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Issues of sexuality and the body have political significance, according
to Foucault (1980:125) since sex is located at the point of
intersection of the discipline of the body and the control of
populations. As Smart points out (1987:92) women's bodies are legally
significance because they are the site of biological reproduction, and
therefore touch on issues concerning inheritance and legitimacy. To
achieve this, the law both draws heavily on medical knowledge of the
body to establish legal questions and control. In this chapter, I show
how the portrayal of women in rape trials reflects myths that are
rooted in medical discourses about the nature of women's bodies and of
female sexuality, embedded in religious, moral and philosophical
beliefs which can be seen to exert control over the court proceedings.
Such evidence is used to contest the woman's testimony and caste doubt
on her credibility.
Foucault (1991: 106) outlines in the History of Sexuality
how in the seventeenth century the deployment of alliance, by which he
meant the system of marriage and kinship ties, was superseded, as a
result of economic and political changes that rendered such ties less
stable, by a new apparatus which he referred to as the deployment of
sexuality. This involved the development of discourses of power and
control, often emanating from the newly developing disciplines of
psychology and medicine, over the human body. As a result, Foucault
argued, the law 'operates more and more as a norm, and that the
judicial institution is increasingly incorporated into a continuum of
apparatuses (medical, administrative and so on) whose functions are for
the most part regulatory' (Foucault 1991:144). The rape complainant,
who is usually unmarried, a single mother, separated or divorced, can
be seen as occupying space beyond the deployment of alliance and
therefore in particular need of regulation and control. This analysis
of the depiction of the woman's body in rape trials and its use as
evidence of her credibility reflects such mechanisms of power and
control operating within the legal discourses.
This article draws on research conducted for a Channel 4 Dispatches documentary,
Getting away with Rape
which involved the monitoring of all contested rape trials over a four
month period at the London Central Criminal Court, the Old Bailey in
the Summer of 1993. Researchers sat in on trials and took transcripts
of 30 trials and some official transcripts were also obtained. The
research indicated that many rapists to go free, endangering other
women and giving men a licence to rape again. This picture is confirmed
by the official Home Office statistics which indicate that only a small
proportion of reported rapes result in a conviction. Although the
number of reported rapes has more than doubled between 1985 and 1993
the conviction rate for cases reported to the police according to Home
Office figures has decreased from 24 per cent in 1985 to only 8.6 per
cent in 1994 ( Home Office Statistics 1993). In this chapter I show how
the use of evidence regarding the complainant's bodily processes and
the reliance on medical opinion, are tools used by the defence to cast
doubt on the woman's evidence and is an important factor in undermining
her credibility.
Court procedures imbalance the trial in favour of the defendant making
it very difficult for jurors to convict. Juries are directed that in
rape trials, it is a question of judging one person's word against
another. Yet they are instructed to judge the credibility of the
defendant and complainant according to totally different criteria. In
the defendant's case what is considered relevant it is his reputation
based on his lack of previous convictions and his occupation. In the
woman's case it is her character and past sexual history.
Various manifestations of misogyny have centred on the female body, all
of which can be seen as forms of control over women's autonomy - from
foot binding, circumcision, corsetry, to the more modern less overtly
misogynist practices of plastic surgery, constrictive fashions (wearing
of high heels and tight skirts) and dieting. In consumption-driven
capitalistic societies, anxieties about controlling desires become
displaced onto anxieties about the body which are frequently focused
around eating disorders and sexuality ( Vines: 1993 :11). Rape trials
where the woman's body, its secretions and its desires is the subject
is close examination, function as a form of control over female
sexuality. By focusing on the woman's body, rather than on her
testimony, the impression is given that she ruled by her body and
therefore her 'consent' or 'rationality', the core issue of dispute in
rape trials, is implicitly questioned. Women are blamed for not taking
sufficient precautions to protect themselves from male violence or for
actively provoking violence by wearing short skirts or low tops,
fashions which are actively promoted by the fashion industry, and if
not adopted by young women, ironically render them unattractive,
'dogs', or lesbians.
It is recognised that women's reproduction is subject to legal control.
The law's involvement in the regulation of desire is less well
appreciated. Male and female desire has to this day been conceptualised
very differently. Male desire is regarded as more natural, more
aggressive and more straightforward than female desire. In the
nineteenth century, on the other hand, female desire was openly
described as more dangerous and in need of legal control. The fear of
the insatiable female is overtly expressed in the term 'nymphomania'
resonating with the insatiable sexuality of women, devouring, depraved,
diseased', conjuring up 'an aggressively sexual female who both
terrifies and titillates men' (See Groneman, 1994: 337). The laws on
divorce and on the control of prostitution exemplify how the legal
controls operated in a discriminatory way in the nineteenth century.
