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Abstract
This article challenges much existing scholarship on rape which asserts that the law has reached a best practice plateau and justice for victims is now being held back primarily by the aberrant ‘attitudes’ of criminal justice actors charged with implementing that law. It contends that previous writing on rape, law, and linguistics has failed to adequately account for the question of why law continues to appear systematically deaf to the calls of untold numbers of women for justice in the aftermath of rape. It seeks to illustrate law’s continuing complicity in the failure of the institutional response to the crime of rape with particular reference to the rape trial. While purporting to disavow sexist prejudice on the one hand, on the other, law makes no ultimate concession to woman’s unique sexuate difference. For this reason, it continues to enable the conditions that support the full flourishing of ‘attitudes’ that prevent the recognition of the crime of rape. This article argues that the law is complicit in its own failure because it is structurally invested, for its own survival and coherence, in the exclusion and erasure of woman’s voice, which represents the possibility of a plural form of being and thinking and is thus a fundamental challenge to the legitimacy of law.
Notes
1 Elizabeth Sanderson and Tom Hendry, ‘“My Wife Killed Herself because She Was on Trial, Not the Choirmaster”: Husband’s Anguished Account of How Abused Wife Spiralled [sic] to Suicide after Court Ordeal’ Daily Mail (online) 10 February 2013 <http://www.dailymail.co.uk/news/article-2276229/Frances-Andrade-Husbands-anguished-account-abused-wife-spiralled-suicide-court-ordeal.html> (last accessed 28 July 2016). In England and Wales evidence law limits the extent to which the prosecution can prepare a witness for testimony. Evidence that a witness has been ‘coached’ prior to giving testimony, either by police, prosecutors, or others, can be drawn on in court by the defence to undermine witness credibility and to infer that the evidence given is contaminated. It can also constitute grounds for appeal. Witnesses may be familiarised with the court layout and process but not ‘trained’ to give their evidence. See further, Momodou and Limani (2005) EWCA Crim 177.
2 Sara Pidd and Philippa Ibbotson, ‘Sexual Abuse Victim Killed Herself after Giving Evidence at Choirmaster Trial’ The Guardian (online) 8 February 2013 <http://www.theguardian.com/uk/2013/feb/08/sexual-abuse-victim-killed-herself-trial> (last accessed 14 May 2014).
3 Sanderson and Hendry above note 1.
4 Kristin Bumiller, In an Abusive State: How Neoliberalism Appropriated the Feminist Movement against Sexual Violence (Duke University Press 2008); Alison Young, ‘Waste Land of the Law, The Wordless Song of the Rape Victim’ (1999) 22 Melbourne University Law Review 442.
5 Katrin Hohl and Elizabeth Stanko, ‘Complaints of Rape and the Criminal Justice System: Fresh Evidence on the Attrition Problem in England and Wales’ (2015) 12(3) European Journal of Criminology 324; Jan Jordan, ‘Justice for Rape Victims? The Spirit May Sound Willing, but the Flesh Remains Weak’ in Dean Ross and Stuart Wilson (eds) Crime, Victims and Policy: International Contexts, Local Experiences (Palgrave Macmillan 2015) 84; Susan Leahy, ‘Bad Laws or Bad Attitudes? Assessing the Impact of Societal Attitudes Upon the Conviction Rate for Rape in Ireland’ (2014) 14 Irish Journal of Applied Social Studies 18; Ilene Seidman and Susan Vickers, ‘The Second Wave: An Agenda for the Next Thirty Years of Law Reform’ (2005) 38 Suffolk University Law Review 467; Vivian Stern, The Stern Review (Government Equalities Office 2010); Jennifer Temkin and Barbara Krahé, Sexual Assault and the Justice Gap: A Question of Attitude (Hart 2008).
