Rape, Resistance and Women's Rights of Self-Defence

1993 ◽  
Vol 26 (2) ◽  
pp. 146-154 ◽  
Author(s):  
Gail Reekie ◽  
Paul Wilson
Keyword(s):  
Criminal Justice ◽  
Sexual Assault ◽  
Sexual Violence ◽  
Sexual Intercourse ◽  
Criminal Justice Systems ◽  
The Law ◽  
Serious Injury ◽  
Definition Of ◽  
Physical Resistance ◽  
Self Defence

The legal and criminal justice systems proceed on the masculinist assumption that a woman's body communicates her lack of consent to sexual intercourse and that a woman will offer strong physical resistance to sexual violence. Recent changes to the legal definition of non-consent as a positive and performative act provide women with greater protection under the rape laws. Women are unlikely to be protected by the law, however, if their physical resistance to sexual assault results in death or serious injury. This paper argues that, to ensure that women subjected to sexual violence have full equality and justice before the law, all manifestations of women's resistances must be seen as acceptable and lawful acts of self-defence.

Rereading Rape in the Critical Canon

differences ◽  
2021 ◽  
Vol 32 (2) ◽  
pp. 122-160
Author(s):  
Erin A. Spampinato
Keyword(s):  
Sexual Assault ◽  
Sexual Violence ◽  
Literary Criticism ◽  
Rape Law ◽  
The Law ◽  
Criminal Conduct ◽  
Forms Of Violence ◽  
As If ◽  
Physical Outcomes

This essay identifies what the author terms “adjudicative reading,” a tendency in literary criticism to read novels depicting sexual violence as if in a court of law. Adjudicative reading tracks characters’ motivations and the physical outcomes of their actions as if novels can offer evidence, or lack thereof, of criminal conduct. This legalistic style of criticism not only ignores the fictionality of incidences of rape in novels, but it replicates the prejudices inherent in historical rape law by centering the experiences of the accused character over and against the harm caused to the fictional victim of rape. By contrast, the “capacious” conception of rape proposed here refuses to locate rape in a particular bodily act (as the law does), rejects the yoking of rape’s harms to a particular gender, and understands various forms of violence as equally serious (rather than creating a hierarchy of sexual assault, as current legal conceptions tend to do).

scholarly journals (DE)CONSTRUCTING THE “PERFECT RAPE VICTIM”: AN ANALYSIS OF SEXUAL ASSAULT AND SURVIVOR DISCOURSES IN THE CANADIAN CRIMINAL JUSTICE SYSTEM

2021 ◽  
Author(s):  
Vanshika Dhawan ◽  
Marty Fink
Keyword(s):  
Criminal Justice ◽  
Sexual Assault ◽  
Criminal Justice System ◽  
Critical Discourse Analysis ◽  
Justice System ◽  
Rape Myths ◽  
Attrition Rates ◽  
Sexual Assault Survivors ◽  
Spousal Rape ◽  
Definition Of

The Canadian criminal justice system has seen many progressive changes to the way sexual assault cases are investigated and prosecuted over the past several decades. From the acknowledgement of spousal rape to the introduction of rape shield provisions, the law has seemingly changed to broaden the definition of what is considered a sexual assault. However, sexually-based offences are still vastly underreported and have the lowest attrition rates of indictable offences. Larger societal discourses around sexual assault and survivor-hood consist largely of rape myths, such as the idea that “real rape” only occurs when an “undeserving” woman is sexually assaulted by a “stranger in the dark.” These discourses permeate the Canadian criminal justice system, negatively influencing the experience of survivors who do not fit the narrow mould “real rape.” Drawing from Norman Fairclough’s Critical Discourse Analysis and Stuart Hall’s Discursive Approach, this Major Research Paper traces the effects of these discourses on constructions of sexual assault and survivor-hood in the legal system. Through a theoretical analysis of existing literature on the experiences of sexual assault survivors, this paper also examines the ways in which the language we use to describe sexual assault serves to cement rape myths and invalidate survivor experiences in every stage of the Canadian criminal justice system.

The Legal Enforcement of Integrity

2020 ◽  
pp. 35-62
Author(s):  
Stuart P. Green
Keyword(s):  
Criminal Justice ◽  
Sexual Assault ◽  
Criminal Justice System ◽  
Justice System ◽  
Political System ◽  
Legal Discourse ◽  
Bodily Integrity ◽  
Moral Concepts ◽  
Legal Enforcement ◽  
The Law

Talk of “integrity” is ubiquitous in law and legal discourse: Protecting the integrity of our political system has been cited as a basis for anti-corruption laws; preserving the integrity of the legal profession as a principle underlying the rules of lawyer ethics; ensuring integrity in policing and in the wider criminal justice system as a justification for excluding evidence obtained in violation of the Constitution; and protecting bodily integrity as a potential goal for the law of rape and sexual assault. This chapter examines what integrity means in each of these contexts, what these uses have in common, and whether thinking about these various rules and doctrines in terms of integrity rather than other moral concepts leads to any practical difference in outcome. It also asks what the examination of integrity in the law can tell us about the concept of integrity in other contexts.

scholarly journals What do we know about girls in the care and criminal justice systems?

