Criminal Justice and Sexual Violence – A Critique

This passage is an extract from my article “What about the rapists? An abolitionist response” published in Beckman, A., Moore, J.M. and Wahidin, A. (2016) Penal Abolitionism: Papers from the Penal Law, Abolition and Anarchism Conference Volume I​ London: EG Press

The full chapter is available here – ‘What about the rapists – An abolitionist response’.


Criminal Justice as failure

The paradigm of criminal justice is centred on blame and pain (Christie 1981). It seeks to resolve conflicts or respond to undesirable acts by identifying someone who can be found guilty and sentenced to endure a punishment. As such it understands cases in terms of individual deviancy divorced from social context (Hulsman 1986). In responding to sexual violence the focus is on the individual deviant, their guilt and the appropriate amount of pain to inflict (Christie, 1981). Criminal justice relies on a number of legal fictions based around a deliberate denial of power relations. Most immediately the deeply embedded power relations of the court room are crudely obscured and represented as ‘equality before the law’ and ‘blind justice’. But far more significantly the focus on the possible individual deviancy of the alleged perpetrator ignores the wider social context and associated power relations. Patriarchy, misogyny, masculinity and heteronormativity are never in the dock and only appear as alibis for the defence.

The focus on the individual however does not extend to the victim. The victim has experienced the sexual violence personally, they have lived it. But to criminal justice they become a very particular ‘victim’, one whose contribution is as a witness to the possible deviancy of the alleged perpetrator. A witness who is subjected to what Kristin Bumiller (2008:129) has described as a ‘very public form of scrutiny’ in which her version of the truth is disputed, challenged, tested and potentially discredited. A witness who finds that it is their behaviour, character and integrity that is on trial. A victim who must relive and re-experience her violent victimisation to satisfy the demands of ‘justice’ before watching ‘justice’ determine the case based on a judgement of the behaviour of the alleged perpetrator (and indeed the behaviour of a ‘reasonable’ man) rather than on her own lived experience. The outcome of a criminal justice sexual violence case must be either ‘not-guilty’ – that the crime effectively did not occur – or ‘guilty’ in which case the perpetrator becomes a deviant suitable for blame and pain. In determining the appropriateness of these two options investigators, prosecutors and juries have tended to focus less on the issue of consent – which is nearly always contested – and instead focused on the appropriateness of the social encounter. This reflects the history of rape as a legal concept that perceived it as a crime against male property rather than the woman (Brownmiller 1975:8). Rape laws were, as Angela Davis (1982:172) has emphasised, ‘framed for the protection of men of the upper classes’. The Jimmy Saville case has demonstrated that a well- connected powerful man can abuse vulnerable and lower status girls and women with impunity (at least in his lifetime) (Davies 2014).

The consequence of criminal justice’s approach to sexual violence is failure. Whilst exact figures are impossible to know the Office of National Statistics has, using data collected in the Crime Survey for England and Wales, estimated that there are annually between 60,000 and 95,000 victims of rape and 430,000 to 517,000 victims of sexual offences (ONS 2013:7). This compares with 1,070 people convicted of rape and 5,620 people convicted of other sexual offences (ibid). These figures would indicate a ‘clear-up’ rate for the CJS of less than two percent for rape and just over one percent for other sexual offences. However these figures are not directly comparable. Whilst they contain all convictions irrespective of the age of the victim the estimated prevalence is based on self- reporting by people aged 16 to 59. Given the particularly vulnerability of people outside that age group the likely frequency of sexual violence is far greater. Whilst more detailed work could possible define more accurately the exact magnitude of the criminal justice systems’ failure in terms of sexual violence for the purposes of this paper let us proceed on the basis that it is either ninety- eight point something or ninety-nine point something percent. 

Criminal Justice’s failure as a response to sexual violence has long been recognised. In particular feminist critiques have provided powerful explanations for this failure (Brownmiller 1975; Wilson 1983). Criminal Justice and its supporters have become increasingly attentive to these critiques and sought to respond to them by embarking on extensive reforms in both the law and criminal justice practices. It is important to recognise the magnitude of these reforms. These have not tinkered at the margins but have fundamentally and substantially changed the law. The Sexual Offences (Amendment) Act 1976 introduced ‘consent’ into statute law (previously it had focused on ‘force’ as the key legal test).[1] The Sexual Offences Act 2003, described by Nicole Westmarland (2004:15) as a ‘huge step forward’, introduced new legal definitions of both rape and consent as well as creating a number of completely new offences. The influence of feminist critiques of sexual violence in the 2003 Act was clear. Westmarland (2014:16), for example, highlighted that ‘(d)ecades of previously dismissed feminist campaigning have now come to fruition’ although she cautioned that it was ‘highly unlikely that a new law alone will see an end to the problems women who are raped face within the criminal justice system’ (emphasis added). 

