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Who is the ‘Ideal Rape Victim’? Challenges to Rape Prosecutions in the UK Justice System

9482 words (38 pages) Essay in Law

18/05/20 Law Reference this

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The criminal justice system of England and Wales has long been treated as one of the most well organised and effective systems in comparison to those of other jurisdictions. It is characterised by an adversarial system where each party competes before a judge and a jury. However, with the passing of time it became evident that the criminal justice procedures do not serve justice appropriately and sufficiently to the victims of rape cases and subsequently does not confront rape cases as fairly and in compliance with the law as with other criminal cases such as homicide and theft.

It has been highlighted by many scholars and feminists in a negative intonation that rape is the ‘unlawful carnal knowledge of a woman’ by a violent man against her will and authorisation[1]. It is claimed to be ‘one of the easiest crimes to allege and one of the most difficult to prove’[2], even when all the necessary characteristics of a rape case scenario and participant’s requirements are apparent to satisfy a violent sexual and not consensual crime.

Upon many researches and public debates on the operation of the criminal justice system of England and Wales on rape trials it has been concluded, that many stereotypes and outdated perceptions on women, their role and duty in the society, in connection with the picture of an ‘ideal’ crime of rape possessed by legal professionals and various critical pawns of the criminal justice procedures, alter the fair and just outcome of a fair rape trial. Prevalent stereotypes within the operation of the criminal justice system and the wider society has been described as rape myths. As Bohner states, rape myths are ‘prescriptive or descriptive beliefs about rape that serve to deny, downplay or justify sexual violence’[3]. It has been highlighted by many researches that rape myths are commonly incorporated within all three main stages of the criminal proceedings, which include the police recording of rape, the Crown Prosecution Service decision to continue with a prosecution or acquit a case and the trial and its prosecution. More specifically, it has been recorded that rape myth’s prevalence in the United Kingdom ranges from 18.3 %[4]. Even though the average percentage seems low and insignificant, the destruction it causes to the victims and any further future reporting of sexual assault crimes is enormous.

This thesis, through various research, has identified that rape myths and many other patriarchal conservative conceptions, are forcibly embodied within the justice system, which creates a justice gap resulting to the mistreatment of the sex victims. The inclusion of those sexist stereotypes within the multiple agents of justice, has created a high attrition rate which justifies the higher rates of reporting rape incidents to the police and the low or even steady conviction rates[5]. The ‘Her Majesty’s Inspectorate of Constabulary and Fire Rescue Services’ provides supportive evidence of such a finding by stating that in 2014 there was a visible under reporting of sexual assault cases merely of 23% in comparison to 2018 where an increase has been evident[6]. More specifically in 2017 there have been 51,988 rape cases reported to the police compared to December 2018 where a dramatic increase has been made towards 57,600 records of rape cases[7], which increase expanded in March 2019 by 9% (58,657) [8]. Due to the concern in regards to the low conviction rates in England and Wales, the Crown Prosecution Service was requested to provide statistics between 2017 and 2018, where it was proved that there was a climactic decrease of 23% according to the annual ‘Violence Against Women and Girls Report’[9].

It can be established that rape myths contribute significantly to create and enhance the imbalance conspicuous within the English system, since they generate sexist opinions towards unrealistic images of rape victims or even rape incidents. The rape myths may vary from their appearance on the first stage of the criminal justice procedure, where police officers scrutinise whether the case in question is a favourable typical ‘stranger rape’ or an unfavourable ‘acquaintance rape’, to the trial stage where the victim experiences a versatile attack by many legal professionals and operators on her or his character, appearance and past sexual history choices and experiences. Thus, it is acknowledged that the criminal justice system is biased against victims of rape by taking victim- blame approaches and questions, which intensifies the traumatic and unpleasant experience of a vulnerable rape victim.

In this essay, I present the multiple issues concerned the reported inadequacies of the criminal justice system and the various participants’ to adequately protect the rape victims from any mistreatment, disrespect and violation of the main human rights, by focusing on the treatment of the victim by the police officers , judges and juries, which partially explains the low conviction rates. In particular, I will commence my thesis by establishing the legal reforms and their attempts to place the victims on the heart of the system, for the proper critic and evaluation of the British criminal justice system. Furthermore, the first chapter will assess the frame of this analysis which is the portray of an ‘ideal victim’ and its subsequent expectations such as the ‘real rape’ scenario. This chapter will focus on explaining the theory and theme behind the ‘ideal victim’ and how such an approach has led to the creation of rape myths which negatively affect the progress of reported rape cases. The second chapter is based on the in-depth explanation of the influential nature of rape myths and how they are being applied on rape victims. In more detail, it will primarily focus on proving that it is the victim who is being severely examined rather than the perpetrator of the offence, which leads to the victim’s character and conduct prior and post rape being inspected and criticised. The last chapter discusses the attrition problem and the approaches taken from the investigation until the prosecution and possible conviction of a rape case, by emphasising the conventional thoughts and treatment chosen by different operators of the criminal proceedings, such as the police officers, the judges and the jury. This thesis will conclude that the expectation of an ideal victim and the post and prior of the rape incident victim’s behaviour in combination with multiple factors, such as the relationship between the victim and the perpetrator has placed barriers on the provision of justice to rape victims.

