This article originally appeared in T&S Issue 35, Summer 1997.
Feminists exposed rape as a violent crime against women in the 1970s and took to the streets to protest against it. Since then there has been less feminist activity around rape. Kate Cook makes the case for giving rape a higher priority and discusses a new campaign for changes in the law.
Once upon a time, when women were raped, it was assumed that the rapists were perverts, who jumped out of bushes (or alleyways), wearing dirty raincoats (or anoraks) and needed to be locked up (or perhaps have their tackle chopped off).
Then, along came the Women’s Movement, and said STOP! Rapists are just men, nothing else. They operate in women’s houses, in cars, in pubs, in fact anywhere. They have wives, daughters, girlfriends, sisters, mothers and aunts. And often these are the women they rape. They also know women who are their friends, neighbours and colleagues. And sometimes these are the women they rape.
We said, rape is not just a sexual act, but an act of violence, we talked about links between rape and other forms of violence against women and girls; domestic violence; sexual abuse and sexual harassment. We said, these are not isolated crimes, these are parts of the fabric of women’s lives, and they all act to keep women, individually and collectively, under men’s control.
Then along came the 1990s, Camille Paglia, post-feminism (post-everything), the men’s movement and inter-agency domestic violence working parties. Domestic violence has hit the big time. Local councils know they must take action against it, so do the police, and they are all busy setting up committees to discuss joint working. Admittedly the rest of the criminal justice system is lagging some distance behind. And some of these working parties do not seem to achieve very much. However, domestic violence does now have a high public profile, and there are still feminist groups, working for change — Justice for Women and the Women’s Aid Federations are just examples.
But, what happened to rape and sexual assault?
In November 1996, on the eve of the national march for the International Day of Action to End Violence Against Women, I spoke to a local radio journalist. We were talking about the march, and she suddenly interrupted me: ‘but your march isn’t just about violence against women, is it?’. I was thrown, I paused, and then the light dawned. Rape, sexual harassment, sexual assault and sexual abuse, were not ‘violence’ in her mind. It became apparent to me then that something had gone seriously wrong. In the months that have followed, I have realised that this is a common perception, that for much of the media and many individuals domestic violence is domestic violence; rape is rape; sexual abuse is sexual abuse; and they all live in separate places, never meeting and never connecting. Where is the feminist voice to put this right?
Meanwhile, the last year has seen a number of high profile rape cases and plenty of media comment about women getting a raw deal in court. Last summer there was an outcry when a woman was cross examined for days on end, by the man who raped her, wearing the same clothes as he had when he raped her. By the time you read this, there may well have been other atrocities.
What strikes me, on each of these occasions, is that there is a sad lack of a radical feminist organisation who can take the issues up, and ensure they’re not forgotten. I ask myself again, what has happened to campaigns about rape?
So, it seems timely to revisit rape, to look back at earlier campaigns and at the changes women called for in the past, to review how much has been achieved, and to try to find a way ahead.
Now, I wasn’t involved in activism until the late 80s, but I know that in the 70s there were lots of feminist actions on rape. Concerns about rape were part of what motivated ‘Reclaim the Night’ marches (and come to think of it, why don’t we have those any more?) and Women Against Violence Against Women (WAVAW) groups. Courts were picketed when judges made offensive comments — now, we just seem to shrug our shoulders. And this happened sometime in the 1980s, somehow rape stopped being a priority.
In the early years of the 1970s, women began to get together to set up rape crisis centres (RCCs) around the country. The women who set these groups up knew that attitudes and legal responses to rape needed changing, and in the early years many undertook some form of campaigning and/or public education work. Funding has been an ongoing problem, some local authorities have provided (limited) funding to their RCC, but others consistently refuse to, and there is no statutory requirement to provide support to rape victims. Consequently, most RCCs have become dominated by the effort to support women. In 1984 the London Rape Crisis Centre published Sexual Violence: The Reality for Women, in which they list ‘what we do’ (pp.122-126), noticeably campaigning is not on the list. Since then, of course, London RCC have had severe funding problems, and the continued existence of the group is a tribute to women’s determination to provide support to other women, no matter what.