The Divorce Act of 1857 stated that a husband could divorce his wife
for a single act of adultery whereas a woman has to prove adultery plus
bigamy, cruelty, desertion, incest, rape or unnatural offences to
obtain a decree. The Royal Commission on the Contagious Diseases Acts
argued that there is 'no comparison to be made between prostitutes and
the men who consort with them'. In the one case, the offence is
committed as a matter of gain, in the other it is an irregular
indulgence of a natural impulse. Walkowitz (1980) in her study of
Victorian prostitution illustrated how working class women's bodies
came to be seen as the sites of dangerous sexuality and as carriers of
disease in need of draconian methods of regulation. The Contagious
Diseases Acts of the 1890s gave police powers to restrain girls
considered to be prostitutes and to force them to undergo compulsory
medical examinations, while leaving their clients free to re infect
them immediately afterwards.
The portrayal of the female body in rape trials reflects such
contradictions. The woman's body is seen as dangerous, seductive and
unpredictable and, therefore, in need of control. Defence counsels and
judges insinuate that women are neither honest nor aware of their
desires, implying that they are ruled by their bodily urges. Judge
Dean, in his summing up of a case in 1990 which he said lacked
independent corroboration, told the Court: 'As gentlemen of the jury
will understand, when a woman says 'No' she doesn't always mean 'No''.
When criticised later he replied: 'In saying that I was simply
repeating something I have heard over the last forty years. If that
remark, as it seems to have done, has upset certain people, I regret
it. I did not wish or intend to upset anybody' (Guardian April 12,
1990).
He is voicing a common view which is used to support the argument that
the women do not share male rationality, in other words their evidence
is no evidence at all. If women do not know whether or not they want
sex, then rape cannot happen as their will is always confused. It is
argued then that women regret their lust and are thus prone to make
false allegations, to pretend that they did not consent at the time.
This makes them irrational and untrustworthy. If women do not know
their own minds the whole concept of consent becomes irrelevant and the
very definition of rape as sexual intercourse without consent is
undermined. To return to Judge Dean he added that he might repeat the
remark if he was trying a case where there was no support of any
allegation of rape. Audrey Wise, Labour MP said the judge's comment was
appalling. 'It is an invitation to rape and it makes men feel it is
okay. I do not think this man should be a judge'.
'They say No but mean yes', refers both to the woman's hesitation at
appearing to be sexually desiring to protect their reputation, and to
the myth that women do not really know what they desire, as they are
irrational beings. There are various ideas confused here. Clearly, in
the nineteenth century, many women feigned resistance when they really
desired sex, but women's pleasure in sexuality is so taken for granted
to-day that there is no reason why such feigning should still take
place. There is a world of difference between feigning and
refusing.
The argument that 'women mean yes when they say no' has dangerous
implications. If the female body has an existence of its own, totally
out of control of its occupant, evidence of lack of consent is rendered
irrelevant. Implicit in these ideas is that not only does a woman not
know her own desires, but that she is responsible for the
'uncontrollability' of male desire once it is aroused. The defence
counsel then puts arguments forward such as 'Did she lead him on,
prostitute herself, or consent and then change her mind at the last
minute when the man was unable to control himself?' The idea that male
sexuality once aroused is uncontrollable firmly shifts the blame onto
the woman. Despite her own irrationality and lack of control, she is
expected to exercise control on behalf of both of them.
Evidence in British trials is presented to imply that the woman enjoyed
the experience against her better nature or in order to support the
man's argument that she consented. In other words 'she said no but
meant 'yes': Witness this exchange which comes from one of the trials
Zsuzsanna Adler (1987: 10) covered in her research:
Prosecution Counsel (PC) And you say she consented
Defendant (D) I didn't say she consented
PC: Did she agree
D: She didn't agree
PC: Having said no at first she just gave in?
D: She enjoyed it
The judge intervened 'The enjoyment wiped out her initial resistance - is that what you are saying?'
D: Yes
This discussion is important as it
depicts one of the major underpinnings of rape trials. The conception
of what comprises sex is based on an archetypal male model where a male
predator overcomes the resistance of a passive female whose resistance
is against her better interests. Penetration of the penis is what is
presumed to give pleasure to women regardless of any foreplay or other
sexual activity and assumed evidence of 'enjoyment' represents
consent.
The assumption here is that a woman could want sex without even knowing
herself. It reduces the whole issue of consent to absurdity, in which
the woman is denied any subjectivity or knowledge of her own desire.
This becomes clear in the cross examination of the defendant:
Prosecuting Counsel: You gave her a kiss but there was no response.