6 Yvette Russell, ‘Thinking Sexual Difference Through the Law of Rape’ (2013) 24(3) Law and Critique 255.
7 Judith Herman, ‘Justice from the Victim’s Perspective’ (2005) 11(5) Violence against Women 571; Liz Kelly, Jo Lovett and Linda Regan, A Gap or a Chasm? Attrition in Reported Rape Cases (Home Office 2005); Amanda Konradi, Taking the Stand: Rape Survivors and the Prosecution of Rapists (Praeger 2007); Wendy Larcombe, ‘The “Ideal” Victim v Successful Rape Complainants: Not What You Might Expect’ (2002) 10 Feminist Legal Studies 131; Jeanne Gregory and Sue Lees, ‘Attrition in Rape and Sexual Assault Cases’ (1996) 36(1) British Journal of Criminology 1; Sue Lees, Ruling Passions: Sexual Violence, Reputation, and the Law (Open University 1997); Julia Quilter, ‘Re-framing the Rape Trial: Insights from Critical Theory about the Limitations of Legislative Reform’ (2011) 35 Australian Feminist Law Journal 23; Carol Smart, Feminism and the Power of Law (Routledge 1989); Jennifer Temkin, Rape and the Legal Process (Oxford University Press 2002); Young above note 4.
8 John M Conley and William M O’Barr, Just Words: Law, Language, and Power (University of Chicago Press 2005); Susan Ehrlich, Representing Rape: Language and Sexual Consent (Routledge 2001); Louise Ellison, ‘Cross-Examination in Rape Trials’ (1998) Criminal Law Review 605; Nicola Henry, ‘The Impossibility of Bearing Witness: Wartime Rape and the Promise of Justice’ (2010) 16 Violence against Women 1098; June Luchjenbroers and Michelle Aldridge, ‘Conceptual Manipulation by Metaphors and Frames: Dealing with Rape Victims in Legal Discourse’ (2007) 27(3) Text and Talk: An Interdisciplinary Journal of Language, Discourse Communication Studies 339; Gregory Matoesian, Reproducing Rape Domination Through Talk in the Courtroom (University of Chicago Press 1993); Gregory Matoesian, Law and the Language of Identity: Discourse in the William Kennedy Smith Rape Trial (Oxford University Press 2001); Gregory Matoesian, ‘You Might Win the Battle but Lose the War: Multimodal, Interactive, and Extralinguistic Aspects of Witness Resistance’ (2008) 36(3) Journal of English Linguistics 195; Gregory Matoesian, ‘Language and Material Conduct in Legal Discourse’ (2013) 17(5) Journal of Sociolinguistics 634; Peggy Reeves Sanday, A Woman Scorned: Acquaintance Rape on Trial (University of California Press 1997); Andrew Taslitz, Rape and the Culture of the Courtroom (New York University Press 1999); Sarah Zydervelt, Rachel Zajac, Andy Kaladelfos and Nina Westera, ‘Lawyers’ Strategies for Cross-Examining Rape Complainants: Have We Moved Beyond the 1950s?’ (2016) British Journal of Criminology DOI: 10.1093/bjc/azw023.
9 In conceptualising rape as a fundamentally gendered crime and one mediated by sexual difference, a consideration of the rape of men and their experience of the rape trial would necessarily require an independent analysis. As Louise du Toit has argued, the abjection of the body caused by the act of rape cannot be generalised to all bodies similarly. The abjection of women during rape occurs against a backdrop of a body already coded as abject: as waste, excess, and mere matter. While the male victim is abjected by his feminisation during rape, this is not directly comparable to the female victim.
There is … not a similar moment of recognition for the male rape victim, and he is likely to see the road to the recovery of his humanity as leading through a recovery or reconstitution of his masculinity, which in our symbolic order is closely aligned with the ability to overcome or subjugate the feminine.
10 Matthew Hale, History of the Pleas of the Crown (Sollom Emlyn 1736) 635. This book was published posthumously some 60 years after Hale’s death.