I worked in a rape crisis group for five years, and I know that women in rape crisis groups work very, very hard. However, women contacting us often complained about how long it took to get through on the phone, and were very (reasonably) disappointed when they heard that there was a waiting list to see someone face-to-face. The group I was part of always wanted to have a campaigning profile, but it just never seemed possible to spare the time.
Until this year, British RCCs were entirely autonomous, with no national office or national workers. However, a national federation has recently been launched covering England and Wales, and co-ordination is developing in Scotland. It would be wonderful to see that federation take up the task of campaigning for change once again, and the initial signs are encouraging.
For most of the 1980s (and into the 90s) virtually the only consistent voice in debates about rape has been Women Against Rape. WAR are a small group, part of the Wages for Housework network, based at the Kings Cross Women’s Centre. Unfortunately WAR have never been interested in making links with other groups or organisations and from the stories women have told me, I gather that their actions destroyed the emerging Marital Rape Campaign, in the early 1980s. Looking back it is particularly sad that the Marital Rape Campaign group folded, since it had the basis for forming a powerful coalition between Rape Crisis, Women’s Aid and other groups such as Rights of Women.
Whatever the exact causes, by the end of the 1980s rape had become an ‘unfashionable’ issue for campaigners, and it is clear from the success of Justice for Women that these days campaigns work best when one group of women dedicate themselves to it, and others (those providing services) can link in. The only exception to the feminist silence around rape in the 1990s has been the Zero Tolerance (ZT) Campaign, which has made rape a central theme in their public education materials. But even here many local authorities have tried to persuade ZT (unsuccessfully) to let them run only the domestic violence elements, and some who have run the campaign have publicly represented it as a ‘domestic violence’ campaign.
And now for the good news — in November 1996, at the International Conference on Violence, Abuse and Women’s Citizenship, a new campaign on rape began to emerge. This group (provisionally called Campaign to End Rape) have decided to begin by focusing on the law and so, in what follows, I will concentrate on the legal process; because that is where the public (or at least media) focus is; and because there is so much scope for change and improvement.
Changing the law, changing the world
It is easy to see that changing the law does not change the world. We have an Equal Opportunities Act, but we surely don’t have equal opportunities. To get real equal treatment we need to see a major shift in attitudes to women and work. To get justice for women who have been raped, we need to see a similar shift in attitudes about what rape is, who rapists are, and who can be raped, where and in what circumstances. In short, we need to change the world.
But how do we change the world? That, of course is a vexed question, and I am not going to discuss the likelihood of revolution in the foreseeable future. However, even discounting an armed struggle there may well be as many answers to the question ‘how?’ as there are T&S readers!
Some of those answers might include things like: lobbying political parties, trade unions and employers; public education and education in schools and colleges; getting the media to cover the issues responsibly and so on. Changing the law in itself does not necessarily achieve any of these other things, but a public campaign around the law on rape could influence each of these other areas, in the same way as Justice for Women’s work has, for women who kill abusive men.
In 1989 Rights of Women published an excellent book, Sexual Violence and the Law, which explains how the law works, reviews it (as it was then) and discusses possible reforms. An updated version would be an invaluable resource for everyone who cares about rape and the law. In looking at possible changes, the authors acknowledge they are drawing heavily on Jennifer Temkin’s Rape and the Legal Process. Both books look at piecemeal and radical reforms, and before we see what those reforms were, I want to consider these different approaches to law reform.
In one leap or bit by bit?
There can be a real tension amongst campaigners interested in reforming the law (in various areas) between those who think that it is best to proceed little by little, in a piecemeal fashion and those who want to throw out the rule book and start again, with radical rewritings. So, we have returned to the same question of how to change the world, and to the same tension between gradual change, and revolution.