Defendant: No
PC: That is because you frightened her into submitting?
D: No... Women, they're really complicated you know. I've come across
women who play hard to get, but when I make a move they respond.. I'm
saying she wanted it. Her body wanted it but her mind was somewhere
else.
PC: You told us she wasn't a good conversationalist?
The response of the prosecuting counsel
is as baffling as the defendant's statement. He does nothing to counter
the defendant's assertion that the woman really wanted sex by referring
to her own account of the assault, in which she described how she had
tried everything to get him to go, making it quite clear that she never
wanted to have sex with him. He does not suggest to the jury that the
defendant's sexist views corroborate her version of events, as he does
not believe that when women say 'no', they mean 'no' and that by
arguing that she was lubricated, he is asserting his right to take the
decision for her. Her subjectivity is irrelevant. This could be seen as
an example of a discourse reflecting 'the hysterization of women's
bodies described as 'which he argued was one of the mechanisms of
knowledge and power centring on sex' (See Foucault 1990:104).
Arguments about whether or not women were 'lubricated' are particularly
pernicious. A woman police officer I spoke to, who had been on the
special course on sexual assault at Hendon Police Training college in
London, told me quite fallaciously that forensic tests could ascertain
from the fluids whether or not the complainant had consented. If some
police believe this, jurors are often equally confused by the lack of
injuries. It is understandable that such an argument can plant a seed
of doubt in the jury's mind, particularly if not refuted by the judge.
Part of the difficulty lies in the judicial view of the relation
between sex and violence. Forcible persuasion where a degree of
violence occurs is axiomatic. Violence during a sexual encounter is
somehow neutralised; Violence is a legitimate part of the 'courting'
process. Even where the complainant gives evidence of violent assault
or threat, this does not necessarily preclude her consent. The defence
will argue that only extensive injury or evidence of her active
resistance, provides adequate proof of her non consent. The woman is a
sexual being, her rationality is therefore always debatable and her
claim of rape always suspect. Men know best what her body really wants,
and she is not more than her body. This is what renders women fickle
and untrustworthy.
The trial focuses on what men define as sexuality, not on women's
experience of sex or rape. Men are presented as having a biological
need for sex. Sexual appetite, it is argued, is synonymous with hunger.
If, therefore the man is deprived of sex, a sexual assault is
understandable, even pardonable. The man's alleged sexual frustration
is then presented as an excuse for the offence and legitimates a low
sentence. An example of this is where Sir Harold Cassel, aged 72
(Kennedy 1992: 111) freed a child molester, saying his pregnant wife's
lack of sexual appetite had caused three sexual assaults on his 12 year
old stepdaughter. He argued 'pregnancy led to a lack of sexual appetite
in the lady and considerable problems for a healthy young husband'. He
went on to accuse the woman of 'encouraging' the assaults. The mother
described how her daughter's life had been ruined and went on to say
'As far as the sexual side, my husband did not go without the whole
time through my pregnancy, so I do not know where the judge got his
information from'.
In rape trials as in pornography, the female body is publicly portrayed
and debated. It is her body, not his, that is put on trial. Her body's
secretions and underclothing are scrutinised, her photographed injuries
distributed as exhibits, her body's level of sexual arousal debated
without regard to her testimony. She is objectified in similar fashion
to her objectification in rape itself. This is the meaning of the term
'judicial rape'. The analogy with porn is relevant here:
'Porn puts into circulation images of
sexuality that have definite meanings connected with them; sexual
pleasure for men is initiation and dominance, and for women submission
to men's depersonalised needs. The problem is that these meanings feed
general definitions of sexual identity and sexual activity' (Coward
1984: 176).
Catherine MacKinnon (1987) drew attention
to the rape trial as a pornographic spectacle as by being forced to
speak about sex, the woman herself becomes a pornographic vignette. The
complainant must describe in intimate detail every part of her body
that was assaulted in words which would embarrass women to refer to at
all, let alone in such a public setting out loud.Questioning women
about male penetration can be seen as giving pleasure synonymous to a
pornographic vignette.
Judges frequently direct complainants to 'speak up' in the lofty
setting of most Victorian court chambers. For a woman, unused to
speaking in public it can be shattering. The paradox is that the very
use of such language, referring to private sexual parts of the anatomy,
is sufficient to render a woman 'unrespectable'. Many women never say
such words even in the privacy of their homes, let alone to strangers
in open court. Except in pornography the kind of details described in
rape cases would never be articulated. It is for this reason perhaps
that so many women find being cross examined such a nightmare. Smart
(1990: 205) aptly comments 'She is required to speak sex, and
figuratively to re-enact sex : her body and its responses become the
stuff of evidence. The act of describing in exact detail what the man
did and how she responded is enough subtly to render her
'unrespectable' .
