The question whether rape is different may seem to some a question with a rather obvious answer. Yes, it is. It is a heinous crime and it has lower conviction rates than for example, murder. Some may argue it is a gendered crime, in that it is most often women who are victims. It is often committed with no witnesses to confirm or reject either party’s testimony. The complex issue of consent comes into play. Yet, are any of these answers actually suggesting that rape is somewhat different?
Helen Reece, a barrister and reader in law at the LSE, who specializes in family law, suggests that the question is misleading. Rape is not different, and rather it is important to take steps towards treating rape like other serious crimes. Following the hotly contested debate of whether rape is in fact different at the LSE, a group of feminists at Kent started a petition declaring that the debate should have never taken place at all. Perhaps, that is a step in the wrong direction. After all, if we avoid asking such difficult and uncomfortable questions, we come no closer to finding the truth. Whether or not you agree that rape is different to other serious crimes, it raises an important issue: in which direction should rape law reform go? Helen Reece answers a few questions surrounding the matter.
Why did you get into family law?
Mixture of just luck! When I graduated I was asked to do some classes in family law. And that was quite funny, because family law was a subject that I found the hardest and most kind of messy when I was a student. I studied law, so I liked the tight, legal subjects. And family law was kind of all over the place. But then I got this opportunity to teach family law and that initiated my interest. And I think, actually the more you learn about something the more interesting it becomes, doesn’t it? You start to come to terms with all the quirks. But I think now family law is fantastic and a very interesting subject: it’s about people and how people live. And it is messy, but I love the messiness now. It’s about the everyday way that people live and conduct their relationships. And it’s good if you like people, if you like gossip! And I like both of those things, and I think it’s a really interesting subject.
Would you say that rape reformers are part of the problem of encouraging rape myths? In other words, one could argue that rape awareness posters cause women to perhaps alter their behaviour on a night out. Always keep one eye on your drink. Don’t go home alone. Always pre-book a taxi. Do you think that such posters are therefore creating a sort of ‘rape culture’?
I think this is a very interesting example of the law of unintended consequences, or even perhaps to put it more strongly, of a measure having the opposite effect of what was intended. Rape reformers are very clear that women should bear no responsibility for rape and what’s more that women should not be expected to alter their behaviour as a means of rape prevention – and this is an aspect of their argument that I agree with. But as you suggest, ironically, rape awareness campaigns warning of the omnipresent risk of rape may have the effect of scaring women into doing just that, especially when coupled with some very gloomy statistics that are bandied about, about the high incidence of rape and low conviction rate for rape. And I think that’s a real shame – of course there are some precautions that just are sensible to take – I’m not recommending recklessness – but even so I would like to think women could go out and have a good time without having the risk of rape in the forefront of their minds, as my contemporaries and I certainly felt able to twenty years ago. But this leads to some broader issues about risk-averse contemporary culture …
One of your articles said that ‘rape victims have nothing to hide, nothing to be ashamed of. They should not feel stigmatized. A woman’s reputation should not be considered damaged by her being a rape complainant.’ Would you think that removing rape anonymity for the complainant would help prevent rape myths being so prevalent? Many people accept the notion that rape is different and those victims should have anonymity to protect themselves. But in other cases, you don’t tend to see anonymity being such an issue. Would you think removing it would help stop that?
Yes, I think that follows really nicely from your previous question because it really underlines the point you made very well there. That the efforts of rape reformers can end up having the opposite effect from what they want. And you’re illustrating that with the rape awareness posters – they don’t want to send women the message that they should avoid going out and partying. And that’s maybe the message that is sent. And I think the same can be said here. I’m sure that providing anonymity for rape complainants is well motivated. But again, it can have the opposite effect of encouraging women to feel that they have something to hide, something to be ashamed of. So yes, I’ve written that and I would welcome the removal of anonymity. I think the more we can do to de-stigmatize rape and put rape on the same footing as other serious crimes the better. And I think there is a more general point there, because I think one of the things you can do, which would be helpful in this area, is to be more straightforward about talking about issues of sex and sexuality, and therefore, by extrapolation, sexual crimes and sexual offences. I’m not suggesting that we just let it all hang out… I hate kind of seeing scantily clad women everywhere, on posters… I’m not talking about that sort of thing: the pornification of society as it’s been described. What I’m talking about is being able to have a straightforward, grown-up conversation about issues of sex and sexuality and sexual offences. I think that part of that is treating sexual crimes as similarly as we can to other crimes. So, part of that would be removing anonymity.
