Rape Law Reform Research Articles

“The Damage is Permanent”: Law, Women’s “Honor,” and the Psychiatrization of Sexual Violence in Post-reform Turkey

Abstract Existing literature is deeply divided on the effectiveness of rape law reforms. Intervening in this literature, this article examines the workings and consequences of ostensibly gender-neutral and victim-friendly reforms in Turkey. Through court observations, document analysis, and interviews with legal actors, I show how complex—and gendered—notions of victimization, harm, and trauma are embedded in sexual assault laws. I argue that the law defines sexual violence as inherently and invariably traumatizing, causing symptoms that can be identified and evidenced through the examination of the mental states of survivors, thus psychiatrizing it. This psychiatrization rests on the idea that rape primarily, and unequivocally, damages women’s “honor.” Consequently, the category of “legitimate victimhood” does not disappear; rather, it is reinvented by medico-legal logics that invoke gendered norms of honor and morality, which infuse and shape deliberations of justice in cases of sexual violence.

Unintended Consequences: A Critical Analysis of Nepals Rape Law Reform and Its Impact on Juvenile Justice.

The increase of the age of consent to 18, with the Muluki Penal Code that came into effect in 2017, created an unintended burden on the juvenile justice system in Nepal. The amendment, drafted to protect minors from sexual exploitation by adults, resulted in the criminalisation of consensual relationships between adolescents. The surge of inmates aged 16 to 18 years is leading Nepal into a crisis in its juvenile correction centres, with overcrowded facilities, decrepit conditions, and increased violence. This crisis was underlined by three deaths in juvenile correction centres at Bhaktapur, Parsa, and Banke up to September 2023. This article explores the legal, social, and ethical dilemmas generated by Nepal's reforms of rape law and advocates for a more nuanced approach in safeguarding vulnerable populations without moralising normal adolescent sexual conduct. This approach is based on the consideration of pending challenges for the juvenile justice system and the development of strategies to reconcile child protection goals with the realities of adolescents' relationships. Keywords: Informed consent; juvenile delinquency; Nepal; rape.

From coercion to consent: Dutch rape law reform and the complexities of consent

Rape law reform currently ranks high on the agenda of many criminal justice systems. In this context, the distinction between different conceptions of rape as either consent- or coercion-based has traditionally played an important role. This paper analyses the shift from a coercion to a consent-based model of rape, using Dutch law as a backdrop to take a closer look at the ongoing discussion on how to regulate rape, as well as the uncertainties and complexities that reforms need to address. It departs from a theoretical level and first outlines the main features of the two aforementioned models of rape. Subsequently, the paper looks at the international level and the emerging European definition of rape. Next, the current Dutch coercion-based model as well as the pending consent-based reform proposal are discussed. To shed further light on the conceptual architecture and inherent definitional complexities of consent, a comparison with the consent-based system of England and Wales is undertaken. This helps to gauge the current Dutch proposal and highlights complex (normative) questions that rape law reform needs to address, providing impetus for future discussions as to how the guidance and scope of protection of sexual autonomy provided by consent-based models of rape may be further improved.

Tonic Immobility as a Defensive Trauma Response to Rape: Bridging Public Health and Law.

There is widespread scientific evidence that validates tonic immobility (TI) as part of the trauma response in victims of rape, and criminal justice practitioners are increasingly trained in trauma-informed approaches. Yet, legal and policy definitions of consent do not fully recognize TI during the incident as evidence of nonconsent. Using a systematic review of U.S. law and policy regarding sexual violence and consent, this paper analyzes the substantial legal reform of rape law and definitions of consent, suggesting ways to further integrate TI into existing law and legal practices to improve public health approaches and justice responses for victims.

