Rape Law Research Articles

It could be my son! ‘Himpathy’ and the male fear defence in rape trials

AbstractWhy do legal professionals mention their sons when discussing a new consent‐based rape law? Drawing on feminist legal studies and sociology of emotions, this article investigates a discourse of male fear of rape accusations among Swedish legal professionals and how defence lawyers strategically employ it. The analysis shows that a male fear defence is deployed to evoke a specific kind of sympathy termed ‘himpathy’ among judges. The male fear discourse serves as a himpathy resource to problematize the implications of the new rape law and to explain irrational behaviour from men accused of rape, instilling doubts about the complainant's credibility, suggesting false accusations, and creating an imagined ‘ruined’ future for the accused man if convicted, including his and his relatives’ shame over the rapist stigma. The findings highlight the role of background emotions in legal practice concerning rape and how the law remains ‘himpathetic’ despite radical consent‐based rape legislation.

“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.

Rethinking the Scope of Sexual Violence for Criminal Law Reform

Rape survivors are mostly women, and the perpetrators are mostly men. So, it has a social and cultural dimension. In the article, the problems regarding rape law are shown from the angle of the female rape survivors. The paper discusses how rape is interpreted in Georgian criminal law practice and why one paradigm of rape prevails to this day - a male stranger and a fighting woman who physically resists the perpetrator. Criminal law sets the standard of the “ideal victim’’ for a woman, the “rational” rules of action during rape; in particular, it determines what the “typical behavior” is for a woman before, during, and after sexual violence. If the female rape survivor’s response does not fit into this standard, she remains outside the legal system; her voice is suppressed and disbelieved by the justice. The paper critically examines the Georgian legislative and judicial definition of rape; However, the research is not limited to this; it also includes an analysis of the approaches and scientific views of other jurisdictions. The paper supports a liberal understanding of sexual autonomy and consent. The goal of the paper is to show the essence of non-consensual sexual violence and its superiority compared to the old rape law.

Application of statutory rape laws on male adolescents: Perspectives from police and probation officers

Application of statutory rape laws on male adolescents: Perspectives from police and probation officers

The Experience of Sexual Desire Among Male Adolescents in Malaysia Detained for Sexual Intercourse with an Underage Partner: An Exploration Using the Incentive Theory of Sexual Motivations

Abstract Introduction In Malaysia, statutory rape laws are used to charge male individuals who engage in sexual intercourse with underage females, including on male adolescents who engage in sex with their female peers who are of similar age, but underage. This view that criminalizes sexual behavior among male adolescents raises the question if their sexual behavior should be considered sexually deviant. Methods To explore this question, this qualitative study conducted in-depth interviews with 19 adolescents who were detained for sexual intercourse with their underage partner, guided by the Incentive Theory of Sexual Motivations. Interviews were carried out between April and July 2023. Results Thematic analysis demonstrated that various parts of the adolescents’ experience in sexual desire and excitement seemed to be normative, although a few respondents exhibited deviance in terms of age interests, the use of substance in enhancing sexual experience, and the propensity of aggression. Conclusions The findings of this study highlighted the nuances of sexual behavior among male adolescents, particularly with similar-aged partners who happen to be underage. Policy Implications This study highlights that sexual relationships between adolescents who happen to be underage should not automatically be regarded as deviant. This has important policy implications, particularly concerning the enforcement of statutory rape laws on male adolescents, which effectively criminalizes their sexual behavior.

Breaking the Silence: Unveiling the Gender-Neutral Perspective on Rape Laws in India

Breaking the Silence: Unveiling the Gender-Neutral Perspective on Rape Laws in India

The wave of consent-based rape laws in Europe

After years of feminist struggle, international conventions, and the #MeToo movement, consent-based rape laws have rapidly been replacing coercion-based laws across Europe since 2017. In May 2023, we identified 20 European consent-based rape laws, and more were in progress. This article analyses the emergence and convergence of these laws, drawing on the theory of institutional isomorphism. The analysis is based on a collection of criminal codes, draft laws, news articles, previous research, and input from national experts. We map a timeline of consent-based rape laws in Europe and describe their key elements, identifying patterns such as international pressure, influential countries, civil society impact, and cases of sexual violence triggering national debates preceding legislative changes.

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.