Do you think you would receive a lot of backlash from the feminist community in suggesting that rape anonymity should be revoked from complainants? Do you think that, maybe, there will be the whole idea that rape is different and it should be treated in that way? The notion that sex is the domination of man over woman, and that rape is one of the most heinous crimes that could happen. Don’t you think that women should be protected because the idea of removing anonymity may lead to them being stigmatized: they’re always going to have this feel that society is treating them differently because they were victims of a sexual assault.
But I think that society has to counteract that, and not reinforce it. Unfortunately, that’s still true, there’s shame and stigma attached to being a rape victim, although, I think things have improved in that respect and I think what we need to do is to move things further in the right direction and to counteract that stigma. We need to say to rape victims, that you have absolutely nothing to be ashamed of here. You have nothing to hide, and you can hold your head up high! You have no responsibility; it’s not your fault. There is no blame to be attached to you. I think that removing anonymity goes along the right direction. Going back to the first part of your question, will I get flak? Sure! However, this isn’t something that feminists are univocal on, so for example you get prominent feminists such as Germaine Greer, who has argued for a long time for the removal of anonymity for rape complainants. She was very articulate on Question Time on this issue. And really, she’s making a similar argument to the one I’m making, that it really reinforces that sense of shame. I think the thing that people will say to that is ‘what about the real people who are going to be hurt along the way?’ I think that can be overstated because it’s absolutely plain that most rape complainants know the defendant, they know the person they are accusing of rape. And so for that majority, I think it’s about 90 percent of rape complainants, anonymity isn’t actually an option for them anyway. The people who really matter know what’s going on and what’s being said. So it doesn’t work as well as it could do anyway. I think that we need to move society in the right direction on this issue and not to reinforce that sense of stigma, and do everything to counteract that.
And how would you suggest that this happens: through education, through campaigns? Events where people can participate in debates? How would you suggest that society be re-educated in this?
Well, I don’t really like the idea of society being ‘re-educated’. I think that that’s really one of the points I was trying to get across in my article and in the debate, because that implies that there is a section of society that has the right answers and they are going to tell the rest of society how to deal with it. So, I prefer to think more in terms of discussion and debate and having these issues out. And winning over people on points that you, or we, think are important. I think we’ve come a long way. I think you can overstate the shame that attaches to being a rape complainant. I think we have come a long way in that. I think the women’s movement has done a really good job of that, since really the 1970s, in de-stigmatizing the position for rape complainants. I think you can see that in the ever-growing number of rape complaints. And I think that you can overestimate the stigma that attaches now. In terms of how we can do more, well, it’s about having that grown-up discussion. It’s about being straightforward about sex, and issues of sexuality. And I think it’s also about giving women a sense of themselves. I think that’s also happened a lot, but it can happen more. So, I think the more that women believe that they matter, that they are important, that they have something to say. That they’re not just perceived as one-dimensional sex objects. That they have a role to play at work, that they have a role to play in education, that they have a role to play in the world. I think the more women will then feel confident to express themselves in every sphere, including sexually.
The next question is more about reform about the way rapists are punished. You can argue that prisons are rather violent institutions with embedded exploitative and hierarchical structures. So, wouldn’t you suggest that, perhaps, rapists should be punished in a different way? The idea being that while they are there the notion of control and domination is still being reinforced or do you think that is exaggerated?
