[AUTHOR’S PRE-PRESS VERSION]
REVIEW
Rethinking Rape Law: International and Comparative Perspectives. Edited by Clare McGlynn and Vanessa E. Munro (Londen: Routledge, 2010. 368pp. £27.99 paperback)
In 1998, the Akayesu judgment of the International Criminal Tribunal for Rwanda (ICTR) not only acknowledged that rape can constitute genocide and war crimes, but also introduced a pioneering definition of rape in international law. This definition is not based on non-consent, but rather on the presence of coercive circumstances (‘a physical invasion of a sexual nature, committed on a person under circumstances which are coercive’).[1] Many thought that this definition had the potential to lower the burden of proof and make future convictions easier. Prompted by the fact that the ICTR definition had in fact not taken root in subsequent international judgments, Durham University hosted a conference in 2008 that took the tenth anniversary of Akayesu as ‘a spring-board to rethink rape law, from national, international and European perspectives; to review current strategies and to debate ways forward; and to consider the role of women and feminists in bringing about change’.[2] The varied collection of essays in Rethinking Rape Lawemanated from this conference. What the title does not reveal however, are the corresponding feminist goals and the overall feminist approach, which might come as a surprise to those who arenot familiar with the work of the editors. Is that approach problematic? The answer is yes and no.
After a foreword by Navanethem Pillay (former ICTR judge and the only female judge in the Akayesu case) and an introduction by the editors that makes no secret of the feminist agenda, the book’s twenty-two short chapters unfold in four parts: ‘conceptual and theoretical engagements’, ‘international and regional perspectives’, ‘national perspectives’ and finally ‘new agendas and directions’.
In the first part, Vanessa Munro discusses the different legal conceptualizations of rape, highlighting the shift from coercion-based definitions to consent-based definitions and the apparent return to a coercion-based definition in Akayesu (albeit new in international law and used against the specific background of armed conflict). Munro is not in favour of redirecting the domestic definitions of rape towards coercion. But she believes that consent-based definitions need enrichment as to the meaning of consent, in order to make more room for contextual considerations.[3]This ‘consent-plus’-model demands that a token of consent must be accompanied by a ‘critical endorsement of a reciprocal benefit (be it emotional, relational, physical or even material)’. Her model also imposes a procedural insistence on ‘reflection about the reasons that underpin, constrain, construct and motivate our choices’.[4]
Jonathan Herring and Michelle Madden Dempsey conclude the first part, restating their analysis that sexual penetration is a prima facie wrong in need of justification.[5] While this is thought-provoking, the three underlying arguments (physiology and required force, harm and risk of harm, and the social meaning of penetration)[6] seem weak if not almost absurd. In their view, even perfect consent does not fully justify sexual penetration. This represents a potentially highly patronizing model in which, for example, penetration between consenting porn-stars or even penetration between consenting adults that involves ‘filthy language’, is in need of justification, because of the mere fact that the nature of these actions is – as the authors put it – ‘disrespecting their humanity’.[7]Applied to criminal law, the model might not be as black as it seems. On the face of it, Herring and Madden Dempsey put up firm boundaries for the criminalization of sexual penetration: prima facie wrongful conduct may only be criminalized in a society if that conduct is not typically justified. For that reason, the legislator ‘must inquire as to whether the prima facie wrongdoing in question is typically justified in their society’.[8]Yet, this still appears to be a topsy-turvy world, because they imply that by default it is not typically justified. Overall, it is a disconcerting thought that this model could ever find its way into sexual offences legislation.
In part two – ‘international and regional perspectives’ – Alison Cole starts off with an insightful overview of the developments in the way international tribunals (are able to) treat cases of mass sexual violence. Doris Buss complements this by giving special attention to the ICTR. These two essays demonstrate that, although progression has been made in the substantive and procedural law of international tribunals as well as in their case law, various difficulties still arise in practice, such as lack of political will, inadequate investigations and defective indictments. What seems to be missing in Cole’s contribution, is an analysis of rape as articulated in the Statute of the International Criminal Court (ICC) in conjunction with theElements of Crimes Annex, Article 7(1)(g). Here, rape also exists when the (broadly defined) ‘invasion’ of the body was committed ‘by taking advantage of a coercive environment’. Given the significance of Akayesu for Rethinking Rape Law and the extent to which it has been contrasted with other existing definitions of rape, it would have been interesting to see whether Cole believes Akayesu is covered by the ICC definition.