Various themes relating to the female body emerge with regularity in
rape trials. The frequent portrayal of the female body as bloody or
slightly disgusting is combined with its portrayal as dangerous,
enticing and brimming with uncontrolled sexuality, incitement to male
lust, implicitly a danger to the moral order. Comments made by defence
counsels in cross examination are often fused with desire and
repugnance, disgust and fascination. In one trial the defence counsel
asked 'And that he (the defendant) was able to insert his penis easily
because you were turned on in the normal fashion - nothing to do with
periods or anything else; that is right, isn't it'? Alison Young's
(1990) analysisof the representation of women's bodies in Greenham
women's anti-nuclear protest is relevant here. She argued that women
were subjected to defilement through the language and images of
revulsion and disgust which equated them with excrement, dirt, blood
and disease: 'The Greenham women have been so policed in the general
literal sense through the increased deployment of personnel at the base
and in a less usual sense through the repeated accounts in the press of
their dirtiness, their insanitary habits, their morally defective
values' (Young 1990 : 62.).
She points out that both their bodies and their moral selves were
attacked. The emphasis on menstruation and handing round used panties
in rape trials can be understood as a similar process of defilement.
The Greenham women were transgressing lines of gender, territoriality,
sexuality and familiarity and had to be policed in the same way that
the suffragettes were policed through force feeding.
Menstruation
When attending rape trials I was puzzled
by the frequent reference to menstruation. I began to understand it as
carrying a dual purpose: to publicly humiliate the complainant (as no
respectable woman would broach such a subject in public, let alone in
the lofty setting of a Crown Court) and to imply that she was a bit off
key, perhaps totally irrational, certainly an unreliable witness, prone
to make false allegations. The frequent reference to menstruation in
rape trials also alludes to women as seducers whose powers are
overwhelming when menstruating.
The menstrual taboo, as Jane Ussher (1991) points out can be traced
back as far as recorded time. In many societies women are seen as
polluting either in general or at particular times. A strong taboo
against intercourse with a menstruating woman has existed since
antiquity. The Old Testament states that god defines a menstruating
woman as unclean for seven days, and anyone who touches her or anything
she has touched or anything touched by someone she has touched is also
unclean. Both Jews and pagans saw menstrual blood as poisonous, and
responsible for child deformities (Ranke-Heinemann 1991:21). In some
communities women have been confined to menstrual huts and menstruating
women have been seen as contaminated and banned from the worship of
God. They are defiled. In the nineteenth century disordered
menstruation, gynaecologists argued, could lead to injury to the
nervous system and thus to mental illness. (Groneman 1994 : 337)
The menstrual taboo is evident in rape trials. The defence counsel's
disgust is often expressed quite blatantly. Witness this excerpt from
the cross examination in a trial heard in August 1993. Even the judge
intervenes in this exchange between the defence counsel (DC) and the
complainant (C) to question its relevance.
DC: Let me put it to you that in fact
you were just coming off, finishing your period at the time of having
sexual intercourse with Mr Jones. Do you agree with that?
C: I was on for another couple of days
DC: Another what?
C: Two days. I was on for another two days after that.
DC: This is the early hours of Wednesday, so do you mean until the Friday, or when?
C: I can't remember. What has my period got to do with that?
DC: Just answer the questions please
C: I don't know.
DC: You see, let me tell you what I'm driving at. I am putting it to
you that you were a willing partner in having sex with Jones.
C: No, I wasn't. It's not right. I wouldn't go near him with a bargepole.
DC: These questions may not be very tasteful, but I have got to put
them to you. In order for him to insert his penis, he has to cope then
with the debris of your period and the tampon, is that right?
Judge: Well, she can't answer what he would or wouldn't find easy.
DC: The point is - I am sorry to have to put it to you - that the channel was obstructed.
Judge: I think you're making a comment
DC: Am I? All right.
This farcical cross examination belies
belief. How is it possible that a complainant is asked whether her
tampon and the 'debris' of her period caused the rapist problems? What
on earth is the justification for barristers indulging in such
questioning?
There are links between the medical preoccupation with women's
menstruation and contemporary social and cultural concerns.
Shuttleworth (1990) draws an analogy between the obstruction and
accumulated waste that dominated Victorian theories of female economy
with the laissez-faire economics elaborated by economists. Like the
body, the economy could only thrive with the free flow and circulation
of commodities, unimpeded by blockage or government interference.
Female thought and passion, like government interference, were seen as
throwing the whole organism into a state of disease.
