Interpreting the Feminine in the Criminal Trial: Can the Insights of Rape Myth Scholarship Help Mothers Accused of Killing Their Children?

Abstract

The term myth has been used in a number of contexts to capture concerns about the ways in which women facing prosecution, may be portrayed and perceived and subsequently, adversely affected by the criminal justice system. This paper examines the history of two myths in particular, the rape and mothering myths. The paper shows how the term rape myth, has been developed to become a positive tool leading to a more realistic understanding of women complainant behaviours in the criminal justice system and more broadly. Critical understanding of the mothering myth in contrast is argued to lag behind, and this paper suggests that if the insights of rape myth scholarship are employed, a new theorisation of the mothering myth can be created. As with the rape myth, the new mothering myth as a device can aid a more thoughtful and realistic appreciation of the meaning and probative value of maternal behaviours around the time that a child dies. The mothering myth can then be used to show that biased interpretations of maternal behaviours, may have contributed to wrongful convictions in some child death cases and that in the future we need to be mindful of the real value to the criminal justice system of maternal behaviour evidence. In this way using and doing even recent women's legal history can assist us in finding new ways to increase our understanding of women's legal experiences.