11 Kelly and others above note 7; Temkin and Krahé above note 5.
12 Arguably, previous sexual history evidence continues to function to impugn complainant credibility notwithstanding legislative attempts to limit its use. In England and Wales, for example, an evaluation in 2006 of the operation of section 41 of the Youth Justice and Criminal Evidence Act 1999 found that trial judges had interpreted the section as providing them a broad discretion to admit previous sexual history evidence to ensure a ‘fair trial’. See Liz Kelly, Jennifer Temkin and Sue Griffith, Section 41: An Evaluation of New Legislation Limiting Sexual History Evidence in Rape Trials Home Office Online Report 20/06 (2006).
13 In a number of jurisdictions, for example, vulnerable witnesses can choose to submit their evidence behind a shield or by closed-circuit television, bypassing the courtroom all together.
14 Holly Johnson, ‘Limits of a Criminal Justice Response: Trends in Police and Court Processing of Sexual Assault’ in Elizabeth Sheehy, Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (University of Ottawa Press 2012) 305; Jan Jordan, ‘Here We Go Round the Review-Go-Round: Rape Investigation and Prosecution – Are Things Getting Worse Not Better?’ (2011) 17(3) Journal of Sexual Aggression 234; Wendy Larcombe, ‘Limits of the Criminal Law for Preventing Sexual Violence’ in Nicola Henry and Anastasia Powell (eds) Preventing Sexual Violence: Interdisciplinary Approaches to Overcoming a Rape Culture (Palgrave Macmillan 2014); Clare McGlynn and Vanessa E Munro (eds) Rethinking Rape Law: International and Comparative Perspectives (GlassHouse 2010); Nicole Westmarland and Geetanjali Gangoli (eds) International Approaches to Rape (Policy Press 2012).
15 There remains a huge disparity among police districts in England and Wales, for example, in the translation of reported offences to recorded offences; the phenomenon of ‘no-criming’ incidents reported as rape is common practice in some police districts. The Home Office Counting Rules define the circumstances under which a crime report may be ‘no crimed’. These include situations where a crime is considered to have been recorded in error or where, having been recorded, additional verifiable information becomes available that determines that no crime was committed, which can include details uncovered during investigations, retractions of allegations, and occasions where it is later determined the offence took place under another force’s jurisdiction. The level of evidence needed to ‘no crime’ is higher than for the recording of a crime as it requires information to be available that determines that the offence did not happen, rather than the ‘balance of probabilities that a crime did happen’. See further Ministry of Justice, Home Office and the Office for National Statistics, An Overview of Sexual Offending in England and Wales (Home Office 2013) 65.
16 Wendy Larcombe, ‘Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape Law’ (2011) 19(1) Feminist Legal Studies 27; Clare McGlynn, Nicole Westmarland and Nikki Godden, ‘“I Just Wanted Him to Hear Me”: Sexual Violence and the Possibilities of Restorative Justice’ (2011) 39 Journal of Law and Society 213; Anastasia Powell, Nicola Henry and Asher Flynn (eds) Rape Justice: Beyond the Criminal Law (Palgrave Macmillan 2015).
17 Bumiller above note 4; Kristin Bumiller, ‘Feminist Collaboration with the State in Response to Sexual Violence’ in Aili Mari Tripp, Myra Marx Ferree and Christina Ewig (eds) Gender, Violence, and Human Security: Critical Feminist Perspectives (New York University Press 2013) 191; Kristin Bumiller, ‘Explaining the Volte-Face: Turning Away from the Criminal Law and Returning to the Quest for Gender Equality’ in Rosemary Gartner and Bill McCarthy (eds) The Oxford Handbook of Gender, Sex, and Crime (Oxford University Press 2014) 118; Rose Corrigan, Up Against a Wall: Rape Reform and the Failure of Success (New York University Press 2013); Aya Gruber, ‘Rape, Feminism, and the War on Crime’ (2009) 84 Washington Law Review 581.