My Body Is My Temple? Comparing Sexual Crimes and Property Crimes in a Human Rights Tradition

AbstractDespite recent criminal law reforms to define rape through the lack of consent, practical questions remain about how to regulate different kinds of violations of sexual autonomy. Many common law scholars have found it eye-opening how much more extensive and easily accepted the protection of property rights is compared to the protection of sexual autonomy. But when the rationale of criminalization resides in human rights, such a comparison is alien; protecting human dignity appears separate from protecting instrumental property rights. Considering rape a subversion of our ownership rights to our bodies (the property model of rape) is rightly regarded as problematic. This article argues that comparing sexual crimes and property crimes is not predicated on the property model but rather on autonomy itself. Comparisons based on autonomy could help resolve practical dilemmas of consent-based rape laws while respecting human dignity and thus be fruitful research pursuits within a human rights tradition.

Amendments to rape laws after independence

Amendments to rape laws after independence

Breaking the Silence: The Urgent Need for Inclusive Rape Laws in India to Protect Men-Insights from the Movie 376 D

Breaking the Silence: The Urgent Need for Inclusive Rape Laws in India to Protect Men-Insights from the Movie 376 D

Sexual Consent and Epistemic Partiality in Rape Fact-Finding

Feminist legal theory has contested rape laws and notions of sexual consent to better reflect the experiences of survivors and address power distortions in legal frameworks that perpetuate women’s subordination. In this paper, I explore an alternative form of criticism to consent-based rape laws and biases within legal systems. I argue that the justifications that are used to select and weigh evidence in rape cases are epistemically suspect because of the unreliability of their epistemic sources. My argument, building on radical realist social analysis in political theory, aims to unveil an epistemic defect in rape evidentiary procedures, which I call epistemic partiality. I suggest that this epistemic defect brings salient reasons to challenge rape laws based on ideals of consent. I hope to show that a radical realist approach may bring reasons to challenge rape laws and flaws in evidentiary systems without the need to centrally agree with or rely on feminist commitments and political goals. This type of criticism may effectively bypass certain limitations of feminist theory and potentially add to discussions focused on power distortions within legal systems.

Resistance, rape, recognition, and aggression

During the 18th and 19th centuries, the common law of England solidified a masculine ideal of feminine resistance that required women to resist if they were to be recognized as victims of rape. This essay seeks to understand this conception of resistance that is racialized, largely violent, normative, and patriarchal. It also attempts to explain why this conception of resistance would be adopted as a condition for proving a criminal act. The second half of the essay argues that this patriarchal conception of resistance plays an important role in Michael Walzer's account of international recognition and aggression. The sorts of pressures that may explain the inclusion of a patriarchal resistance in the law of rape may also be in play in the case of these international norms. Resistance has an underbelly which calls for our vigilance even as the term is employed in the arduous struggle for freedom.

Why Rape Law Revisions should be Consistent with Anderson’s Negotiation Model

In this essay I argue that the current law structure unobjectionably fails to protect women against cases of rape and needs reform. I further maintain that Anderson’s suggestion of ‘negotiation consent’ is the most appropriate line of reform, and I will defend her proposal in the face of potential objections. The current rape law in the UK was implemented in 2003, which revised previous laws firstly defined in the Sexual Offenses Act of 1953. Despite the ostensibly ‘objective’ nature of this law, which will be further examined in this essay, many feminist philosophers have noted the biases within the law which favour male interests. This essay explores the present issues within UK law, as well as our current understandings of what constitutes ‘a reasonable belief of consent’, that fail to protect women in instances of rape. This foundational attitude towards such matters influence performative revision models, such as the No Model and the Yes model, which I consider within this essay. Yet the inadequacies of such approaches, as I demonstrate, mirror some of the current issues with rape law in the UK today; such as the lack of recognition of men’s frequent inability to interpret women’s nonverbal behaviour and disregard for instances where one person changes their mind.
 Furthermore, I advocate for Anderson’s proposal of the negotiation model as an alternative reform of the law as well as society’s attitude towards sex and how consent can be clearly obtained. This model, when legally applied, will not only legally protect women in cases of rape, but eventually protect them from the present societal norms that perpetuate the imminent risk of rape and sexual exploitation.
 Through making the act of negotiation a legal requirement, I maintain that there would be a ‘ripple effect’ throughout society that would, eventually, lead to a change in public expectations of men and women.
 Anderson’s emphasis on either party being able to initiate the negotiation establishes a much more open-minded attitude towards gender roles and expectations of individuals based on their gender. This is the greatest strength of Anderson’s argument, as this equality-driven initiative would eventually seep into society’s wider expectations of individuals when initiating sex, and create a world where understanding what the other person is anticipating in a sexual situation is the norm.