The Driving Force towards Rape Law Reform

The realisation of the existence of a justice gap on sexual offences’ investigation and trials led to the creation of legal reforms, which emerged since 1970’s. Within these law alterations the criminal justice system made an effort to bring the victim in the heart of the system by creating specific provisions which focused primarily on the protection and the support towards the victims of rape cases. During the trial the defence attorney in order to support his case will normally try to impinge the victim’s credibility as the sole witness and morality, in cases where the issue is consent by targeting her past sexual relationships, her life choices, character and appearance. Due to many hurdles being faced by the victim within the stages of the criminal procedures, such as the deposition of evidence in court before the judge and the defendant, which leads to a ‘second rape’[10], the provision of special measures was introduced in the Youth and Criminal Justice Evidence Act 1999 to soften the chaotic and agonising procedure of the victim. This Act states that the special measures, such as the removal of gowns and wigs[11], the provision of evidence via live link[12], the assistance of an intermediary[13], the pre-trial recorded cross examination evidence[14], the visual recorded interview as evidence in chief[15], evidence given in private[16] and screens for a restricted vision with the defendant [17] are only available for the ‘young, disabled and vulnerable witnesses’[18]. More specifically, child witnesses, individuals with mental disorder, mental impairment, physical disorder[19] and fear or distress of testifying will automatically be eligible for the use of such special measures[20]. Thus, it can be predicted that since a rape victim is in such a vulnerable position mentally and physically to testify or even relive a similar experience to rape by recalling every detail, he or she is automatically entitled to use the special measures. However, under the Coroners and Justice Act 2009[21], the Youth Justice and Criminal Evidence Act 1997 requires that the adult complainant of sexual offences shall make an application for the immediate qualification of a visual recorded statement used as evidence in chief on trial[22], after which it is in the discretion of the judge to decide whether or not to provide her with the specific special measure by examining whether or not it would maximise the quality of her testimony[23] and is in the interests of justice[24].

 Moreover, in order to properly convict an alleged rapist, a more targeted approach had to be taken in regards to the definition of rape. Under the Sexual Offences Act 1956, rape was defined simply as the unlawful sexual intercourse with a woman’ in which the requirement ‘without her consent’ was later added in 1976. Due to the inconsistences and gaps within this definition, the Sexual Offences Act 2003 stated that rape is the non-consensual penile, vaginal, anal and oral penetration of another person when the defendant does not reasonably believe that consent is provided by the complainant[25]. Thus, this legal interpretation of consent primarily focuses on the freedom and capacity of the complainant to give her consent or refusal towards the sexual intercourse[26] and the defendant’s wrongful and unreasonable belief of the provision of the complainant’s consent.

 Under the Sexual Offences Act 2003, there are two stages to prove that the actus reus of the rape, meaning the act which constitutes the wrongful and unlawful nature of the sexual intercourse, first it is the penile penetration and secondly the lack of consent, which burden is placed on the prosecution. This is the stage within the criminal justice procedures where the attention on the defendant’s prosecution and possible consequent conviction shifts towards the victim’s credibility and morality as a witness. The defence attorney to strengthen his case attacks the victim by questioning her and using as evidence her sexual life, experiences and attempts to expose her possible bad character or even paint the victim as an immoral individual.

 Last but not least, one of the most crucial alterations within the regulations of sexual offences, was the restriction of the admission of the victim’s past sexual history evidence[27]. This reform was emerged due to the constant use and abuse of the victim’s previous sexual experiences. Under this section, no such evidence shall be used as evidence in court without the judge’s approval, who shall allow the admission of such evidence solely if he concludes that it will have an adverse outcome on the defendant’s fair trial.