Optimism that this revised legal framework would overcome the historic weaknesses of criminal justice responses to sexual violence proved unjustified. Despite the redrafting of the law and major reforms in criminal justice practice the outcomes achieved have largely been unchanged. The figures outlined above showing attrition rates in excess of 98 percent are post-reform. Despite the law largely accommodating the demands laid out in feminist foundational texts there remains as Laureen Snider (1998:2) highlighted at the end of the last century ‘no persuasive evidence that reliance on criminal justice has made the female complainant safer or the male offender less violent’. Indeed for most women contact with the criminal justice system following an experience of sexual violence remains to ‘risk being humiliated, discredited, disbelieved, and even reviled for their efforts’ (Leander 2013:357). Whilst there remains (and always will remain) further potential scope for reform its impact is likely to be at best very marginal. The failure of the 2003 Act to make any significant change to outcomes suggests that the limitations of criminal justice responses to sexual violence are fundamental problems rather than technical malfunctions. Effective solutions will therefore require a radically different approach rather than the reform of the existing system. 

Criminal Justice as Success

However before moving on to explore the radically different approaches offered by abolitionism it is important to highlight a way in which criminal justice clearly does ‘work’. We need to recognise that whatever criminal justice’s stated aims it also performs an ideological function. With respect to sexual violence the key ideological functions are to firstly establish an illusion of safety and secondly to utilise this to justify the continued use of prisons. Criminal justice claims that it functions to protect women and children from sexual violence and without its continuation, it warns, they would be unprotected and vulnerable to significantly increased risk. In responding to abolitionist proposals to abolish the prison or the wider penal system critics immediately ask ‘but what about the rapists?’ Implicit in this question is the assumption that criminal justice provides safety; that it operates as an effective protection from sexual violence. Despite all the evidence of criminal justice’s failure in practice it sustains its continued existence (and continued failure) by maintaining the myth that it actual protects. 

The second ideological function is the legitimisation of prison. Since the emergence of the modern prison as the central institution of the penal system over two hundred years ago it has faced repeated crisis of legitimacy (Foucault 1977; Fitzgerald & Sim 1979). Its failure to achieve its own aims has been extensively documented by abolitionist scholars (see for example Christie 1981; Maithesen 1990) and this recurring failure has required the continuous generation of new (and recycled) ideological justifications for prisons continuation. The myth that prison protects society from the perpetrators of sexual violence provides an important justification for its increased use. But this justification extends beyond the incarceration of the occasional sexual offender to encompass the totality of the use of imprisonment. It effectively legitimises the use of imprisonment for shop lifters, television licence fee evaders, fine defaulters, and a whole range of other offences which represent little threat of harm to society. The illusion of safety not only obscures the failure of criminal justice to effective respond to sexual violence it also legitimises the imprisonment of children, the mentally ill, those convicted of non-violent offences and all the other people that reductionists argue should not be imprisoned. 


[1] Consent however had been a relevant factor in common law since 1845 (Westmarland 2004:10) 


References

Brownmiller, S. (1975) Against Our Will: Men, Women and Rape, New York: Bantam Books,

Bumiller, K. (2008) In an Abusive State: How Neoliberalism Appropriated the Feminist Movement against Sexual Violence, Durham: Duke University Press

Christie, N.(1981) The Limits of Pain, Oxford: Martin Robertson

Davies, D (2014) In Plain Sight: The Life and Lies of Jimmy Savile, London: Quercus Editions

Davis, A. (1982) Women, Race & Class, London: The Women’s Press

Fitzgerald, M. and Sim, J. (1979) British Prisons Oxford, Basil Blackwell

Foucault, M. (1977) Discipline and Punish: The Birth of the Prison, 1991 edition,Penguin, London

Hulsman, L. (1986) ‘Critical criminology and the concept of crime’ in Contemporary Crises, Vol. 10, No. 1, pp. 63-80

Leander, K. (2013) ‘The Decade of Rape’, in Gilmore, J., Moore, J.M. and Scott. D. (eds.) Critique and Dissent, Ottawa: Red Quill Books.

Mathiesen, T. (1990) Prisons on Trial, London: Sage

ONS (2013) An Overview of Sexual Offending in England and Wales: Ministry of Justice, Home Office & the Office for National Statistics Statistics Online at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/ file/214970/sexual-offending-overview-jan-2013.pdf Accessed 24 June 2015

Snider, L. (1998) ‘Towards Safer Societies: Punishment, Masculinities and Violence Against Women’, British Journal of Criminology, Vol. 38, No. 1. pp 1-39

Westmarland, N. (2004) ‘Rape Law Reform in England and Wales’ School for Policy Studies Working Paper Series Paper Number 7, Bristol: Bristol University School for Policy Studies

Wilson, E. (1983) What is to be done about Violence Against Women? Harmonsworth: Penguin

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