Forensic and Medical Evidence
If a woman physically resists and is
severely hurt, she is told she should have acted more passively, on the
other hand, if she decides not to resist she is seen as accepting the
violence, clearly this is a no win situation (Kelly 1988 p184)
Medicine and psychiatry are power-knowledges that are also called on to
contribute to discrediting the complainant. As Foucault pointed out
(1990 p 45) 'medical and psychiatric investigations, often had the
apparent objective of saying no to all wayward or unproductive
sexualities'. In this way medical and psychiatric knowledge and
practice are part of the means by which gender divisions in society are
maintained (Doyal 1983 :379). How the reports are obtained is important
since the prosecution ( representing the complainant) can only call for
two psychiatric or medical reports but the defence, on the other hand,
can shop around for doctors who are prepared to write medical reports
which is sympathetic to the defendant's case - and presumably receive a
hefty fee for doing so. It appears that forensic and medical evidence
is a crucial area of dispute between the prosecution and defence
lawyers where conflicting medical opinion is often used to plant seeds
of doubt in the jurors minds about whether or not the woman consented.
Such evidence is based far more on bias and prejudice, and no reference
is ever made to research findings on, for example, the reactions of
rape victims or the tactics commonly used by rapists.
Medicine is deeply involved in the reproduction of a specific view of
the intrinsic character of women and of sexuality. For this reason even
when the complainant has extensive injuries she will not necessarily be
believed on the grounds either that 'she liked a bit of rough' or that
the injuries could be self inflicted. In one of the few cases (heard in
1993) involving a couple who had been previously married, but had
separated as a result of the husband's violence, a wife who had been
hounded by her husband and had two injunctions out against him, failed
to convince the jury that she had been raped in spite of her appalling
injuries. Her nose had been broken and according to medical evidence
she had strangulation marks around her throat. She had reported the
rape and assault immediately and been examined by a doctor within
hours. In court she was faced with a barrage of such questions as 'Did
you rub his penis through his jeans?' and statements such as 'You
helped him put his penis into your vagina and had consensual sexual
intercourse.' 'You weren't frightened'. 'He never put his arm round
your throat' Her denials went unheeded even when she insisted it was
the first day of her period and she would never have had sex during
this time. The defence counsel argued that the defendant did not know
she had a period, to which she replied' He took the tampon out so he
should have known'.' It was love making. You told him you loved him and
you were glad he was back.'. The defendant was acquitted of rape but
was found guilty of gross bodily harm which is are far less serious
offence.
Absence of injuries is taken as evidence of consent rather than due to
a paralysing fear that she might be killed, which leads to a decision
that the best chance of survival is to submit. Sharon was asked why she
did not dig her fingernails into her assailant's penis, or 'put a
construction in front of the door' when her assailant went to the
toilet. Both of these actions are ludicrous for a woman who is in fear
of her life to contemplate.Women certainly have reason to believe the
threats and to fear for their lives. The defendant usually knows their
name and sometimes where they live or work. In one case where the
defendant had broken into a woman's flat, raped and threatened her, he
returned some months later to rape her again. The gravity of the
threats is grounded in real experience. In two cases I encountered, the
rapists had returned to rape the woman again. In court however these
threats are trivialised. Complainants are cross examined in detail
about whether they enjoyed the sexual attack, whether they were drunk
at the time and consented to sex but regretted it later and made false
allegations, whether they were having another relationship on the side
and had to cover up their infidelity to a boyfriend with a false story
and so on. One of the difficulties is that women subjected to threats
often do not suffer visible injuries or the injuries consist of slight
bruising.
Many defendants argue that because the woman did not resist, they did
not know that she did not consent. Some rapists, according to Wyre
& Swift (1990: 6) who set up a treatment programme for convicted
rapists at the Gracewell clinic in Birmingham argue that they kid
themselves that it was not rape and say 'Why didn't she stop me?... she
must have known I didn't want to do it' as if it was her responsibility
to save him from himself. Among rapists Scully (1990) interviewed, 69
per cent agreed with the idea that most men accused of rape were really
innocent and 65 per cent believed women cause their own rapes by the
way they act or clothes they wear.
Doctors play a crucial 'expert' role in analysing women's responses and
sometimes give conflicting and distorting accounts of the 'typical'
bodily signs and symptoms of rape. A common argument is that if really
raped, the complainant should have had vaginal injuries. This does not
fit with the evidence from the medical examination of rape victims
where vaginal injuries are rare for the simple reason that most women
are too terrified to resist. Yet again and again, doctors called by the
defence argue that women who have been raped should have vaginal
injuries. The prosecution are inept at countering such claims and fail
to draw on the common response of both men and women to attack when
threatened with violence or with their lives. Men who are raped or
assaulted behave in exactly the same way. There is a strong argument
that 'expert witnesses should be called to explain to the jury just
what is known about rape and victim's reactions. Since many women who
are raped are in a state of panic due to threats that usually accompany
rape and in reality are often being threatened with death, at some
point they may decide they have a better chance of survival if they
submit, but that this in no way indicates consent.