 Despite the establishment of rape shield laws and the effort of the criminal justice system to balance the rights of both parties, such as the protection of the victims unnecessary invasion of privacy[28] and the defendant’s right to a fair trial[29], it is universally accepted that through the acceptance and practice of specific sexist stereotypes solely applicable to rape cases, the victim is placed on the unfavourable position of being on the ‘dock’ instead of the defendant. The criminal justice professionals take a more victim blame approach by using extralegal factors such as the victim’s appearance and behaviour prior and post rape to decide whether or not the defendant is guilty.

CHAPTER A.

 The Genesis of the ‘Real Rape Victim’ Image of the Criminal Justice System.

 Before I commence analysing the different misogynistic approaches or even misconceptions with which criminal justice agents approach the victims, it seems crucial to commence this study by introducing and defining the source of such a highly criticised practice within the criminal justice system of England and Wales.

 A theoretical framework for analysing and examining the patriarchal and sexist approach followed by a significant number of criminal justice towards rape victims, is the “ideal victim” concept. The funding father of this concept is Nils Christie, a Norwegian sociologist and criminologist, who did not primarily focus on the rape victims, but established a general notion of a victim towards which the criminal justice system demonstrates an appropriate level of sympathy.

What is perceived as ‘idealness’?

 Prior to explaining this notion, it seems vital to describe the perception of idealness, which has been the root of the problematic treatment of the victim. Idealness, shall be construed as excessive expectations that individuals need to portray and fulfil in order to be accepted by the society and subsequently the justice system. As Simon Green adds ‘idealness is…a presentation of the personal qualities and circumstances individuals find… themselves in’.[30] Under such a well-defined interpretation, a key finding is extracted underlining that circumstances such as time and place of a criminal incident plays a fundamental role in accepting and ascribing the ‘ideal victim’ title. As it will be demonstrated in the following chapters of this thesis, such a finding influences the managements of the rape cases by the police, the judges and the jury. Furthermore, the word ‘victim’ or ‘victimhood’ is a very elusive term constantly used within the criminal justice system and procedures from the moment an individual files a complaint. When people are asked their opinion on who is usually characterised as a victim, the most common response is ‘women, ofcourse’.[31] Under societal traditional sex role stereotypes towards females, women are treated as powerless, dependent and passive, while males are presented and treated as independent and strong.[32] But if a woman demonstrates adverse characteristics and qualities other than those expected of her, she will not acquire the title of the victim, let alone ‘ideal victim’, neither by the society nor by the criminal justice agents. Thus, as Gloria J. Browne Marshall states idealness ‘fits into socio-economic, demographic, regional characteristics’.[33]

 In his research Nils Christie, states that an ‘ideal victim’ is an individual or a specific category of person who when faced with an unfortunate criminal event is given the deserving title of a victim.[34] This definition points out to the existence of a group of victims to whom the ‘ideal victim’ status is not ascribed, which unfortunately represents the majority of rape victims. Specifically, he describes the victim, as a weak female character, either a child or an elderly woman, innocent and blameless, while describing the offender as a strong male ‘unknown to the victim’.[35] Moreover, except for the definition of the general ‘ideal victim’, in my opinion it is crucial to correctly scrutinise it’s effect upon the rape victims and to focus specifically on the classification and characterisation of the ‘ideal rape victim’, which the British justice system searches and anticipates within every rape allegation.

Who is the ‘Ideal Rape Victim’?

 An ideal rape victim is portrayed as a young girl or a matured woman, a virgin or a married woman with no more than one sexual experience and partner respectively, with no desire for multiple sexual partners, who does not dress provocatively and has impeccable moral.[36] These attributes that a victim should encompass are immediately linked with the ‘real rape’ stereotypes. These characteristics administer illogical and unreal expectations from the victim, such as her behaviour prior and after the alleged rape attack. Additionally, the unambiguous “ideal” rape victim is perceived as an individual who experiences abuse and sexual domination by a stranger, who acts reasonably and responsibly to avoid such a risk.[37] As Stevenson acknowledges, the law regulating rape cases reflects ‘the stereotypical ideal of female vulnerability and the patriarchal concept of woman as property’[38]. Thus, in the eyes of the law and its agents women as seen as weak, dependent and obeying creatures subject to male dominance.[39]The real rape stereotype equates it with the case of a stranger rape, where the attack is a ‘premeditated act by a stranger on a female victim perpetrated at night involving violence and injuries upon the defenceless target’.[40] However, as it will be argued in the next chapter of this study, such stranger rapes represent the minority of rapes or sexual assault cases in general, with the majority of the cases being ‘acquaintance’ or ‘date’ rape cases. The image of a beaten or even injured woman as evidence of violence within a rape case and reflection of the ‘ideal victim’, renders the prosecution and conviction of rape cases difficult to achieve especially in cases on acquaintance rape. The power that such a myth holds today is apparent within the operation of the criminal justice system by the low conviction rates of the reported rape claims – for instance, recent data show that only 3% of the perpetrators have gotten convicted in London.[41] The prevalence of the myth of a ‘real rape’ and a ‘real victim’ stereotype within the criminal justice system not only allows the expectation of an ‘ideal victim’ but it also enhances it. The ideal rape victim, in order to be considered a victim and be treated respectfully, shall provide evidence of ‘resistance, violence, injuries’ and her post rape attitude shall comply with that of a scared, shocked and teary victim not with an emotionless one.[42]

