Is the Problem of Rape Myths in the Criminal Justice System Overstated?

(Picture card ‘this is not an invitation to rape me’ from Rape Crisis Scotland.)

– Dr Nikki Godden (Lecturer in Law, Newcastle Law School) – nikki.godden@newcastle.ac.uk

This post was first published on Inherently Human: Critical Perspectives on Law Gender and Sexuality

The low conviction rate for rape – approximately 6 per cent where convictions are measured out of the number of reported cases – and the high rate at which rape cases filter out of the criminal justice system before trial is well known. One common explanation for these statistics is that rape complainants and cases are judged by reference to rape myths, which are false assumptions as to what constitutes rape, and when, where and between whom sex is typically non-consensual. Examples of rape myths are propositions such as: a woman wearing a short skirt is more likely to have consented to sex than a woman wearing less revealing clothing; rape victim-survivors report the incident immediately to the police; rape victim-survivors typically physically resist the perpetrator; subsequent sexual engagements between two people are more likely to be consensual than the first time they had sex. Failing to reflect women’s lived experiences of sexual violations, it is often said that reference to these myths result in complainants being treated with suspicion, cases not being adequately investigated or prosecuted, and defendants being acquitted relatively frequently. However, in an article in the Oxford Journal of Legal Studies which was summarised in the media (see here for example), Helen Reece argues that ‘rape myths’ are not as widespread as is commonly claimed, and do not hinder the investigation and prosecution of rape cases to the extent that is argued by many researchers, feminist activists and policy-makers.

Reece argues that the ‘rape myth’ explanation for the high attrition rate and low conviction rate is overstated. She explains that: one, ‘some of the attitudes are not myths’; two, ‘not all the myths are about rape’; and three, ‘there is little evidence that the rape myths are widespread’. While her point that the term rape myths has become shorthand for a wide collection of assumptions, attitudes and stereotypes about rape, sex, sexual behaviour and so on is fair, it is where she goes from here that is problematic. Reece seems to suggest that there is little that can be done to improve the attrition rate and conviction rate for rape cases. While improving the conviction should not necessarily be the main aim of reform in this area, and instead the focus should be on improving the treatment of victim-survivors through investigation, prosecution and trial (for example, see the treatment of victim-survivors at trial in the Oxford abuse ring case), Reece does not go down this road. Rather, her argument risks overshadowing and undermining efforts to improve the criminal justice response to rape and the treatment of victim-survivors. Indeed, she begins the article by arguing that the criminal justice response to rape does not need to be understood as a particular problem which should engender particular attention.

The Particular Problem of Rape

The ‘justice gap’ – that is, the large gap between the number of reported rape cases and the number of cases which result in a conviction for rape (the basis of the 6 per cent national conviction rate) – is frequently cited in academic articles and in the media to justify a focus on improving the criminal justice response to rape. Reece draws statistical comparisons to highlight high attrition and low conviction rates for some other serious offences, such as burglary, suggesting that there is no justification for a focus on rape (p 5). However, pointing to other crimes which have equally poor attrition and conviction rates does not mean that there is no problem to be addressed, although it does raise the question: why should time, energy, and resources be spent on attempting to improve the criminal justice response to rape in particular? While Reece anticipates and addresses answers to this question, she fails to adequately challenge the strongest and most significant reason for focusing on rape – the point that it is a gendered harm. Reece recognises that rape is ‘particularly harmful’, justifying academic, political, and legal attention, even if some other crimes have comparable attrition and conviction rates (when measured in the same ways; p 6). However, she challenges this position, noting that some feminists have argued that over-emphasising the ‘intrinsic trauma’ of rape may be a factor preventing women from recognising that they have been raped if they do not experience this form or extent of harm (p 6). This, however, is a narrow understanding of the harm of rape. Rape may be traumatic and may be psychologically and emotionally harmful, but what justifies particular attention to the crime is that it is a gendered harm – one which is most commonly perpetrated by men against women, reflecting and reinforcing male power and gender inequalities. As such, improving the criminal justice response to rape deserves and requires particular attention and effort, not only to secure justice in individual rape cases but to address gender injustices at the societal level.