This tactic was used by the defence to great effect in the case heard
in 1993 in which conflicting medical evidence was fatal to the
complainant's case. The police doctor in giving evidence quite
correctly argued that evidence shows that 50 per cent of rape victims
show no injury to their genital area. Also some skins bruise easily,
and some are more resilient. He also argued quite correctly that black
skin does not show bruising as quickly or as easily as fair skin. He
then described how he had spent two hours with the complainant and
found she was literally frozen with fright. Her pulse and blood
pressure were both 'so high that if the pulse rate went higher there
would be some sort of heart failure'. He described how she was in great
pain and having vaginal spasms which made it hard for him to examine
her.
The defence doctor refuted these arguments by saying that you might
expect a victim of sexual assault to have bruising or redness and
abrasions, especially if the victim was a virgin. She suggested that
the increase in the level of blood pressure and pulse rate could have
been due to many other causes such as smoking cannabis, (the
complainant admitted to having two puffs of a spliff), drinking ( she
had had one drink), running or consensual sexual intercourse. She
argued that the very high blood pressure must have been 'pathological'
and that the forensic doctor's examination had been inadequate. In
further cross examination by the prosecution counsel, the defence
doctor did admit that she was not suggesting that pulse rate and blood
pressure could be faked but that if she had been in any stressful
situation her pulse and blood pressure could have been kept up.
The judge in his summing up dismissed the medical evidence as not
amounting to corroboration. He pointed out that the defence doctor had
had a great deal of experience of examining rape victims but did not
point out the omission in her confident statement about how virgins
would be more likely to be bruised : that the main reason why women do
not show signs of intercourse whether they are virgins or not. is that
women who are too terrified to resist obviously show no physical signs
of struggle or resistance. The judge repeated the defence counsel's
argument that the pulse rate could just as easily be high as a result
the doctor's hands touching her legs as it could of rape. In one case,
several police officers, including a police surgeon, gave evidence that
the woman was shaking with fear and distress, tears were streaming down
her face, she wanted to wash herself frequently and was afraid
afterwards to go out alone. They all agreed she was in acute distress
and showing every sign that she was suffering from what has been
identified as the rape trauma syndrome. Yet the prosecution counsel
failed even to mention her distress in his summing up. In this case I
abandoned my role as participant observer and followed him out of the
court and asked him why he had not mentioned her distress. He responded
that it was absurd to regard the woman's state as corroborative and
dismissed the judge's view as irrelevant. This exemplifies the lack of
sympathy between the prosecution counsel and the complainant and the
way it can prejudice her case. Forensic evidence is relevant only in
establishing that intercourse took place, not whether it took place
with or without consent. There is often disagreement over what
constitutes corroboration. In the UK the woman's distress is not
regarded as corroborative, but in Scotland it is (See Brown et al
1992).
The justification of excluding the
effects of rape on the complainant is in my view extremely weak. Judge
Smedley on 1 September 1993 in a case heard at the Old Bailey comments
on why evidence of the complainant's distress should not be regarded as
relevant at all: 'A word of warning. If the account the complainant is
giving was completely fabricated you may think she is clever, then
clever enough to act out distress'. Women's distress is excluded mainly
on the grounds that she is the source of the distress and corroboration
has to be evidence from a different source. Yet, as we have seen,
judges do not agree as to its relevance which is one reason why
training judges is so necessary.
One of the main findings of research into the reactions to rape
(Holmstrom & Burgess 1978, Roberts 1989, Foley in Lupton C &
Gillespie, T 1994:44) is that although there are common patterns, there
is no typical reaction. Some women express anxiety immediately, for
others the reaction may be delayed, but every bit as traumatic. Nor do
men all react to traumas in a similar fashion, but this is not held
against them in the same way. However, a common tactic used by the
defence to support the idea that the woman is making a false allegation
is to suggest that her reactions are not typical of a rape victim. In
one of the trials I monitored in 1993, evidence that the complainant
had not broken down was used to imply that she had not been raped. In
her cross examination the defence counsel argued that according to the
doctor the complainant was 'not at all distressed'. She cried for about
twenty seconds while talking, but then smiled and carried on talking?
Here is her cross examination by the defence counsel:
Defence Counsel: What signs, in the light of his Honour's questions, were you showing of distress to this doctor?
Complainant: Well, I did cry and ...