I think I’m not the best person to answer that question because there is such great literature, an enormous literature on penal policy and on prison reform and the purpose of prisons. That’s not something I’m an expert on at all. I think that there is only one thing that I would say there and that is that a rapist needs to be punished. I think that if a man has been convicted of rape, then there is nothing wrong with prison serving the purpose of punishment. I think rape is something that does deserve the utmost censure from society. We can ask questions about rehabilitation and how rapists can be best rehabilitated, and that’s an important question to ask. But I also don’t think that there is anything wrong with prison serving the purpose of censure and punishment. And sending the message that this is a gross violation of women’s agency and autonomy. And that needs to be punished. That might be a bit old fashioned! But that’s what I think about that.
The Sexual Offences Act, 2003, declared that consent must be ‘active, not passive’. Feminists argue that this is demeaning to women as it encourages them to see themselves as victims. Would you agree that it is demeaning? Would agree that consent should be redefined. Consent is quite hard to pinpoint, especially involving sexual activity where if a women says ‘yes!’ to something, she’s seen as being overly promiscuous. But if she doesn’t say ‘yes’, there is backlash because the idea of consent is becoming blurred. What are your opinions?
I think maybe the first place to start is thinking about what the law says. It’s kind of right to say what you said – if you look at Section 74 of the Sexual Offences Act, then it says that there needs to be agreement by choice, with freedom and capacity to make that choice. So, you’re right: it is far more active then it might have been thought of in previous eras. But, I suppose it’s important to see what the law says there. And I think you’re right, I think you’ve pinpointed a problem there that that isn’t always what sex looks like. Especially, for young people and teenagers: that isn’t what sex looks like. The idea of agreement, as you said, is quite active. And as you said in your question quite rightly, often sex is something that we go along with. We go along with it with different degrees of enthusiasm. And, you know really, if you ask almost any sexually active woman, ‘have you ever had sex when you weren’t completely enthusiastic or you were feeling a bit reluctant?’ then probably, most women would say yes to that. So, the problem there is that you are then turning rape from something that’s of the utmost seriousness into something that’s far more widespread, far more common. So I think I would have concerns about consent being defined in that active way. It is perhaps, at the same time, ideal for sex to be joyous, and for both parties to be enthusiastic, and that’s of course what we all want to it be. But, that’s not the reality. That’s not the real world. And I think the way to tackle that is not by criminalizing a vast number of sexual encounters, which might not be ideal. There might be something that we feel a bit not great about the next day, but to be honest, we’ve all been there. Especially when we’re teenagers. If people are sexually active then they will make mistakes, they will go along with something, because there are pressures bearing down on them, or because it’s going to please somebody. So, I think there are dangers about widening consent in that way.
Would you suggest that there should be one, universal definition of what rape is? For instance, in the USA there is no nationwide definition of rape. So what’s rape in one state, may not necessarily count in another. Do you think that’s hindering the whole rape reform, and achieving justice? Some people may be seen to be exaggerating what actually happened. I know the USA may not be your forte…
No, it’s not. Obviously that’s not the problem here. We’ve got one definition of rape. So, that in itself isn’t an issue. I suppose I think we should put our good faith in the juries and we should trust the jury to use their life experience to interpret what consent means. And you’re not going to have a universal standard throughout society, and that perhaps is unfortunate. But there’s nothing much that can be done about that. I think it’s quintessentially a question ordinary people should determine because the notion of consent is not something an expert can decide. It’s something that we all have our own life experiences of and every situation is different. Every situation has its own context. I think we have no option but to trust the good sense of juries.
Do you think force is an integral part of rape?
No. I think it’s based on consent, and rightly so. If a woman is unconscious and a man has sexual intercourse with that woman, that’s clearly rape. Likewise, if the woman is asleep, likewise if a woman has drunk so much that she cannot give any meaningful consent at all: so, it’s false to suggest force is integral. And I think it is absolutely right that the law should be based on consent rather than force. I think it is much too small a category of rape to focus on force.
Do you think rape, as a war crime, should be treated differently from standard rape in the context of war? Do you think there is any difference, or do you think it’s essentially the same thing regardless of the context, or the motivations behind it?
It’s just something I haven’t looked into. I think all I would say is that rape as a war crime raises some, arguably, even more difficult and complex issues. But, it’s not something I’ve looked at enough to really say anything about.