2017 ◽  
Vol 16 (3) ◽  
pp. 134-143 ◽  
Author(s):  
Claire Fitzpatrick
Keyword(s):  
Criminal Justice ◽  
Justice System ◽  
Review Of The Literature ◽  
Policy And Practice ◽  
Content Type ◽  
Looked After Children ◽  
Criminal Justice Systems ◽  
The Law ◽  
Future Policy ◽  
And Control

Purpose The purpose of this paper is to highlight the neglect of girls in care who come into conflict with the law, arguing that a gender-neutral approach in this area risks further marginalising an already vulnerable population. Design/methodology/approach A critical review of the literature and current policy climate is undertaken to explore what is known about the experiences of females in the justice system, as well as knowledge gaps. Findings Evidence on the prevalence and nature of offending by girls in care is limited. However, as looked after children, girls may be more likely to have their own behaviour unnecessarily criminalised. Whilst females and males share some prior experiences of victimisation and trauma, girls also have distinct needs and may be assessed and managed by state care and control systems in very different ways. Research limitations/implications The paper is not based on primary research and does not present a systematic review of the literature. Practical implications The need to listen to girls and young women, and a far greater recognition of backgrounds of trauma must underpin future policy and practice. Diversion from the formal criminal justice system wherever possible is also a key goal to aspire to. Originality/value This paper focuses on the specific experiences of females. It calls for a gender-sensitive, trauma-informed approach to working with girls and women from the care system who come into conflict with the law, and questions the value of criminalising those whom the state previously deemed to be in need of welfare and support.

Forcible Rape

1977 ◽  
Vol 23 (2) ◽  
pp. 136-153 ◽  
Author(s):  
Gerald D. Robin
Keyword(s):  
Criminal Justice ◽  
Sexual Assault ◽  
Criminal Justice System ◽  
Justice System ◽  
Reasonable Doubt ◽  
Rape Victims ◽  
Basic Definition ◽  
Standard Of Proof ◽  
Legal Position ◽  
Definition Of

Forcible rape is unique among crimes in the manner in which its victims are dealt with by the criminal justice system. Raped women are subjected to an institutionalized sexism that begins with their treatment by the police, continues through a male-dominated criminal justice system influenced by pseudo-scientific notions of victim precipitation, and ends with the systematic acquittal of many de facto guilty rapists. The codification of sexism centers in the legal elements involved in proving guilt and obtaining convictions. In effect, the law's focus upon corrob oration, consent, and character has established a standard of proof in rape cases that is more stringent than "beyond a reasonable doubt." Nonetheless, the processing of rape victims by the criminal justice system is gradually becoming more sensitive, facilitative, and reflective of the trauma experienced by the women involved. The legal position toward the crime is also becoming less sexist and more responsive to the realities involved in sexual assault. Both of these changes have come about through the efforts of the women's liberation movement. The most promising means for achieving more humane and dignified treatment of rape victims in the arms of the law have been "rape crisis centers." This approach to eliminating institutionalized sexism surrounding forcible rape has been significantly aided and abetted by successful attempts to modify the basic definition of the crime and to revise the legal elements needed for conviction.

Sex

2018 ◽  
pp. 215-273
Author(s):  
Suzannah Lipscomb
Keyword(s):  
Sexual Abuse ◽  
Sexual Assault ◽  
Sexual Intercourse ◽  
Use Of Force ◽  
Marriage Formation ◽  
Definition Of ◽  
False Accusations

Section 1 considers sexual intercourse outside marriage, known as paillardise. Drawing on two hundred cases, it examines attitudes to sexual sin and the circumstances that aroused suspicion. It looks at the prevalence of sex after engagement, and how sex acted as a step in marriage formation, meaning women could be lured into sex by promises to marry. It also considers sex outside the context of promises to marry, and the cohabitation of unmarried couples. Section 2 considers over a hundred cases of sexual assault, many outside the legal contemporary definition of rape. It considers the identity of the predators, the circumstances of sexual abuse, the use of force and coercion, plus threats, promises, and persuasion. It also considers sexual assault in the context of conditional consent, the consequences of assault for women, and women’s strategies in the context of rape and abuse. It finishes by looking at false accusations.

scholarly journals Law Enforcement against Children's Criminal Action Based On Law Number 11 of 2012 Concerning Children Criminal Justice Systems

