Sentencing: The real rape myth

Abstract

abstract This Focus explores, from a legal feminist perspective, one of several points within the criminal justice system's response to rape victims where discretion is exercised. Although judicial discretion in sentencing is now constrained by minimum sentencing legislation it is evident that the caveat allowing for deviation from prescribed sentences under ‘substantial and compelling circumstances’ has enabled the retention of considerable leeway. This Focus responds to recent criticism leveled at the sentencing of convicted rapists under this legislation. It is argued that the manner in which the judiciary has interpreted and deployed this proviso, reveals not only their institutional resistance to perceived intrusions on the judicial function but also problematic assumptions and prejudices which inform judicial reasoning in sentencing decisions. In particular, judicial reasoning reflects a social construction and legitimation of rape which is best understood as a manifestation of the continued prevalence of ‘rape myths’. The Focus provides a contextual outline of feminist theory relevant to the operations of rape mythology and the legal framework within which perpetrators are sentenced. Analysis of 14 randomly selected sentencing judgments exposes the continued judicial reliance on rape myths. It seeks to highlight the role of sentencing by courts in the maintenance and perpetuation of a criminal justice system that marginalises the experiences of the vast majority of rape victims. This response, it is argued, is inimical to a true recognition of the harm of rape and of the equal position of women and children before the law.