Redefining consent: rape law reform, reasonable belief, and communicative responsibility

AbstractContemporary trends in rape law reform have resulted in the adoption of more affirmative or communicative conceptions of sexual consent across many jurisdictions. Drawing on empirical research conducted by the author in the wake of the 2019 Gillen Review into serious sexual violence in Northern Ireland and proposed changes to the law on consent, this article illuminates the social and cultural norms that inform and complicate the construction and interpretation of consent models. Three broad themes from the primary data are identified: the law's (in)ability to capture the complexity of human interactions, societal ambivalence around consent and rape, and consent confusion. The article concludes by introducing and further developing the notion of communicative responsibility and arguing that it should be used as a prism through which to make sense of the enduring challenges in this area of law and human interaction.

Progressive or regressive rape case law? Tshabalala v S; Ntuli v S 2020 2 SACR 38 CC

The Constitutional Court’s decision in Tshabalala v S; Ntuli v S 2020 2 SACR 38 CC is undoubtedly a step in the right direction towards rape law reform in South Africa, however, this article challenges the court’s decision to extend the application of the common law doctrine to common law rape. It is argued that the court could have highlighted the power dynamics at play during the commission of rape without denouncing instrumentality as a central element of the crime. This article further argues that the Constitutional Court, in developing common law rape, should have taken into account that rape is a conduct/instrumental crime under the Criminal Law (Sexual Offences and Related Matters) Amendment 32 of 2007. Instead, the judgment now has the effect of creating different elements for common law rape, in cases where there is more than one perpetrator.

Ten Years Since Nirbhaya: A Critical Analysis of Retributive Justice in Addressing Sexual Violence

Following the infamous Nirbhaya gang rape incident in December, 2012, a host of rape law reforms were introduced in India, including stringent punishment and death penalty under the Criminal Law Amendment Act and Protection of Children from Sexual Offences Act. This article questions the effectiveness of such punitive measures in dealing with sexual violence. While, the legislative reforms offer tougher sentencing, they place less emphasis on victims’ rights and also tend to ignore the social context in which sexual violence occurs. The present paper offers the critique of punitive populism of the legislation through four discourses: Rape as ‘loss of honour’, Rapists as a ‘monster’ syndrome, Perspectives of victimsurvivors and Retributive justice and marginalised identities. By exploring victim-survivors’ participation, restorative and transformational practices and acknowledging the larger socio-cultural context in which sexual violence takes place, this article sheds light on a range of strategies to address sexual violence from the perspectives of victims.

Anatomy of a rape: Sexual violence and secondary victimization scripts in U.S. film and television, 1959–2019

The rape law reform movement in the U.S. has made significant progress since the 1970s. All fifty U.S. states and the District of Columbia have now made changes to their rape statutes. Nonetheless, the incidence of reported rape has increased substantially since the 1970s, and rape conviction rates have remained frustratingly low. Such statistical evidence suggests that amending legal statutes has not proven sufficient to curb endemic sexual violence in the U.S. Effective prevention requires a deeper understanding of rape culture, the conglomeration of discourses, ideologies, and practices that normalize sexual assault. Of particular interest here are mass mediated representations of rape, and their power to authorize or critique sexual violence, its root causes, and its consequences. This paper interrogates and seeks to disrupt rape culture by critically analyzing three media texts with narratives based on real-world cases of sexual violence and secondary victimization, the films Anatomy of a Murder, 1959 and The Accused, 1988 and the Netflix miniseries Unbelievable, 2019. With roughly thirty years between these texts, they provide snapshots of shifting attitudes and practices around sexual violence and secondary victimization in the U.S., from the pre-reform era to the #MeToo era. The analysis reveals some heartening changes but also some disturbing continuities in the real-world ideas and practices that media texts reflect and amplify.