DC: Anything else? I mean, is this doctor right or wrong or just mistaken?
C: Well maybe, I wasn't showing signs of distress at some times, but I was feeling it.
DC: I see. So this doctor - it was a woman doctor failed to see that
underneath it you were, in fact, distressed and, as you said, you were
not at all distressed, making the point you cried for about 20 seconds
but then smiled and carried on talking. What is the picture that we
should have?
C: I was distressed, but she was doing her best to try and, you know, be nice and cheer me
up
The complainant little realises that the doctor's evidence is used by
the defence counsel to imply that since she was not distressed during
the examination, she could not have been raped. What is apparent here is
the way the complainant's description of her state of mind is
disregarded and the doctor's view prevails.
The effect of drugs and alcohol on 'spoiling' reputation
Of all the factors used to discredit the
complainant, the most common was the consumption of alcohol and drugs.
Yet the defendant even if blind drunk, was rarely questioned about his
use of alcohol. In one trial, on the other hand, it was alleged the
complainant was drunk even though she was completely tee total. The use
of alcohol and drugs has quite different meanings for men and women.
For men heavy drinking serves to enhance their male status, it
signifies 'real manhood'. For women on the other hand alcohol carries
the taint of immorality and promiscuity. Elizabeth Ettorre, (1992:38) a
British sociologist who studied attitudes to women and alcohol,
suggests that 'a woman who drinks does not need to be a prostitute to
have a promiscuous image. She is promiscuous by the very fact that she
is a drinker'.
Drinking and drug use was used to discredit the complainant in two
ways. The first was to suggest that their consumption would lower the
woman's inhibitions and thus she would have been likely to consent to
something which she would regret later. The second was to suggest that
a woman under the influence of alcohol would be more likely to act
irrationally or vindictively and make a false complaint. Drink and
drugs are seen as particularly dangerous in unleashing a woman's
sexuality, which once unleashed is irresistible to men. A man is not
held responsible for his sexual desires; all the onus is on the woman
to control his sexuality. According to Stanley Brandes's (1981) study
of sexual relations in an Andalusian town, women are portrayed as
dangerous and potent while men are seen as suffering the consequences
of female whims and passions. Women are viewed as seductresses and
whores possessed of insatiable lustful appetites. When women wielded
their power, men cannot resist temptation and are forced to relinquish
control over their passions.
Doctors frequently disagree about the effects of alcohol. In one trial
I attended, when asked what the effect of drinking the equivalent of
four to five pints would be and the likelihood of it 'reducing
inhibition', the woman doctor of 36 years experience replied ' In some
people it can. It depends on the person. Some people can become quite
stubborn or stroppy'. The defence can call their own doctor to refute
the evidence of the prosecution's doctor. The defence doctor will then
reiterate that it lowers inhibitions.
Evidence that the complainant has taken drugs, even in the past, is
fatal to obtaining a conviction. Notions of 'purity' and 'pollution'
are intrinsic to sexuality and drug abuse. Mary Douglas (1966:113) a
British anthropologist, defines pollution as 'a type of danger which is
unlikely to occur except where the lines of structure, cosmic or
social, are clearly defined' . With women the social boundaries are
more clearly defined in the sense that there are clear lines between
what is and is not legitimate or respectable behaviour for women
compared to men. The controls over their social behaviour are more
stringent. Transgressing such boundaries (poisoning themselves, being
out of control and so on) turns female heroin users into polluted
women: As Ettotte (1992: 76) argues 'as a polluted woman with a spoiled
identity the woman heroin user is low on the hierarchy of women
generally and women substance users in particular. Being viewed as
'deviant' and a 'whore' she is engaged in using a drug which is seen as
low (bad, evil) on the hierarchy of drugs. The lower the drug the
closer the connection to the whore image'.
In a case involving two compalinants who had a drug history but
according to medical evidence had not touched drugs for over 2 years,
the defence counsel, drawing on the stereotype of the female heroin
addict, summed up with sickening irony:
It's easy to feel enormous sympathy
for the two complainants because of the wretched way they live their
lives. One might just find oneself going sympathetically along with
what they say but be careful. You're not dealing with a typical
witness. You must not look at every witness in the same way. But of
course you are considering the credibility of their evidence.
It's impossible for a heroin addict
to get off the drug. If it is possible for someone to be weaned off it
takes a very long time. Money is the one thing that people in her
situation want. Drug addicts will fail to behave in a way normal people
would.
The conclusion is clear. She must be
supporting her alleged habit by prostitution. He ignores the doctor's
evidence that the complainant was clean and not under the influence of
drugs or drink but plays on the prejudices of the jurors. He then
alleges the complainant is a spiteful person and is 'the sort of person
who with five pints of Tennants in her might go to a police station and
make up a story'.