Against the backdrop of ICTR cases, Karen Engle and Annelies Lottmann go into ‘the force of shame’. They argue that shame is an important component of the harm of rape, as well as the force that makes victims hesitant to testify, making it necessary for prosecutors to coax witnesses and ‘manage shame’. The next two chapters focus on rape in peacetime and on the question to what degree this so-called ‘everyday rape’ can constitute a human rights violation. Alice Edwards tackles this issue in the broad context of human rights law, while Patricia Londono examines the European Convention on Human Rights (ECHR). Both authors emphasize that, even though there are promising initiatives on the way, the (woman’s) right to be free from violence is still not a well-developed, independent human right. It is always a part of more encompassing rights, like rights against discrimination, torture and inhuman treatment. According to Edwards, this disadvantages women by subjecting them to additional, different or unequal criteria.[9] Londono also gives her assessment of the MC v Bulgaria case of the European Court of Human Rights (ECtHR), in which the court uses a consent-based definition of sexual offences.[10] Londono is sceptical about the extent to which non-consent can be said to include non-violent means of influence, such as economic pressure and social inequality in sexual relationships. But, similar to Vanessa Munro, she states that ‘coercive circumstances’ as the defining principle is even vaguer and thus there is a ‘difficulty translating it into domestic non-conflict systems where the circumstances in which coercion is sufficient to ground liability for sexual offences are less clear’.[11] The second part of the book is completed by Heléne Combrinck, who offers an outline of relevant legal reforms in Africa, both national and multilateral. She points out that many African countries are still affected with cultural features that facilitate gender-based violence and that sexual violence seriously weakens the ability of African women to protect themselves against sexually transmitted diseases, including hiv/aids.[12]In general, regarding the African continent, Combrinck detects a ‘gathering of significant cumulative momentum’ to address violations of women’s rights.[13]
The third part of the book (‘national perspectives’) assesses sexual assault law in England and Wales (Clare McGlynn), Scotland (Sharon Cowan), Croatia (Ivana Radačić and Ksenija Turković), Italy (Rachel Anne Fenton), Sweden (Monica Burman), Canada (Lise Gotell), America (Donald Dripps), Australia (Peter D. Rush) and South Africa (Shereen W. Mills).
The book’s subtitle carries the phrase ‘comparative perspectives’, but comparing the ‘national perspectives’ is something that the reader has mainly to do himself. There is an extremely short comparative overview in the beginning of the book (the introductory chapter) and only some authors in part three refer to some other countries. For the sake of one’s own comparison then, it is convenient that all essays in this part more or less follow the same structure, providing the country’s historical and political context, analysing the present law and finally identifying current issues. In portraying the historical and political context, most authors express the importance of past feminist activities in making law reform become reality. The essays also supply the reader with meaningful statistical information on rape (concerning prevalence, reporting rates, ‘no-criming’ by the police, conviction rates and general attrition). These numbers imply that rape is still one of the most underreported violent crimes (if not the most) and that conviction rates are very low.
The countries which are discussed show similar developments in the area of criminalization. Coming from historically narrow definitions of rape – offering marital rape exceptions and requiring penile/vaginal penetration, the use of force by the perpetrator and resistance by the victim – most countries have progressed into broader definitions that are gender-neutral and cover different forms of penetration. Some countries also removed strict procedural rules[14] and implemented new procedural provisions shielding the complainant from aggressive counter-attacks by the defence. The definition of rape in England, Wales, Scotland, Canada, Australia and South Africa is now primarily based on absence of consent (while use of force can be an aggravating circumstance), whereas Croatia, Italy and Sweden have stuck to a coercion-based definition (of which Italy and Sweden give a broad interpretation to coercion).[15] American states still mainly have forcible rape provisions, with some states recognizing sex without consent as a lesser-included offence of forcible rape.