Piecemeal reform is arguably more achievable as it does not involve any fundamental change in the legal process, and this has been strongly argued since, in England and Wales particularly, we have a legal process and institutions which are adept at resisting radical change. Yet we have seen radical legal changes this century, most clearly in our membership of the European Community, which has meant that (admittedly only after over 20 years of membership) the English courts have had to admit that final legal authority (in limited areas) has now been handed over to the European Court. So, it seems reasonable to ask, what creates radical change? In the case of membership of the EC, the answers seem to be economic and political pressures, including (initially) public opinion.
It seems possible then that radical change can, at least in part, be created out of public opinion. However, if we keep in mind the broad aims of a campaign to change the law, which I have already discussed, then a campaign for radical reform has a further advantage. It enables campaigners to open up a wide-ranging debate about what is wrong with the current system, and thus enable the public to know just how different the geography of real rape is from the myth laden version they have been led to believe from childhood.
Having said this, maybe we need to reconsider the definition of ‘piecemeal’ reform. The liberalising reforms of the 1960s included the legislation on abortion and homosexuality. Both those laws made immense differences in many women and men’s lives at the time and since; they can be said to have changed the world, albeit in a limited way. Debates about when and how to address the law form one of the major themes in feminist jurisprudence. Some women argue that to create and enact laws which reflect women’s interests and experiences is a form of feminist activism, which whilst changing the law, transforms it at the same time. Making feminist law challenges the power of men to define and regulate women’s lives and experiences.
Rape in Marriage
One of the piecemeal reforms which the ROW book discussed was that ‘husbands who rape their wives should no longer be exempt from liability for rape’ (p51). This of course was an area where what Professor Glanville Williams has termed ‘our warrior feminists’ (which I think he imagines to be an insult!) fought long and hard — and won. The rule was that married men could not rape their wives, since marriage took away the woman’s right to withhold consent. This was defended by men like Glanville Williams with arguments such as that, ‘a charge of rape is too powerful (and even self-destructive) a weapon to put into the wife’s hands’ (p206). At the culmination of a long line of cases, which gradually eroded the old rule, the House of Lords eventually decided in 1991 that rape in marriage was indeed a crime. This has since been enshrined in statute, within the new definition of rape in the 1994 Criminal Justice and Public Order Act. So, radical feminist campaigning did create a (piecemeal) reform of this part of the criminal law.
Does this matter? Has it made any difference to women? It certainly has not meant that women are flooding the courts with cases against their (rapist) husbands. It is well documented that very few women report rapes, even fewer actually get to court and fewer still actually see their assailants convicted. And finally, even where there is a conviction, a number of these successful cases are overturned on appeal. It is also well documented that the closer the relationship between the rapist and his victim, the less likely he is to be convicted. The law still imagines that rape is a myth, where a (virginal, pure) woman is attacked by a (perverted, ‘strange’) stranger. This being so, it is far from easy for a woman raped by her husband to consider going to court. Nevertheless, women have, and on occasions they have been successful.
But, for radical feminists, increasing convictions is not the only point of legal reform. It matters that women, and men, now know that rape in marriage is a crime. It can help a woman see the reality of an abusive situation. It may even deter some men (an optimistic view, I know).
But could more be done? The new campaign could talk about rape in marriage, about links between rape and other forms of domestic violence, about the ways in which these can be interlinked in women’s lives. About rape by ex-husbands and ex-boyfriends, and how these can form part of stalking and harassment campaigns. Discussions of this kind are what we need if we are ever to rid ourselves of the continued mythology of rape. In fact, I believe that we need to see the rape in marriage battle, as ongoing, because whilst we have a law that says it is a crime, the courts are still reluctant to take it seriously. Just one example is a report of a 1995 case I came across. Here, the man had appealed against his conviction for four specimen counts of rape and assault on his former wife, during their marriage. He won his appeal, because ‘special care was needed when considering general allegations of sexual misconduct by an estranged spouse because such allegations were easy to make but difficult to refute’[1]. So, the courts are, it seems, tempted to believe that merely saying rape in marriage can (sometimes) be a crime, is enough. It is not.