Being under medication is sometimes used as an argument that the woman
consented. On one occasion the complainant's medication on release from
mental hospital was held against her. This was used to suggest that she
had sex willingly with a complete stranger in a lift shaft of the
underground in the middle of the night and then made a false
allegation. In this case the defendant was also HIV positive and to add
insult to injury the complainant had not been informed. the defendant
was set free after a retrial where the jury was again unable to reach a
verdict.
Conclusion
Insufficient attention has been paid to
the function of the trial process in policing women's sexuality.
Several studies have recently examined how power and discipline
produces 'docile bodies', in particular, Foucault pointed to the
emergence of a new disciplinary power in the modern era directed
against the body. Forms of violence against women, from rape and
domestic violence to sexual harassment and sexual abuse are perhaps the
most oppressive by-products of Foucault's 'technologies of sex'. The
disciplinary techniques, such as power reflected in the use of abuse,
both verbal (such as slag and slut) and physical, have a direct effect
on regulating how women and girls behave, how she feels about her body,
her desires and her self confidence and how constricted her life can
become. Through court procedures, women who do not behave in a
stereotypical 'feminine' way, or women who speak out about male
violence, render themselves open to such disciplinary techniques which
are laid bare in the court drama.
According to Adrian Howe, an Australian criminologist (1994: 201)
the reason why women so rarely commit criminal offences may well be due
to the greater powers of surveillance and discipline they are subjected
to both in childhood, adolescence and adulthood. She calls on the
reconceptualising of penality to include a wider range of sanctions and
controls and 'refuse the discursive boundaries which separate policing
from punishment'. The women who are brave enough to speak out about
such disciplinary powers should not be named 'victims' or even
survivors but rather rebels who are unprepared to remain silent. By
reporting assaults to the police, they become targets of disciplinary
punishment themselves for such transgression. bel hooks, an American
feminist makes a similar point when she argues ' Within patriarchal
society, women who are victimized by male violence have had to pay a
price for breaking the silence and naming the problem. They have had to
be seen as fallen women, who have failed in their 'feminine' role to
sensitise and civilise the beast in man (hooks 1989: 89). This is one
of the pernicious aspects of Katie Roiphe's (1993) book 'The Morning
After'. is that she is joining in the ostracising of the victims of
rape by arguing that they have a 'victim mentality'.
Foucault (1980: 96-7) called for an examination of how power and
discipline produces docile bodies 'at the extreme point of their
exercise, and to explore punishment and the power to punish at the
local level, especially how they are embodied in 'local, regional,
material institutions'. The cross examination of rape complainants is
an example of just such a practice. The latent purpose of trials can be
seen to strengthen the control and disciplinary practices over young
women who are considered to be 'leading men on', acting independently
by being single parents or complaining of enforced sex, part of the
normal oppressive system of subordinated sexual relations. The trial
subtly turns what is purported to be a judicial examination into a
condemnation of the complainant, her punishment. Press reports often
then add to this character assassination as shown in the Guardian
report of October 26, 1993 of the Kydd case where 'Man Was Acquitted Of
Raping 'Slut Of The Year' was the heading to the report of the trial.
The task of the jury in rape trials is to weigh up 'one person's word
against another' in order to decide whether the prosecution has proved
that the defendant is guilty 'beyond any reasonable doubt'. By
constantly questioning women about their most intimate bodily processes
regarding, for example, lubrication and menstruation, their 'moral'
character' is undermined. The association with 'women' and 'the body'
is aimed at dissociating women from the faculty of 'reason'. The
implication that women's bodies are 'out of control', particularly when
under the influence of drugs or alcohol, leads to the assumption that a
women's rationality is in doubt, and her word cannot be relied on. The
man's body is rarely a matter of debate even when under the influence
of far greater quantities of drugs. His rationality and credibility are
taken for granted. It is time this double standard was challenged.
Rape trials can be seen as a spectacle of torture, by which rather than
protecting women, the trial can be seen as a public mechanism for the
control of female sexuality. The defilement of the complainant through
language puts her publicly on trial. The purpose of the cross
examination of the complainant appears to be to uncover the 'real'
culprit of the trial, the whore, the insatiable female harridan,
vengeful and often in disguise: Behind the young beautiful girl lurks
the archetypal Eve who ensnares male rationality and drags men down.
Such myths protect men from allegations and thereby from responsibility
for their own violence. It is a consolidation of heterosexual
privilege; the privilege of men to decide when a woman says 'yes'; the
right of men to have sex when, how and when they want; the right of men
to oppress women.
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