Drafting New Rape Law

Drafting New Rape Law

Intoxication Evidence in Rape Trials in the Country Court of Victoria: A Qualitative Study

Although long associated with incidents of sexual violence, evidence of alcohol and/or other drug (‘AOD’) consumption and intoxication continues to present challenges for the enforcement of rape laws and justice for victim-survivors. This article reports on the findings of a transcript analysis of 33 Victorian rape trials involving evidence of complainant and/or defendant intoxication. Statutory provisions designed to break the culturally-assumed nexus between intoxication and consent were rarely relied upon by the prosecution. Complainant intoxication evidence was more likely to be engaged by the defence to challenge the Crown’s ability to prove the elements of rape, sometimes by invoking the intoxication/consent nexus, but more commonly by suggesting that the complainant’s account lacked veracity because their recall was tainted by intoxication. Trials could have benefited from expert evidence on AOD effects, including with respect to cognitive functions like consent formation and memory.

State, Islam, and Gender : Dynamics of Marital Rape Law in Indonesia

Marital rape, which is an act of sexual violence in marriage, is often debated among the public because it is considered an act that is impossible to happen. There is debate about responding to acts of marital rape among the community, which is the background for writing this article in a review of positive law, Islamic law, and gender justice. The purpose of this research is to understand and analyze the dynamics of rape marital law in Indonesia according to positive law, Islamic law, and gender. Using a qualitative method with a normative legal approach, this paper describes and analyzes the laws, books, and articles related to this research. The results found from this study are that marital rape is included in the crime of sexual violence, although it is not explained in detail regarding the criminal sanctions for the perpetrators. This shows that Indonesia's positive law has not touched on marital rape in detail. Marital rape is not justified in Islamic law; this can be seen from the verses of the Quran, which emphasize a good relationship between husband and wife. Based on gender justice, it is the wife who becomes the victim of marital rape because the husband thinks that he is at a higher level, so the wife must obey her husband's orders because it is an obligation, while the husband ignores the wife's rights.
 

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.

Physical Elements of Rape under the Core Criminal Laws of Malaysia, Singapore, Pakistan and Australia: A Comparative Review

Rape is a crime that invades the human body, degrades victims, offends the conscience of humankind, and causes physical, mental and reputational damage─ sometimes leading to tragic deaths of many innocent lives resulting from forceful transgression by perpetrators or deliberate cruelty inflicted by their own family members in the name of “honor killing”. Rape is a global problem, and one that is increasingly rising in Pakistan and Malaysia. Viewing one’s law through the lenses of others, this article critically examines the rape laws of Pakistan, Malaysia, Singapore and Australia (NSW), all of which inherited their laws from the common colonial rule of the British Empire. It finds that Pakistan and Malaysia are still largely reliant upon their archaic penal codes, whilst Singapore and Australia have brought about fundamental new changes in their laws. Although the laws of no country could be claimed to be flawless, it is clear that the reforms adopted by Singapore and Australia have transformed their laws into a more practical and comprehensive formulation compared to those of the other two. This article identifies the loopholes in the physical elements of the offense existing in the laws of the selected four jurisdictions to varying extents, and it submits specific suggestions for legal reform in order to protect their respective societies from the perils of a heinous crime. Against the backdrop of the passivity of the governments of Pakistan and Malaysia in reforming their rape laws with respect to physical elements and recent increase in the incidents of this offense, this article attempts to address the deficiency and impotence of their present laws in light of their equivalents with the latest amendments in Singapore and Australia. Such a comparative and comprehensive analysis does not exist in the current literature, this is where the significance of this research lies. Although the recommendations are tailored to assist in overhauling primarily the laws of the chosen jurisdictions, these can also be utilized by other nations where laws on rape are deficient and ineffective in preventing and punishing the crime. Keywords: Rape, Actus Reus, Pakistan, Malaysia, Singapore, Australia DOI: 10.7176/JLPG/132-01 Publication date: May 31 st 2023

A critical analysis of the standard of consent in rape law in India

This article critically analyses the standard of consent in rape law in India by engaging in a doctrinal analysis of the current jurisprudence. It also analyses various extraneous circumstances influencing the determination of consent in Indian rape law. The article will then assess the status of consent jurisprudence and related issues in the English and Canadian jurisdictions for a comparative assessment. Thereafter, it will critically assess the arguments in favour of an affirmative standard of consent before concluding with possible solutions for better interpretation of the law in determining consent by courts during rape trials in India.