7 Pages


BySandra Walklate, Jennifer Brown

As Joan McGregor has illustrated in Chapter 3, the law has provided a crucial and contested framework that has historically informed how sexual violence has been understood and responded to: hence the significance of feminist informed campaigns of different theoretical persuasions that have focused on the importance of the law as a vehicle for change. However, as Smart (1989) cogently argued, changes in the law have not necessarily yielded the kinds of reforms that feminists were looking for. The contemporary persistence of attrition in cases of rape, even in countries where the law has been changed to make the act less penis-and heterosexual-centred and more accommodating of different weapons, orifices and sexualities, stands as testimony to the resistance of the law in theory to impact upon the law in practice. (See in particular Daly and Bouhours 2009; Lovett and Kelly 2009.) Part of the explanation for that continued resistance lies with the central preoccupation of the law with incidents, and the provision of evidence associated with particular incidents, as opposed to the processes that comprise real life. This preoccupation with incidents not only drives how the law itself makes sense of the cases brought before it, but also informs much criminal justice practice. In cases of sexual violence this classically presents itself as ‘her word against his’ and the need for corroborative evidence to support ‘her words’. Given the seriousness of the likely punishment outcomes for a defendant found guilty of rape, such a concern with evidence ‘beyond reasonable doubt’ is perhaps understandable but not necessarily in and of itself defensible. In this part of this book we gain an insight into how disciplines outside of the law frame sexual violence, and the implications that these different ways of thinking might have for criminal justice practice.