Consent, Rape and the Criminal Law

The story of US criminal rape law reform tends to be told as one of remarkable feminist success (between 1970–1990, feminist-led coalitions changed state laws so that rape ceased to be a crime requiring force and resistance and became instead a crime that only required sex without consent) followed by widespread stagnation. Despite comprehensive changes in the law, reporting rates, prosecution rates and conviction rates for rape increased only slightly. This essay resists that binary account of success and failure by offering a more nuanced assessment. First, it explores the full range of factors hindering the reporting, prosecution and conviction of rape crimes, including the role played by social norms. Second it argues that, by changing rape’s definition to an inquiry focused upon whether the victim consented, the law has facilitated a shift in cultural and institutional norms governing unwanted sex. In short, the law’s message that unwanted sex is wrong matters. It is naive to think that a change in law would, on its own, end rape culture. But there is ample evidence to support the conclusion that rape law reform has played a central role in reducing society’s tolerance of the rape prerogatives that have held sway for millennia.

Rape Myth Acceptance Among College Students in India: Prevalence and Predictors in a Changing Context

ABSTRACT In recent years, India has been marked by highly publicized cases of rape that have led to public outcry and demands for rape-law reform and the protection of women. In this context, the purpose of this study is to assess the extent to which rape myths persist in Indian society and to examine the sources of those beliefs. Based on a survey of 55 items drawn from prior research, a sample of Indian college students (N = 910) showed widespread acceptance of these beliefs. Both male and female respondents endorsed rape myths, though acceptance was higher among males and some items were more accepted than others. Responses to a subset of items included in past studies revealed that students in India agreed with rape myths more than their U.S. counterparts. Finally, multivariate analyses indicated that beyond demographic characteristics, rape myth acceptance was heightened not only by sexist attitudes but also by two measures of criminal propensity–antisocial attitudes and low self-control.

Conceptualizing Consent: How Prosecutors Identify Sexual Victimization in Statutory Rape Cases

ABSTRACTIn the wake of rape law reforms, lack of sexual consent emerged as a key element that defined sexual contact as criminal. Its presence modified the requirement of force or threat of violence, and it gained traction in campaigns to eradicate sexual assault. Little is known, however, about how prosecutors assess consent. In this article, I use the case of statutory rape to better understand the legal construction of sexual consent. By focusing on an age-based class of individuals who are sexually mature but still under the age of consent, I show how legal actors identify sexual victimization among youth. Drawing on interviews with forty-three prosecutors, I analyze prosecutorial decision making during the investigation, charging, and trial phases. I find that sexual consent is not simply a dichotomous legal category but rather a sociological process. Prosecutors define sexual victimization based on informal ideas about normative adolescent sexuality, reproducing social hierarchies based on age, gender, and sexual identity.

The Failure of Feminism? Rape Law Reform in the Republic of Ireland, 1980–2017

Based on Carol Smart's observation that rape law reform as lobbied for by the feminist movement during the 1970s and 1980s failed to achieve any meaningful change, this article seeks to examine the nature and implications of rape law reform in the Republic of Ireland from the 1980s to the present day. During the 1980s the conceptualization of rape changed from a proprietorial crime to a violation of individual bodily integrity due to feminist lobbying efforts and the emergence of a victim-centered approach in the criminal justice system. Though this changing conceptualisation has led to significant attitudinal change, particularly surrounding the issues of acquaintance and marital rape, procedural change has failed to secure higher conviction rates. In particular, this article demonstrates that the legal reforms achieved in the 1980s potentially resulted in a 2% decrease in rape conviction rates by 2007. When compared to England/Wales, conviction rates as distinctive from prosecution rates in Ireland remain chronically low. This indicates that any legal reforms must take account of the institutional bias ingrained the Irish criminal justice system against female rape complainants, which has continuing relevance for Irish legislation pertaining to sexual violence such as the Criminal Law (Sexual Offences) Act, 2017. Overall this article suggests that rape is an exceptional crime and needs to be reassessed as such.