18 Rosemary Hunter (ed) Rethinking Equality Projects in Law: Feminist Challenges (Hart 2008); Larcombe above note 16.
19 Vanessa E Munro, Law and Politics at the Perimeter: Re-evaluating Key Debates in Feminist Theory (Hart 2007) 72.
20 Gerd Bohner, Friederike Eyssel, Afroditi Pina, Frank Siebler and G Tendayi Viki, ‘Rape Myth Acceptance: Cognitive, Affective and Behavioural Effects of Beliefs that Blame the Victim and Exonerate the Perpetrator’ in Miranda Horvath and Jennifer Brown (eds) Rape: Challenging Contemporary Thinking (Willan 2009) 17; Louise Ellison and Vanessa E Munro, ‘A Stranger in the Bushes, or an Elephant in the Room? Critical Reflections upon Received Rape Myth Wisdom in the Context of a Mock Jury Study’ (2010) 13(4) New Criminal Law Review 781; Louise Ellison and Vanessa E Munro, ‘Better the Devil You Know? Real Rape Stereotypes and the Relevance of a Previous Relationship in (Mock) Juror Deliberations’ (2013) 17(4) The International Journal of Evidence and Proof 299; Heike Gerger, Hanna Kley, Gerd Bohner and Frank Siebler, ‘The Acceptance of Modern Myths about Sexual Aggression Scale: Development and Validation in German and English’ (2007) 33 Aggressive Behavior 422; Jennifer Temkin, Jacqueline M Gray and Jastine Barrett, ‘Different Functions of Rape Myth Use in Court Findings from a Trial Observation Study’ (2016) Feminist Criminology DOI: 10.1177/1557085116661627.
21 Hohl and Stanko above note 5; Liz Kelly, ‘The (In)credible Words of Women: False Allegations in European Rape Research’ (2010) 16 Violence against Women 1345; Vanessa E Munro and Liz Kelly, ‘A Vicious Cycle? Attrition and Conviction Patterns in Contemporary Rape Cases in England and Wales’ in Miranda Horvath and Jennifer Brown (eds) Rape: Challenging Contemporary Thinking (Willan 2009) 281.
22 Louise Ellison, Vanessa E Munro, Katrin Hohl and Paul Wallang, ‘Challenging Criminal Justice? Psychosocial Disability and Rape Victimization’ (2015) 15(2) Criminology and Criminal Justice 225; Hohl and Stanko above note 5; Stern above note 5.
23 Rt Hon Dame Elish Angiolini DBE QC, Report of the Independent Review into the Investigation and Prosecution of Rape in London (online) 30 April 2015 <http://www.cps.gov.uk/publications/equality/vaw/dame_elish_angiolini_rape_review_2015.pdf> (last accessed 30 July 2016); Clare Gunby, Anna Carline and Caryl Beynon, ‘Alcohol-Related Rape Cases: Barristers’ Perspectives on Rape and the Sexual Offences Act 2003 and its Impact on Practice’ (2010) 74 Journal of Criminal Law 579.
24 Patricia Easteal and Miriam Gani, ‘Sexual Assault by Male Partners: A Study of Sentencing Variables’ (2005) 9 Southern Cross Law Review 39; Jessica Kennedy and Patricia Easteal, ‘Colour “Black Letter” Sexual Assault Law Reform Grey: An Australian Example’ in Jaya Sagade, Vedna Jivan and Christine Forster (eds) Feminism in the Subcontinent and Beyond: Challenging Laws, Changing Laws (Eastern Book Company 2014) 107.
