Stephen Schulhofer (1998) Unwanted Sex: The Culture of Intimidation and the
Failure of Law, Harvard University Press, pp 318.
Carolyn Hoyle (1998) Negotiating Domestic Violence: Police, Criminal Justice and
Victims, Oxford University Press, pp 248.
One of the central tensions in criminal justice is that between the rule of
law and the needs of the victim of crime. On the one hand, it is argued that
criminal justice agencies pay scant attention to what the victim desires as the
outcome of legal process. The state imposes its own agenda which may have little
to do with the outcome desired by the victim or a just treatment of the
offender. The periodic blossoming of dispute resolution schemes and other
varieties of 'restorative justice' can be read as partial vindication of this
theme. which amounts to the dissolving of the distinction between criminal
justice and civil litigation.
The defenders of the centrality of the state argue, by contrast, that it is
precisely the power inequalities between offenders and victims that necessitates
a third party as the guarantor of justice. The demands of the victim may be
simply an adaption to the power of the offender. The victim may wish for only a
minimal or even for no action to be taken less from a feeling that such an
outcome would be just, than to minimise the likelihood of future reprisals from
the offender. Only the state, which is more powerful than any offender, has the
capacity to effectively protect the victim and to secure a just outcome. Here
the criticism is usually that the state does not do enough to secure justice and
indeed may use the fears of the victim as an illegitimate rationalisation for
its own lack of action.
There is no better arena in which to see these tensions being played out than
in the ongoing debate about the criminal justice system and sexual violence. The
two books under review start out from opposite standpoints in the debate:
Schulhofer from the failure of the law to protect women from sexual violence and
Hoyle from the supposed sensitivity of the police to the 'preferences' of
victims to drop complaints of domestic violence.
Schulhofer's starting point is the failure of the law to combat exploitation,
sexual harassment and rape. He leaves no stone unturned in addressing the
question of how to create a law which will take seriously sexual autonomy - the
right to choose freely whether and when to be sexually intimate with another
person. He argues that unlike laws that provide for comprehensive protection for
property rights, labour and other important interests, laws on sexual autonomy
have failed - from the excessive degree of force needed for an action to be
defined as rape, to the gray areas in which coercion and exploitation can be
used to elicit a false legally valid 'consent' between, for example
professionals, such as doctors, lecturers, lawyers and even therapists and their
clients/students.
Schulhofer calls for a radical reconstruction of such laws. He does not shirk
difficult questions - he draws on research which found that a third of women in
the US do not always mean 'no' when they say 'no'. He concurs, however, with
radical feminists who have argued that there is a need to understand what 'no'
means in the context of actually existing power relations. He suggests, for
example, that in a liaison between a supervisor and a subordinate, teacher and
student, or doctor and patient, the less powerful participant may consent out of
fear rather than genuine desire. Such liaisons, he argues, when initiated by the
more powerful should be prohibited, and he puts forward ways in which this could
be achieved.
The most controversial question Shulhofer addresses concerns what evidence
should be required to prove 'consent'. He argues the emphasis should shift from
physical evidence to evidence of autonomous choice. The significance of
equivocal behaviour would therefore be reversed as such behaviour would
reinforce prosecution claims that consent was absent. Thus silence, ambiguous
behaviour and absence of clearly expressed unwillingness should be treated as
evidence that affirmative consent was absent. Rejecting the more extreme
proposal that nothing less than verbal permission and explicit 'yes' should
count as consent on the grounds that it would destroy spontaneity, he supports
the view that the legal standard must move away from proof of resistance to
affirmative indications that the complainant chose to participate. This is a far
cry from the passivity and silence which most courts now accept as consent, and
would pose problems in the adversarial system where the defendant is innocent
until proved guilty, and should not have to prove anything.
This is an insightful and scholarly book written in an accessible style
rarely encountered in law. Even rarer is Schulhofer's willingness to debate
divergent feminist views in a balanced and enlightened way.
Hoyle's book, on the other hand, is a defence of the status quo against
feminist criticism. It is a meticulous empirical study of the police response to
domestic violence based both on interviews and participant observation. The aim
is to discover what factors shaped the Thames Valley police and Crown
Prosecution Service response to domestic violence in the light of the Home
Office circular introduced in 1990 which recommended arrest in such cases, but
failed to make much impact. She investigated how officers attending domestic
disputes defined the situation and negotiated solutions and why police failed to
enforce the circular by arresting the assailant in the event of an assault.
In line with previous such studies, she found that police attributed this
mainly to the frequency with which victims withdrew their statements, and to
police and prosecutors' perceptions of the effectiveness and appropriateness of
the criminal justice system. Unlike Schulhofer's suspicion of the meaning of
women's 'consent' in sexual encounters of unequal power, Hoyle appears to take
women's 'preferences' about how to deal with violent partners largely at face
value and argues that the police and criminal justice system are mainly
fulfilling the wishes of women. She considers that previous studies have
underestimated the role of victims in these decisions and have assumed that the
police and prosecutors rarely wish to prosecute such cases.
From the beginning Hoyle distances herself from feminist criminologists
arguing that they have not taken sufficiently into account the reluctance of
women to pursue cases to prosecution and have blamed police culture rather than
what she regards as 'police sensitivity to women's preferences'.
Hoyle's book contains useful material but her analysis is limited and
disappointing. She fails to take into consideration the distinction between
arrest and prosecution and to understand that mandatory arrest need not lead to
greater criminalisation. She overlooks pressures on witnesses to drop cases:
that, for example, the Crown Prosecution Service does nothing to encourage
victim witnesses and often starts from the presumption that women will withdraw
which then becomes a self fulfilling prophesy. .
Most importantly she fails to address the core of the problem which is that
55,000 women escaped to refuges in 1997 and two women a week are killed by their
husbands/partners. This means that at present the only effective recourse open
to many women is to leave their home, friends and neighbourhood and go into
hiding with their children to escape from violent partners. Although Hoyle
acknowledges significant variations in police practices and that the majority of
women in her study had stayed because their partners had threatened them with
violence and/or even death, she fails to appreciate that interventionist
policing is crucial if women are to be protected.
One way of reconciling the two approaches discussed in these two books is to
develop community based programmes for dealing with disputes. In the Duluth
domestic violence community intervention project, for example, introduced in the
American states of Minnesota and Wisconsin, mandatory arrest is in most cases
followed by diversion onto violence prevention programmes. Attendance at such
programmes is backed up by the criminal jsutice system. This reconciles the
interests and preferences of women, giving them some protection from violence
without increasing the power of the state and unnecessary criminalisation. Such
programmes are backed up by special courts to deal with rape, domestic and
sexual violence, and training for judges and prosecutors.
|