ABSTRACT
Feminist critiques of the law have often cited the rape trial as exemplifying much of what is problematic about the legal system for women. Smart (1989: 161), for example, argues that the rape trial is illustrative of the law’s juridogenic potential: that is, frequently the harms produced by the so-called remedy are as negative as the original abuse. Other legal theorists have created terms for the rape trial —“judicial rape” (Lees 1996: 36) and “rape of the second kind” (Matoesian 1995: 676)—in order to make visible the re-victimization that women can undergo once their complaints of rape enter the legal system. What is perhaps surprising about these kinds of claims is the fact that sexual assault and rape statutes in Canada and the United States have undergone widespread reform over the last four decades. For example, legislation in the 1970s through the 1990s in Canada and the United States abolished, among other things, marital exemption rules, which had made it impossible for husbands to be charged with raping their wives; corroboration rules, which required that complainants’ testimony be supported by independent evidence; resistance rules, which required that complainants show evidence that they physically resisted their attackers; and recent complaint rules, which obligated complainants to make prompt complaints in order that their testimony be deemed credible. In addition, rape shield provisions were introduced, restricting the conditions under which complainants’ sexual history could be admissible as evidence. So, given this kind of reform, why do rape trials continue to defy the law’s statutory objectives? Following Conley and O’Barr (1998: 3), I suggest that the rape trial’s failure to deliver justice to rape victims lies not in the details of rape and sexual assault statutes but rather “in the details of everyday legal practices.” And, because language has been shown to play a crucial role in everyday legal practices, this chapter demonstrates how linguistic analysis can reveal some of the discriminatory qualities of rape trials as well as ways that such qualities have been contested.