25 Louise Ellison and Vanessa E Munro, ‘Reacting to Rape: Exploring Mock Jurors’ Assessments of Complainant Credibility’ (2009) 49(2) British Journal of Criminology 202; Louise Ellison and Vanessa E Munro, ‘Of “Normal Sex” and “Real Rape”: Exploring the Use of Socio-Sexual Scripts in (Mock) Jury Deliberation’ (2009) 18(3) Social and Legal Studies 291; Ellison and Munro, ‘A Stranger in the Bushes’ above note 20; Louise Ellison and Vanessa E Munro, ‘Getting to (Not) Guilty: Examining Jurors’ Deliberative Processes in, and Beyond, the Context of a Mock Rape Trial’ (2010) 30(1) Legal Studies 74; Ellison and Munro, ‘Better the Devil You Know?’ above note 20; Emily Finch and Vanessa E Munro, ‘Breaking Boundaries? Sexual Consent in the Jury Room’ (2006) 26(3) Legal Studies 303; Emily Finch and Vanessa E Munro, ‘The Demon Drink and the Demonized Woman: Socio-Sexual Stereotypes and Responsibility Attribution in Rape Trials Involving Intoxicants’ (2007) 16(4) Social and Legal Studies 591.
26 Russell above note 6.
27 Conley and O’Barr above note 8; Ehrlich above note 8; Mark R Kebbell, Steven Deprez and Graham F Wagstaff, ‘The Direct and Cross-Examination of Complainants and Defendants in Rape Trials: A Quantitative Analysis of Question Type’ (2003) 9 Psychology, Crime and Law 49; Mark R Kebbell, Catriona ME O’Kelly and Elizabeth L Gilchrist, ‘Rape Victims’ Experiences of Giving Evidence in English Courts: A Survey’ (2007) 14 Psychiatry, Psychology and Law 111; Luchjenbroers and Aldridge above note 8; Matoesian 1993, 2001, 2008, 2013 above note 8; Zydervelt and others above note 8.
28 Conley and O’Barr above note 8 at 21.
29 Matoesian 1993 above note 8 at 1.
30 As above at 2.
31 As above at 13.
32 As above at 20.
33 Matoesian 2001 above note 8
34 As above at 3.
35 As above at 37.
36 As above at 40.
37 As above at 38.
38 As above at 46.
39 As above at 60.
40 As above at 6.
41 As above at 40.
42 As above at 68.
43 Matoesian is not overly concerned with the question of why rape occurs although he does appear to adopt the radical feminist explanation for sexual violence against women (Matoesian 1993 above note 8 at 10-22), endorsing MacKinnon’s position that rape is a function of the masculine demand for unfettered sexual access to women’s bodies: see further Catharine A MacKinnon, Feminism Unmodified: Discourses on Life and Law (Harvard University Press 1987); Catharine A MacKinnon, Towards a Feminist Theory of the State (Harvard University Press 1989); Catharine A MacKinnon, Are Women Human? And Other International Dialogues (Harvard University Press 2007). ‘The interpretation and discovery of rape are organized around the patriarchal standpoint. Hence, the force and coercion in rape are systematically concealed through the institutionalized power of law’ (Matoesian 1993 above note 8 at 19). He does not, however, spend time thinking about how this ‘patriarchal standpoint’ is generated in the first place.
44 See, in particular, Ann J Cahill, Rethinking Rape (Cornell University Press 2001); Nicola Gavey, Just Sex? The Cultural Scaffolding of Rape (Routledge 2005).
45 Luce Irigaray, Sexes and Genealogies (trans Gillian C Gill) (Columbia University Press 1993) 11.
46 Margaret Whitford, Luce Irigaray: Philosophy in the Feminine (Routledge 1991) 34.
47 Cheryl Lawler, ‘Orestes with Oedipus: Psychoanalysis and Matricide’ in Mary C Rawlinson, Sabrina L Hom and Serene J Khader (eds) Thinking with Irigaray (SUNY Press 2011) 13 at 20.
48 Aeschylus, Oresteia (trans Christopher Collard) (Oxford World Classics 2001).
49 Luce Irigaray, ‘The Bodily Encounter with the Mother’ in Margaret Whitford (ed) The Irigaray Reader (Wiley Blackwell 1991) 37-38.