Looking at the analyses in this part of the book, it is intriguing to see that the amount of criticism that consent-based systems are receiving from the respective authors, does not seem much less than the criticism on coercion-systems. This can probably, at least in part, be attributed to the fact that key issues in consent-based systems (what exactly amounts to non-consent and how is it proved?) are not really new. In the coercion-based system – the forerunner of consent-based systems – consent plays an important role as well, based on the premise that consent negates coercion and vice versa. The only clear-cut difference is that, conceptually speaking, consent-based systems offer a more extensive and straightforward protection of sexual autonomy, because they do not require coercive circumstances. However, it is obvious that the less violent instances of non-consensual sex are, the harder it generally will be to prove that consent was lacking. In cases of non-violent non-consensual sex, it therefore does not really matter whether they are peripheral-but-covered cases in a coercion-based system or centralcases in a consent-based system; they will be hard to prove either way. In addition, there are examples that present hardcases for both systems, like the drug addict who has sex with her source to ensure a continued supply, the abused spouse who initiates sex to pre-empt a feared beating and the quid-pro-quo employment cases.[16] Many authors seem unwilling to accept these truths. On the contrary: on numerous occasions it is implied that a good way to fight rape and raise convictions rates, would be to reduce the requiredmens rea standards even more. This suggestion would not seem so baffling, had it been followed by the explicit endorsement of different categories of sexual offences with, for example, negligence being a less serious crime and having a less serious penalty.[17] This at least would recognize paramount principles of criminal responsibility, like proportionality. Yet there is little trace of such an endorsement. Another indication of not accepting the aforementioned truths, is the desire to have the actus reus of rape extended, so as to cover ‘forced choices, precluded options, constrained alternatives, as well as adaptive preferences conditioned by inequalities’ (Shereen W. Mills quoting Catherine MacKinnon).[18] This corresponds to Munro’s instruction to reflect on ‘the reasons that underpin, constrain, construct and motivate our choices’ and Londono’s remarks on economic pressure and social inequality, as mentioned above. I assume that what is essentially meant by this, is concealed, subtle coercion; a conditioned ‘yes’. In my view, Robin West has accurately addressed the aspect of ineffective labelling that is attached to this approach in the context of criminal law:
[E]nding rape, through a more aggressive use of the criminal law, will not fundamentally return sex to women. Economic exploitation of laborers is not the result of a state’s underenforcement of laws against theft, and likewise, sexual exploitation is not the result of the state’s underenforcement of laws against rape. By conflating the problem of exploitative and expropriated sexuality with the problem of rape, we engage not only in conceptual confusion but also strategic misdirection. Much of third-wave feminism … although arguably vital to ensuring women’s safety on the street, might be oversold as a means to ensuring women’s equality and an end to their sexual exploitation. We do need to address the conditions, states of mind, and social structures that so overwhelmingly prompt, suggest, or compel women to consent to sex they don’t desire or want: That is the deepest, most vital, and most profoundly historic claim at the heart of MacKinnon’s reconstruction of radical feminism. That sex, however, is not rape, and we don’t come any closer to addressing it by calling it what it is not.[19]
Rachel Anne Fenton (Italy) and Donald Dripps (America) are two of the few authors that appear to recognize the importance of fair labelling.[20] Putting sexual offences in a catchall-provision will understandably encounter opposition and do more bad than good, particularly if everything is called ‘rape’.[21] Furthermore, I strongly doubt that the proposed aggressive use of criminal law is even attainable. Firstly, we are talking about situations where the victim may characterize her own consent as free and voluntary, since violations of ‘positive freedom’ often go unnoticed to the person whose positive freedom was violated. Secondly, the forces at work in this kind of indoctrination are generally not only going to be the ‘sex-receiving’ husband or boyfriend, but also family members, friends, peers, the community and society as a whole. Individual criminal culpability will be absent in many cases. Thirdly, even if the acts of one individual can be said to be the cause of the presumed harm, the gathering of evidence of subtle influence over the course of years (and of mens rea thereto), will be too cumbersome, if not impossible. Finally: who is to point out the victim? If a grieving widow is consoled by a male friend and this leads to sex, did he take advantage of her vulnerable state or did she take advantage of his reluctance to say ‘no’ in fear of hurting her even more? If a rich man has sex with a consenting underprivileged woman, is he exploiting her neediness or is she exploiting his wealth? Without wanting to marginalize the usual dynamics of inequality, I find it difficult to say that, a priori, only one of the two people involved has the right to have genuine, ‘rich’ consent.
Part four is called ‘New agendas and directions’, but appears to be more like a residual category. The essays are very interesting nonetheless. Fiona E. Raitt demonstrates that offering the complainant the right to have independent legal representation may be an effective strategy to combat secondary victimization, especially in adversarial systems, in which the defence has more room for extreme counter-tactics. Louise Ellison and Vanessa E. Munro discuss these tactics in the next chapter, focusing on the defence lawyers’ tendency to portray normal victim behaviour as unusual or inconsistent. Lawyers may point out that there was a large delay in reporting and that there is no evidence of physical resistance or injury. If the complainant is also very calm while recounting the events at trial, all of this together might trigger disbelief with the jurors. Yet, the authors stress that delayed reporting, absence of resistance and calmness as a coping strategy, are in fact quite common. According to the authors, jury-systems should therefore adapt educational guidance in these matters. This conclusion is undoubtedly very valuable for combating undue scepticism and rape myths in the courtroom. On the down-side however, neutralizing any ‘habitual incredibility’ of a certain factor, will not, and should not, make that factor into a determinant of credibility. For example, the acknowledgement of the effect that stress disorders can have on memory[22], means that one should not immediately disregard testimonies just because they are incoherent or inconsistent, but it does not imply that those testimonies are generallycredible because of their incoherence or inconsistency. This distinction is visible in the Furundžijacase of the ICTY, in which the Trial Chamber recognized the role of post-traumatic stress disorder and found that ‘inconsistencies may, in certain circumstances, indicate truthfulness and the absence of interference with witnesses’.[23]