ABSTRACT
The space between the myth and the truth contributes to a further myth – that if a man a woman knows, as one High Court judge put it to me, goes a bit too far when she does not want it, that may be misbehaviour but it is not a serious crime. As a result of that myth, the sympathy in a rape trial between parties who know each other will be with the defendant …
V Baird MP, House of Commons Debates, 24 April 2002
As this quotation suggests, the current law of rape grapples with predispositions concerning the prior familiarity of parties,1 itself a key component in the unfolding tale which ensues. However, this chapter includes other, unusual features. First, it documents a true research story, wherein a ‘reply’ was provoked by the clear ‘skewing’ of materials and arguments presented by a leading academic – a skewing that exemplified the very stereotypes and prejudices that academics are expected to resist and expose. In his essay ‘Is Alec a rapist?’, Professor John Sutherland suggests that readings of the rape/seduction scene in Tess of the d’Urbervilles2 have been shaped by literary-political fashions, culminating, for Sutherland, in a modern interpretation which ‘favours’ rape and unfairly demonises the character of Alec d’Urberville: ‘She who was seduced in 1892 is she who is raped in the permissive 1960s.’ The simple ‘polarisation’ of the notions of ‘rape’ and ‘seduction’ that this statement entails is dramatically undermined by Victorian caselaw, in which both ‘rape’ and ‘seduction’ could attract legal notice. This chapter takes issue with Sutherland’s account, demonstrating a selective use of the evidence and predisposition that is sadly still mirrored in modern court cases involving charges of rape.