50 Amber Jacobs, On Matricide: Myth, Psychoanalysis, and the Law of the Mother (Columbia University Press 2008) 60.
51 As above at 63. This figure of the omnipotent and divine god-father is familiar too in Christian mythology. As Lawler points out, ‘[b]y the time we arrive at the creation story in Genesis, any trace of the primordial mother has been erased. What emerges is a solipsistic, male, creator god – Yahweh – absolutely transcendent to his creation’ (Lawler above note 47 at 20).
52 Livy, The Rise of Rome: Books 1-5 (trans TJ Luce) (Oxford World Classics 1998) 67.
53 As above at 68.
54 Maria Drakopoulou, ‘Of the Founding of Law’s Jurisdiction and the Politics of Sexual Difference: The Case of Roman Law’ in Shaun McVeigh (ed) Jurisprudence of Jurisdiction (Routledge Cavendish 2007) 33.
55 As above at 42.
56 As above at 42-43.
57 Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law (University of California Press 1995) 118-119.
58 John Fortescue, De Natura Legis Naturae (1859).
59 Goodrich above note 57 at 123.
60 As above at 130.
61 As above at 128.
62 As above at 129.
63 Fortescue above note 58 at 243, cited in above at 130.
64 As above at 138.
65 See, for example, Joanne Conaghan, ‘Tort Law and the Feminist Critique of Reason’ in Ann Bottomley (ed) Feminist Perspectives on the Foundational Subjects of Law (Cavendish 1996); Joanne Conaghan, Law and Gender (Oxford University Press 2013); Lucinda Finley, ‘Breaking Women’s Silence: The Dilemma of the Gendered Nature of Legal Reasoning’ (1989) 64 Notre Dame Law Review 886; Regina Graycar and Jenny Morgan, The Hidden Gender of Law (Allen and Unwin 1990); Genevieve Lloyd, The Man of Reason: ‘Male’ and ‘Female’ in Western Philosophy (Routledge 1984); Martha Minow, ‘Feminist Reason: Getting It and Losing It’ (1988) 38 Journal of Legal Education 47; Ulrike Schultz and Gisela Shaw (eds) Gender and Judging (Hart 2013); Smart above note 7.
66 Margaret Denike, ‘The Sex of Right Reason: Aquinas and the Misogynist Foundations of Natural Law’ in Maria Drakopoulou (ed) Feminist Encounters with Legal Philosophy (Routledge 2013) 20.
67 As above at 21.
68 As above at 29.
69 Elizabeth Grosz, Jacques Lacan: A Feminist Introduction (Routledge 1990) 180.
70 Peter Goodrich, Languages of Law: Logics of Memory to Nomadic Masks (Weidenfeld and Nicolson 1990) vii.
71 As above at 184.
72 As above at 95.
73 As above at 109.
74 As above at 184.
75 Luce Irigaray, This Sex Which is Not One (trans Catherine Porter) (Cornell University Press 1985) 106.
76 As above at 107.
77 Luce Irigaray, To Speak is Never Neutral (trans Gail Schwab) (Continuum 2002) 228.
78 See also Ehrlich above note 8.
79 Kirsty Duncanson and Emma M Henderson, ‘Narrative, Theatre and the Potential Interruptive Value of Jury Directions for Rape Trials in Victoria, Australia’ (2014) 22(2) Feminist Legal Studies 155.
80 Louise Ellison and Vanessa E Munro, ‘Turning Mirrors into Windows? Assessing the Impact of (Mock) Juror Education in Rape Trials’ (2009) 49(3) British Journal of Criminology 363.
81 For example, in England and Wales see Sexual Offences Act 2003 s 1; in New Zealand see Crimes Act 1961 s 128; and in Ireland see Criminal Law (Rape) Act 1981 s 2.
82 Russell above note 6 at 257.
83 Louise du Toit, A Philosophical Investigation of Rape: The Making and Unmaking of the Feminine Self (Routledge 2009) 33.
84 Irigaray prefers the term ‘sexuate difference’ in her later work to ‘sexual difference’. She insists on this distinction in part as a way to deal with criticism that has conflated her use of the ‘sexual’ in sexual difference with sexuality.