Another story of the Open Letter: an inheritance of relationship-making

In 1979, four law professors wrote the “Open Letter” to the Chief Justice of India (OL). It was written as a way of registering public protest against a decision of the Supreme Court pertaining to the rape of a young tribal girl, Mathura, in police custody. Within contemporary Indian feminist jurisprudential accounts, this text has attained iconic status. The OL has been hailed for mobilising a nationwide women’s movement around the issue of rape and also for initiating rape law reform. In this paper, I move away from the iconicity attached to the OL in the annals of feminist jurisprudence, without disavowing its importance. By locating my reading in a backdrop of our current climate that is saturated with animosities, I attempt to tell a different story about it. I look at how Baxi’s scholarly practice of co-authoring the OL inhabited a conduct of relations with his co-authors, a judge, the tribal girl, Mathura, and his academic discipline of law in a post-Emergency India. In doing so, I weave a story about the OL as an everyday practice of reciprocal relationship-making, in its own time and place. My account of the OL attends to how, by creating reciprocal relations, we might be able to re-organise our worlds into a place that we desire to inhabit.

Marital Rape and the Marital Rapist: The 1976 South Australian Rape Law Reforms

This article charts a genealogy of marital rape law reform in South Australia in the 1970s, arguing that the new laws were based on constructing the marital rapist as a certain kind of man. South Australia is a significant case study, as it was one of the first Western jurisdictions to attempt to criminalise marital rape. Despite South Australia’s generally progressive politics, the legislation was highly contested, and resulted, in the end, only in a partial criminalization. To overcome the strident opposition to rape law reform, we show that supporters explicitly developed a discourse focusing on concepts of sexual normativity and deviance. The marital rapist, it was argued, had deviated from patriarchal standards of masculine decency: this, not the rape itself, was crucial to determining whether his conduct was unlawful.

Governance Feminism's Others: Sex Workers and India's Rape Law Reforms (Introduction)

In Governance Feminism: An Introduction (University of Minnesota Press 2018), I used the concept of governance feminism (GF) to analyse one of the most significant new Indian legislations to address violence against women (VAW), the Criminal Law (Amendment) Act, 2013 (CLA) passed by the Indian Parliament in the wake of the rape and murder of Jyoti Singh Pande in 2012. I argued that Indian feminism has entered a governance mode and is today a crucial part of the law-making process even if significant feminist demands of the state have not materialised. However, GF is not limited to tracking feminist influence in the corridors of state power; state power extends well beyond the juridical into the discursive or governmental realm. How then do feminists relate to or reconfigure feminism given the shift in the state’s political functions from government to governance whereby the state uses both its juridical and discursive powers to govern its political subjects? I consider this question by examining the Indian legal regimes on sex work and trafficking, because these regimes took birth in the crucible of feminist governmentality and have been cultivated by GFeminists ever since. Moreover, since the 1990s, sex workers have been subjects of the state’s governmental power exercised through myriad public health initiatives. By comparing the politics of criminal law reform which informed the strategies of feminists (on rape, sex work and trafficking) versus that of sex workers’ groups (on sex work), I argue that it is only by studying GF’s ‘others’, namely, sex workers that we can fully grasp the political possibilities and futures of GF.

The coloniality of the gaze on sexual violence: a stalled attempt at a South Africa - Rwanda dialogue?

ABSTRACTIn South Africa and Rwanda, the issue of sexual violence has been catapulted into the public sphere in politically charged post-conflict contexts. This article chronicles some of the theoretical, practical and ethical dilemmas that the writer has faced while contemplating research on rape law formation and reform in Rwanda, with an acute awareness of being a Black feminist from a country known to many as one of the rape capitals of the world. Feminist discourses around sexual violence may be grounded in political convictions that this historically invisible aspect of women’s oppression should be spotlighted and included in agendas for criminal and social justice. The writer contends that while feminist scholarship in its plurality is to be commended for stressing the importance of power relations in research, scholars are still not always sensitive to how inter- and intra-group power disparities may adversely affect the interaction between the researchers and researched and the nature of the research itself. Inter-group power disparities may also adversely affect the interaction between researchers themselves. Decolonial thought may provide lenses to make these power disparities even more visible, but it is difficult to say whether decolonial approaches can establish the terms for a more equitable engagement between all the parties concerned.