2020 ◽  
Vol 8 (06) ◽  
pp. 226-235
Author(s):  
Feddy Hantyo Nugroho ◽  
Rodliyah ◽  
Amiruddin
Keyword(s):  
Criminal Justice ◽  
Law Enforcement ◽  
Restorative Justice ◽  
Criminal Law ◽  
Justice System ◽  
Normative Study ◽  
Criminal Sanctions ◽  
Criminal Justice Systems ◽  
Objective Interpretation ◽  
The Law

This research was conducted to analyze and find out how criminal law policy is in the effort to apply criminal sanctions against children facing the law in terms of Law No. 11 of 2012 concerning the Criminal Justice System for Children and whether the concept of Diversity can be applied in the process of law enforcement against children involved in Narcotics Crimes. This research is a normative study, to analyze the legal material related to the problem under study, the author uses the Interpretation, Subjective and Objective Interpretation instruments, after that the authors process these legal materials by deductive thinking. The results obtained from the study that the drafting of Law Number 11 of 2012 is a replacement to Law Number 3 of 1997 concerning juvenile justice conducted with the aim of establishing a judiciary that truly guarantees the best protection of the interests of children facing the law as nation's next generation. The concept of Restorative Justice is one of the important things in Law Number 11 of 2012 where restoring the situation as it used to be the main goal and also no less important is the form of criminal sanctions that can be imposed on Children where criminal sanctions that are harsh and miserable are used as ultimum Remedium is not as a premium remedium especially as a maximum remedium. The concept of diversion that should be applied in Indonesia in the future, should be a combination of the concept of diversion that is applied in Australia, namely Police Diversion which is combined with the process of handling cases with the diversion prevailing in Indonesia today.

scholarly journals A Comparative Analysis of the Application of the 1951 Refugee Convention to Victims of Sexual Violence in South Africa, Tanzania and Uganda

2020 ◽  
Vol 23 ◽  
pp. 1-55
Author(s):  
DR Oghenerioborue Esther Eberechi
Keyword(s):  
South Africa ◽  
Comparative Analysis ◽  
Criminal Justice ◽  
Sexual Violence ◽  
South African ◽  
Sexual Offences ◽  
Refugee Convention ◽  
Urban Refugees ◽  
Criminal Justice Systems ◽  
The Status

This article seeks to ascertain whether refugees who are victims of sexual violence in contracting states enjoy access to courts per Article 16 of the United Nations (UN) Convention Relating to the Status of Refugees (1951 Refugee Convention). It does so by comparing the situation of urban refugees in South Africa with that of refugees in camps in Tanzania and settlements in Uganda, beginning with a description of what "accessing courts" entails in the respective domestic criminal justice systems and of what mechanisms are in place for addressing sexual offences. It further uses the qualitative analysis of documented prosecuted cases of sexual violence in South African, Tanzanian and Ugandan courts between 2013-2017, 2009-2016 and 2013-2017 respectively to establish if these countries prosecute cases of sexual violence suffered by their citizens and whether claims of such violations affecting refugees also enjoy the same treatment. The enquiry found that of 328 documented prosecuted cases of sexual offences in South Africa, victims who were citizens were a majority in number. In Tanzania there appeared to be few prosecuted cases of sexual violence against refugees, but given that limited documentation is available, it is difficult to assess the actual figures. In Uganda the 187 recorded prosecuted cases of sexual offences in the years of investigation all related to citizens, despite the introduction of a mobile court to refugee settlements. Overall, this paper recommends that the countries under review adopt measures to ensure the prompt prosecution of cases of sexual violence against refugees and thereby enable them to access courts and testify against their assailants.

Capable Women, Incapable States

2020 ◽  
Author(s):  
Poulami Roychowdhury
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Sense Of Self ◽  
Political Mobilization ◽  
The Public ◽  
Legal Enforcement ◽  
Criminal Justice Systems ◽  
The Law ◽  
The Public Sphere

How do women claim rights against violence in India and with what consequences? By observing how women navigate the Indian criminal justice system, Roychowdhury provides a unique lens on rights negotiations in the world’s largest democracy. She finds that women interact with the law not by following legal procedure or abiding by the rules but by deploying collective threats and doing the work of the state themselves. They do so because law enforcement personnel are incapacitated and unwilling to enforce the law. As a result, rights negotiations do not necessarily lead to more woman-friendly outcomes or better legal enforcement. Instead, they allow some women to make gains outside the law: repossess property and children, negotiate cash settlements, join women’s groups, access paid employment, develop a sense of self-assurance, and become members of the public sphere. Capable Women, Incapable States shows how the Indian criminal justice system governs violence against women not by protecting them from harm but by forcing them to become “capable”: to take the law into their own hands and complete the hard work that incapable and unwilling state officials refuse to complete. Roychowdhury’s book houses implications for how we understand gender inequality and governance not just in India but in large parts of the world where political mobilization for rights confronts negligent and incapacitated criminal justice systems.

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