85 Matoesian 1993 above note 8 at 20.
86 Kebbell and others 2003 above note 27; Larcombe above note 7.
87 Luce Irigaray’s work on language is extensive and spans multiple methodological terrains including substantial empirical research into patterns of speech, grammar, and syntax, and in particular the differences observable between women and men. Irigaray illustrates the effect of the ‘veiled masculinity’ present in dominant language systems in her extensive empirical research into the relationship between philosophy and linguistics: see Luce Irigaray, Le langage des dements (Mouton 1973); Luce Irigaray, I Love to You: Sketch for a Felicity within History (trans Alison Martin) (Routledge 1996); Luce Irigaray, To Be Two (trans Marco M Rhodes and Monique F Cocito-Monoc) (Continuum 2000). This work argues that linguistics is marked by sexual difference through the usage of ‘he’ and ‘she’, however her empirical work illustrates that even the personal pronoun ‘I’ is sexually marked. Not only do men and women produce different elements of sexual difference through their respective speech, but the grammatical subject itself is also sexed: ‘grammar reflects, for both men and women, a valorization of masculinity and an erasure of femininity’. (Margaret Hass, ‘The Style of the Speaking Subject: Irigaray’s Empirical Studies of Language Production’ (2000) 15(1) Hypatia 64 at 66).
88 Young above note 4 at 465.
89 Larcombe above note 7 at 132.
90 As above at 144. Access to the discursive tools of resistance will, of course, be highly contingent on a complainant’s subject position: their class, race, ethnicity, whether they are able bodied or not, etc. Indeed, Larcombe notes that ‘successful rape complainants in Australia are more likely working-class, young, able bodied, non-Aboriginal, English speaking women’ (as above). On the rape of women and differential access to criminal justice mechanisms due to racial difference see further: Patricia Hill Collins, Fighting Words: Black Women and the Search for Justice (University of Minnesota Press 1998); Kimberle Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) 1 University of Chicago Legal Forum 139; Danielle L McGuire, At the Dark End of the Street: Black Women, Rape, and Resistance – A New History of the Civil Rights Movement from Rosa Parks to the Rise of Black Power (Vintage 2011).
91 Larcombe above note 7 at 146. Larcombe takes no solace in her conclusions: ‘There is no cause for celebration here, however. Even if women are no longer primarily disqualified on the basis of sexual and/or moral conduct, the discursive resistance that appears to characterize successful complainants is similarly exacting’ (at 145).
92 Irigaray above note 75 at 30.
93 For example, in England and Wales, section 32 of the Criminal Justice and Public Order Act 1994 abolished the requirement in sexual offences trials that the judge issue a warning to the jury that a woman’s evidence alone, in the absence of independent corroboration, must be treated with caution and section 41 of the Youth Justice and Criminal Evidence Act 1999 sought to restrict the use of previous sexual history evidence in rape trials. Section 112 of the Coroners and Justice Act 2009 amended the power to admit consistent statements of complaint by repealing the requirement that the complaint must be made ‘as soon as could reasonably be expected after the alleged conduct’. Carline and Easteal describe this suite of measures as ‘the most radical rewriting of the orthodox rules for treatment of witnesses in the adversarial trial system in the common law world’: Anna Carline and Patricia Easteal, Shades of Grey: Domestic and Sexual Violence against Women (Routledge 2014) 199.
94 Ministry of Justice, First Victims Spared Harrowing Court Room under Pre-recorded Evidence Pilot (online) 28 April 2014 <https://www.gov.uk/government/news/first-victims-spared-harrowing-court-room-under-pre-recorded-evidence-pilot> (last accessed 31 July 2016).
95 Luce Irigaray, Speculum of the Other Woman (trans Gillian C Gill) (Cornell University Press 1985) 11-24. See also Ngaire Naffine, ‘Possession: Erotic Love in the Law of Rape’ (1994) 57(1) Modern Law Review 10.