Marital rape immunity in India: historical anomaly or cultural defence?

This paper will examine the legal position India holds today with respect to marital rape. It will first study how India’s criminal law has been shaped over the years: starting with its colonial common law inheritance from England, and with the development of the criminal law through its inclusion in Macaulay’s Code and continued retention in the Indian Penal Code 1860 (IPC). Outside the IPC, the law has not stood still. There have been recent reforms seeking to advance women’s rights to be free from family violence, such as The Protection of Women from Domestic Violence Act 2005 (PWDVA). After tracing the history of India’s legal responses, the paper will closely investigate the influence of broader Indian culture (claims based on patriarchy and religion) on rape law reform, finally making a case for abolition of the immunity based on the fundamental principle of equality, drawing on arguments from the human rights guarantees included in the Constitution of India, and India’s international legal obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

‘That's What Being A Woman Is For’: Opposition To Marital Rape Law Reform In Late Twentieth‐Century Australia

From 1976 until 1994, Australian states and territories introduced a raft of reforms to sexual assault laws. Most of these were welcomed, and were seen to reflect women's changing status within a modernising society. One reform, however, was especially contentious. The British law had proclaimed that a woman could not be raped within marriage: the marital bond included a husband's right to sexual access to his wife. Following South Australia's lead, all Australian jurisdictions introduced changes to this law, making it a crime to rape a woman within marriage, either before or after separation. It was a fundamental challenge to the way familial authority was conceptualised, established and policed.In a period where feminism had infiltrated many layers of political and social life, we might expect that this change to the law would have been greeted with relief and even celebration. The response to changes to marital rape laws was, however, both muted and ambivalent. Even feminist groups did not offer unequivocal support, and in general public opinion was at best reserved. Further, many conservative groups understood the new laws as an assault on the sanctity of the family itself.Drawing on a wide range of sources in the mainstream and alternative media, as well as parliamentary debates, government enquiries, academic studies and legal reports, this paper will explore the multifarious responses to legislative change. It uncovers the complex ways sexual violence and female bodily autonomy were understood within and beyond the borders and boundaries of the home and family.

Sexual Scripts and Criminal Statutes: Gender Restrictions, Spousal Allowances, and Victim Accountability After Rape Law Reform.

The author provides a mixed-methods assessment of U.S. rape statutes to assess progress in reform. Contemporary statutes offer restrictive frameworks for distinguishing criminal from noncriminal sexual violence, many of which are grounded in gendered and heterosexist assumptions. Fourteen states retain gender restrictions in rape statutes. Twenty maintain marital distinctions that limit accountability for spousal rape. Furthermore, whereas explicit resistance requirements have been eliminated nationwide, implicit resistance expectations manifest through emphasis on physical force and involuntary intoxication. Analyses conclude with recommendations for further legal reform and a discussion of the potential for legislation to affect broader social perceptions of rape.

Rape Politics, Policies and Practice: Exploring the Tensions and Unanticipated Consequences of Well‐Intended Victim‐Focused Measures

AbstractThe inability of the criminal justice system to respond effectively to rape has led to numerous law and policy reforms in England and Wales. Nevertheless, difficulties remain, with problems often linked to the impact of rape myths and implementation failure. This article, however, adopts a different lens through which to explore the ongoing challenges faced by rape complainants. Drawing on interviews with 14 barristers in the north‐west of England, the article asks: how have rape law and policy reforms impacted practice for this group of practitioners? The findings highlight that numerous tensions emerged from these reforms. In particular, measures that were perceived to be politically driven and well intended were often perceived to generate unanticipated negative consequences for complainants, as opposed to improving their experience. In concluding, we emphasise the importance of a close working practice between the policy maker and practitioner, in order to institute more effective responses.