
violence. Researchers have also provided crucial information on the prevalence
and impact of rape and sexual assault. Some of this work has been enormously
influential on policy makers and has undoubtedly led to changes in the substantive
law and its enforcement. The second edition of Professor Jennifer Temkin’s Rape
and the Legal Process is likely to fall within this category. It is fifteen years since
the first edition of this work was published and in that time there have been many
changes to the law of rape. The legal definition of rape has been revised, with the
recognition of marital rape and the rape of males. There have been changes to
patterns of sentencing and protections offered to complainants in rape trials,
changes in evidential rules pertaining to the sexual history of complainants, as well
as significant improvement in the police response to rape. There are also imminent
changes to the law with the current Sexual Offences Bill and the recent revision to
the sentencing guidelines in cases of rape. In this significantly expanded edition of
Rape and the Legal Process Professor Temkin takes stock of these, and many other
developments and sets out an agenda for future legal reform.
To those who already know her work it will come as no surprise that the second
edition of Rape and the Legal Process is an outstanding contribution to the
existing literature in this area. It is written in a clear, well-structured style and
tackles many of the most difficult problems surrounding the law of rape.
Crucially, this work integrates three key approaches to the analysis of rape law:
first, it examines the legal definition of rape; secondly, it looks at how that
definition is enforced; thirdly, it sets out specific proposals for assisting victims of
rape within the legal process. It also marries the substantive law and policy issues
with material from the social science literature. So for example, when discussing
the use of a defendant’s past misconduct in rape trials, Temkin surveys the current
law, proposals for change, and developments in other countries, as well as
empirical research on how mock jurors use such evidence (pp 225– 254). This
approach, which is adopted throughout the book, is a distinct strength and avoids
some of the weaknesses evident in other scholarly work on rape, including
approaches that sacrifice clarity and structure for barely comprehensible theoris-
ing and analysis that is only concerned with the substantive law, without reference
to wider perspectives or sources of knowledge.
In her opening chapter on rape within the criminal justice system, Temkin places
subsequent discussion within a context of law enforcement. She examines a range
of issues including the experiences of victims in court, police treatment of rape and
issues of sentencing. Temkin includes discussion of two trends. The first of these is
that since the early 1980s there has been a substantial increase in the number of
rape offences being reported to the police (p 12). This, in part, undoubtedly
reflects improvements in the response of criminal justice agencies, in particular the
rThe Modern Law Review Limited 2003. (MLR 66:6, November). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
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