Rape Myths that are Not Myths ; And Myths that are Not about Rape

Reece also argues that some of the ‘rape myths’ are not really myths, in the sense that they cannot be proven to be false. For example, she says the idea that there are a high number of false allegations of rape is often described as a myth. There is no evidence that there are more false allegations for rape than for any other crime, but there is little proof that there is not a high number of false allegations of rape, and therefore as this cannot be proven one way or the other it is wrong, she says, to label the false allegations assumption as a myth (pgs 16-17). Reece’s analysis of claims that are labelled myths when they are not factually proven as false is technically accurate, but it obscures the fact that the assumptions made are problematic.

This leads into another point she makes – that claims are given the status of myths when feminists argue that they are ethically or normatively wrong rather than wrong in fact. While Reece acknowledges that the ethical status of some commonly termed rape myths is acknowledged by some scholars (see references on pgs 9-10), she argues that it is ‘disingenuous’ to label the presumptions as myths (pg 22). Reece is right in so far as the label ‘rape myth’ has become shorthand for a variety of assumptions, gendered stereotypes, social norms, and so on. And some of these myths are primarily about sex – for example, reading or misreading an invitation to have coffee as an indication of willingness to have sex. But rape and sex are only distinguished by the presence/lack of consent and reasonable belief in consent (see pg 23). Assumptions as to when, where, and with whom women consent to sex/do not consent to sex are about the line between sex and rape, and what constitutes a criminal offence and what are otherwise lawful sexual relations. I fail to see how an assumption regarding consent to sex does not also raise assumptions about rape. But, in any event, if the assumptions, norms, and so on were more clearly conceptually distinguished and labelled, I would have no objection. What is objectionable is that Reece’s points about the mis-labelling of rape myths supports an approach which takes social, political, and legal attention away from addressing sexual violence against women, and instead focuses on abstract ethical debates.

Rape ‘Myths’ and the Conviction Rate

Reece argues that rape myths – presumably understood in the broad sense of incorporating ethical statements – do not affect the attrition and conviction rate to the extent that is commonly argued. Rather, she says:

‘There are a lot of [rape] cases where there’s no other evidence than one person’s word against another. Both sides are saying they had sexual intercourse but [don’t agree that it] took place in the [same] way … I don’t think there’s much more we can do to increase the conviction rate. I would like to see a more straightforward debate about the issue.’

But it is not that straightforward. From the facts, evidence, and testimonies, criminal justice personnel, judge, jurors, and so on must interpret whether the complainant consented and whether the defendant held a reasonable belief in consent. Interpretations of the circumstances and who is telling the ‘truth’ – the complainant or defendant – are informed by gendered norms regarding sexual behaviour. What counts as evidence is also contested – notably when, if at all, a complainant’s sexual history can be used as evidence of consent, or as grounds for reasonable belief in consent. Part of Reece’s point, though, is to challenge the extent to which social norms and rape myths do influence interpretations of evidence and the complainant’s and defendant’s perspectives. In this respect, she critiques the methodologies of research studies which investigate ‘rape myth acceptance’. Reece raises some very good and valid points, and feminists and others writing on rape and sexual violence should pay close attention to the studies they are citing as evidence of public attitudes towards rape. What I do not think necessarily follows is that problematic attitudes towards sex, and women’s sexual choices and behaviour in particular, are not as widespread as is commonly claimed. Looking at the wider picture illustrates this: for example, victim-survivors’ experiences of the criminal justice system and how they can be treated by criminal justice personnel; or public and media commentary on recent attacks, such as in Steubenville, Ohio; or the everyday sexism and sexual objectification that women experience.

In addition, it is not just only the conviction rate that is a problem, but the way that victim-survivors are treated in the criminal justice system and at trial. Sometimes this relates to attitudes that are held by criminal justice personnel, sometimes it is a lack of regard for or lack of knowledge about rape victim-survivors’ experiences and needs, and sometimes it may be a lack of resources for victim-survivors. While the criminal justice process should be improved to ensure that victim-survivors are properly treated and are not subject to further harm, these points do also relate to the conviction rate. The high rate of non-reporting is related, in part, to victim-survivors’ perceptions of inadequate criminal justice responses to rape, and some victim-survivors withdraw their complaint because of a negative experience in the criminal justice system. Reece’s argument risks overshadowing and undermining efforts to challenge gendered social norms which restrict women’s sexual choices and to improve the criminal justice response to rape, and the treatment of victim-survivors.