The most recent stage in the rape in marriage story happened this year when the man who had been found guilty of rape in 1991, by the House of Lords, went to the European Court of Human Rights. He claimed that his human rights had been violated as he had been convicted of a crime which had not been unlawful, at the time he committed the act. Thankfully the court rejected his appeal, saying that the change in the law had been reasonably foreseeable, and that the abandonment of the old rule was ‘in conformity… with a civilised concept of marriage’[2]!
These two cases however raise another issue which crops up time and again in relation to the reform of law on rape, and which has various implications: civil liberties. The justification for comments such as the one in the Mayer case, that rape allegations are easy to make, is that it is seen as crucially important that a defendant’s civil liberties are not infringed (as they are where a wrongful conviction takes place). The traditional role of law reformers (on the political left) in this country has been to uphold those accused of crimes. However, for feminists seeking reform of the law around sexual and physical violence, the crucial issue is to ensure that prosecutions are conducted rigorously. In this respect, the Justice for Women campaign has been unusual for feminists, as it supports the civil liberties of defendants, making it more palatable to liberal legal minds than a campaign on rape could ever be. In fact those who are currently calling for the law on rape to be tightened up are, the police, the Home Secretary and Victim Support — not the allies which a feminist campaign would seek. The police and the government are, of course, coming from a law and order perspective, which differs fundamentally from a feminist one and neither (even if we have a Labour government by the time you read this) will be interested in radical legal reforms.
The New Campaign
The new Campaign to End Rape is aiming to strike at the heart of rape law with its demands for change. There are three issues which the campaign intends to use to open up discussions. These are:
• A demand for an investigation of the attrition rates in rape;
• A radical change of emphasis in the meaning of consent, in rape law;
• The introduction of ‘Special prosecutors’.
Attrition Rates
The attrition rate is the fall-out rate in the legal process. So, whilst official statistics now show that around 5,000 rapes are reported each year, only around 8% (400) of these result in the man being convicted. And if we look at the trend in recent years then it becomes clear that this attrition rate is worsening. Back in 1977, only 1,000 or so rapes were reported but over 300 resulted in conviction (30%). The increase in reporting is the result of feminist campaigns to enable women to name their experiences and feel entitled to redress, and efforts by the police to improve their treatment of women. But that increase means there are, in fact, now more women being badly let down by a criminal justice system.
There are problems at each stage of the process. Research reported in Sue Lees’ Carnal Knowledge: Rape on Trial shows that 40% of rape reports are still ‘no-crimed’ by the police, that is, no further action is taken. Police detection rates are abysmal, so most stranger rapists are never found. But an increasing problem is with the Crown Prosecution Service (CPS) who are under increasing pressure to screen out cases where the likelihood of conviction is below 50%. Many cases which the police think are strong evidentially are dropped by the CPS, and never get to court. Then there is the acquittal rate in court.
Towards the end of last year the Home Office announced that there was indeed going to be an investigation into these trends (how’s that for successful campaigning!) but we need to keep on talking about this issue, so that those in power know that just saying they’re doing something about it isn’t enough.
Consent
Perhaps the best outcome of the attrition rate investigation would be the setting up of a panel to look at rape law in general. This was the route through which radical reform has been achieved in parts of Australia and Canada. One reform of particular interest is the redefinition of consent in Victoria, Australia. Consent is the issue which many rape trials turn on since, if it can be shown that intercourse took place, and the man has been identified then he has no other defence left but to say ‘she wanted it’. And it is because of the way consent is defined in law that women’s past sexual history is often used by the defence — to try to suggest that she would have consented, and she’s not trustworthy. So, the reform in Victoria is interesting because it turns consent around, so that the man has to prove that he sought and got consent. He has to be able to show that something the woman did or said positively made him believe she consented, and the law expressly says that her sexual history is not to be taken as evidence of whether she consented. The Campaign to End Rape will demand that this model of consent is introduced into English law. This would reverse the way in which coercive heterosexuality has been legitimised in rape law.
