What’s law got to do with it? Comparing the failure to deter or convict rapists in the United Kingdom and South Africa
| Author | Maggie Wykes,Lillian Artz |
| DOI | 10.1177/0269758019886510 |
| Date | 01 May 2020 |
| Published date | 01 May 2020 |
| Subject Matter | Articles |
Article
What’s law got to do with it?
Comparing the failure
to deter or convict rapists
in the United Kingdom
and South Africa
Maggie Wykes
University of Sheffield, UK
Lillian Artz
University of Cape Town, South Africa
Abstract
The journey from reporting rape to convicting rapists is complex, leading to high attrition and non-
conviction rates. After wide consultation, the law in England and Wales was revised in 2003 to try
to secure more convictions. In South Africa, a similar process occurred to produce a new law in
2007. Nonetheless, reported rapes have risen and conviction rates have fallen in both jurisdictions
and it has been suggested that the failure of the criminal justice system to deal with
‘rape ...encapsulates the sheer inadequacy of the law’ (Wykes and Welsh, 2009: 111) and offers
little hope of justice to victims and little deterrence to perpetrators. In South Africa little has
changed, except more is known about ‘the lived experiences of sexual violence’ (Artz and Smythe,
2007: 17) and more support is offered to victims after the event. This article explores the part
played by law in dealing with rape, through a comparison of the UK and South Africa. Critical
gendered analysis of their respective rape laws leads to the conclusion that that law cannot work
effectively to deter or convict rapists: only men’s willingness to change can stop rape.
Keywords
Rape, law, gender, culture, power
Corresponding author:
Dr Maggie Wykes, School of Law, University of Sheffield, Bartolome House, Winter Street, Sheffield S3 7ND, UK.
Email: m.wykes@shef.ac.uk
International Review of Victimology
2020, Vol. 26(2) 212–233
ªThe Author(s) 2019
Article reuse guidelines:
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DOI: 10.1177/0269758019886510
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Introduction
In South Africa 39,828 rapes were reported in 2016–17 (Africacheck, 2017). Conviction rates are
hard to estimate as the South African National Prosecuting Authority does not disaggregate rape
from other sexual assaults in its data.
1
A study by the Medical Research Council identified a
sample of 3,952 rape cases recorded by police in 2012, of which 8.6%ended in conviction
(Wilkinson, 2016). The Institute of Security Studies found that in some provinces only 4%of
cases led to conviction (Vetten, 2014: 6). In England and Wales in 2016–17, police recorded
41,186 reports of rape, of which 4,520 were male rapes (ONS, 2018). There were just 5,190
prosecutions and 2,991 convictions (CPS, 2017). This averages at about 7%of police recorded
crime. Yet, seemingly progressive legislative changes were introduced in 2003 in England and
Wales
2
and in 2007 in South Africa to try to better address sexual violence. In this article our focus
on rape law is for two reasons. It has been much invested in for many years to try to alleviate
suffering to, most usually, women and girls (Lees, 1996; London Rape Crisis Centre, 1984; Myhill
and Allen, 2002; Walby and Allen, 2004). Rape is considered a deeply serious offence in law, yet
there is a huge disjuncture between the seriousness the law and legal institutions attach to the crime
and the lack of improvement in deterrence or conviction.
The reasons for comparison between the UK and South Africa are the close relations of both
legal systems and because the more recent South Afri can law
3
developed, to some extent, in
relation to developments and critiques of the Sexual Offences Act 2003.
4
South Africa is a rapidly
and actively emerging post-apartheid cultural context where constitutional rig hts frame social
progress, unlike the ongoing neo-liberal conservative socio-political environment of the UK. Yet
law reform has not seen any consequent reduction in rape or improvement in conviction in either
country. This is despite long histories of copious research and writing about rape, some on law
(McGlynn and Munro, 2010) but most on other areas such as victims (Christofides et al., 2006;
Garvey, 2005); policing (Artz and Smythe, 2007; Gregory and Lees, 1999); criminal justice
processes (Kelly et al., 2005; Vetten et al., 2008); media representation/stereotyping (Mahria,
2008; Wykes and Welsh, 2009) and support agencies (Lupton and Gillespie, 1994). All of these
have contributed to knowledge but not seen a diminution in numbers of rapes reported or improve-
ment in conviction rates. So might something be learned about that failure to deter and punish
rapists by comparing the role of relatively newly and carefully crafted rape laws in a rapidly
emerging African culture such as South Africa with those in a long-established Western demo-
cratic context such as the UK?
Rape and the law: The UK
Emerging legislation in England and Wales seems to have had little impact on reducing rape,
indeed the available data almost suggest the opposite. Yet the process of reform was vigorous and
the Home Office involved and consult ed criminal justice professionals , advocacy groups and
academics. Macgregor (2011) writes that in the UK, at the end of the Second World War, only
240 cases were reported. Yet in 2010–11, a few years after the new Act came into force, there were
14,624 female rapes and 1,310 male rapes (Chaplin et al., 2011). This may not have been because
more rapes were occurring but perhaps because the criminalisation of rape in marriage in 1991 and
male rape in 1994, alongside feminist consciousness raising, were rewriting the meaning of sexual
violence and liberating victims to report rape. The volume of rape is troubling enough in the
reported data, yet in the UK some 89%of rapes are estimated to go unreported (Chaplin et al.,
Wykes and Artz 213
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