Special Prosecutors
What is also clear from the attrition rates is that cases still fall out of the system at all stages. Many women still report rape only to find that the police don’t believe them, or the CPS say there isn’t enough evidence to proceed. For other women the case goes ahead alright but they don’t hear any more, until they see in the local paper that it’s due to come to court; or they find out that the man has been released on bail by bumping into him at the bus-stop. There is no one whose statutory responsibility it is to keep women informed (despite this being considered a right under the Victim’s Charter), and women reporting rape have no right to meet the CPS lawyer preparing the case or the barrister the CPS instructs to prosecute the case. Then, when they get to court, the prosecuting barrister more or less ignores them, and doesn’t seem to defend them when the defence suggests that they did consent after all. In short, there is an awful lot wrong with how women are treated by the people within the criminal justice system and the best that women can hope for is support from someone who’s willing to try to stand up for them, perhaps from Rape Crisis.
To the criminal justice system, the woman is just the ‘complainant’, a witness, not a party to the case (that’s between the man and the state) and once she’s reported, and had a medical, and made her statement, then her part is over, until the trial. One way of changing this might be to enable women to have their own lawyer at trial. This was suggested back in 1987 by Jennifer Temkin, and it apparently works well in a number of Scandinavian countries. But their legal systems are very different to our own, which could be one reason why it’s never been taken up. The Campaign to End Rape is choosing to prioritise a call for another change, which should improve conviction rates, and mean that women are treated with more respect. In the US (and other countries with similar legal systems to ours) some district attorney’s offices have what they call ‘special prosecutors’ who concentrate on crimes of violence against women and children. If these lawyers were introduced, within the CPS, they would need training in the reality of rape (and other sexual violence) but once that is achieved, they could fight for justice for the state, whilst working with the women complainants.
A contrasting example will illustrate the difference this might make. Last summer I was doing a piece of work tracking a case where charges had been laid. This meant spending time in a local CPS office studying the case files. One day at about 4pm one of the lawyers rushed into the office, saying ‘Who’s free tomorrow, we’ve just remembered this rape case’! Compare that with the accounts of Alice Vachss in Sex Crimes. She was a special prosecutor in New York, and her account illustrates the lengthy contact they always had with women and children when preparing cases, and the importance that was accorded to allocating a prosecutor who would build confidence in the woman or child before the trial. The ‘performance indicator’ which she set for the Sex Crimes Unit was the number of so-called ‘unprosecutable’ cases where they got convictions.
Another advantage of special prosecutors, if we can influence how they are selected, would be that it would enable more feminist lawyers to prosecute. Traditionally ‘radical’ lawyers have eschewed prosecution in Britain, but this would provide a route to prosecution which would not be perceived to comprise integrity in the way it currently does.
Where to now?
So, where do we go from here? The new campaign is getting started, and anyone who wants to be involved should contact the address at the end of this piece. Hopefully the Campaign to End Rape will lead public opinion in the way that Justice for Women continues to do, and eventually achieve some legal changes. But we all need to learn from the lessons of the past, the rape in marriage story shows that campaigning doesn’t end with legal change. We need to stick around, and monitor the implementation so that things don’t just slide back down to the level of the rape myths. q
Bibliography
Elaine Ginsberg and Sarah Lerner Sexual Violence and the Law (ROW, 1989)
Professor Glanville Williams ‘The Problem of Domestic Rape’ New Law Journal (15.2.91, pp 205-6)
Sue Lees Carnal Knowledge: Rape On Trial (Hamish Hamilton, 1996)
Jennifer Temkin Rape and the Legal Process (Sweet and Maxwell, 1987)
Alice Vachss Sex Crimes (Henry Holt, 1993)
Notes
[1] R v Maher, The Times 17.2.1995, as reported in Current Law Digest, March 1995.back
[2] W v UK and CR v UK cases 47/1994/494/576 and 48/1994/494/577, as reported in Family Law Today January 1996, p.9.back