 The creation of such a framework operates towards the undermining of the rape victims who do not conform with the expectations of the criminal justice system and praises only the ‘good’ victims, the credible and reliable ones[43]. Thus, there are two types of women under the ‘ideal victim’ concept, the “‘good victim’ who obeys and satisfies the expectations and stereotypes of a powerless and blameless female figure deserving of legal assistance and justice and the ‘bad victim’, who due to her behaviour and morals is considered as responsible for the attack”. [44]

 Through the adoption of this concept within the criminal justice system, a vail of blame is spread to the rape victims, with elements of misogynistic and sexist attitudes. Such prejudicial victim-blaming demeanour, has been developed through the blinded belief in ‘a just world, based on the ‘just world theory’ which was established by Lerner in 1980 as a foundation for the society to believe that good things happen to good people and bad things to bad individuals’.[45] One of the key theories of punishment in criminal law, is the ‘just deserts’ notion which states that a defendant deserves societal disapproval and consequently punishment,[46] only where the alleged offender had the opportunity and ability to freely choose to act in such a way as an independent moral agent.[47] Thus, since the ideal of a just world is inherent within the criminal justice system and the society in general, such a belief mirrors the decision-making stages of a rape case, where defence attorneys, judges and the jury tend to blame the rape victims if it seems as they provoked the rape incident and got what they deserved[48]. The practice of such a theory observed in regard to rape cases, is that observers and decision makers such as police officers, jurors and judges impose such victim-blaming treatment towards the complainant in a rape case, by attacking their character and life, as a shield to reassure themselves that they do not deserve such a misfortune due to their moral actions[49].

 As it has been examined so far, the concept on the ‘ideal victim’ has been based and researched solely in connection to rape or sexual assault cases. Due to the existence of such a focused research on the effect of the notion of the ‘ideal victim’ and it’s attachment to rape victims, there has been a failure to properly investigate it’s consequence to other crimes, which seems as an important task in order to conclude whether or not there are unrealistic expectations merely regarding rape victims. Thus, the main question that needs to be imposed is, how does the ‘ideal victim’ notion and its subsequent producing misconceptions and victim-blaming conduct influences and relate to other crimes? Originally, Nils Christie’s image of the ‘ideal victim’ is represented as an old lady being a victim of theft by a male figure stronger than her, which subsequently got extended towards the expectations of rape victims. Thus, it can be accepted that the ‘ideal victim’ pattern also applies in cases of theft or robbery. However, it seems to me that more negative attention, such as attribution of blame and responsibility is concentrated on the victim of a rape case than any other crimes, because theft victims for instance might not be attacked by legal professionals on their relationship with the thief or questioned to justify their non-resistance during the attack, as it usually occurs with rape victims. Rape incidents can be contrasted easily with robbery cases, since both rape and robbery in the eyes of the law are more likely to occur at night, in an isolated place by a stranger towards a helpless victim.[50] It has been proven that women’s behaviour and characteristics tend to be subjected to high rates of scrutiny in rape cases rather than in other crimes such as robbery, a finding supported by Bieneck and Krahe in 2011.[51] From my perspective, it seems that such a finding can be justified on the basis that rape is merely a sexualised crime which means that any sexist attitudes towards women will automatically and effortlessly attack the female gender. However, one study established that theft or robbery victims do attract even more blame than rape victims,[52] even though nowadays it has been affirmed and acknowledged by certain feminists and law reform agents that rape victims do experiences the highest levels of blame attribution.[53]

 Many rape victims, as it will be illustrated further in this thesis, are being attacked on the basis of their past sexual history and relationship with the defendant as well as their appearance. However, these sort of sexist attitudes towards the victim and the lenient treatment of the defendant rarely occur in the case of victims of other crimes. For instance, an individual accused of robbery would not be acquitted based on the pure reason that prior to the offence the victim willingly provided the alleged offender with her property,[54] whereas in rape cases if the victim has a previous sexual relationship with the alleged defendant her testimony and evidence will most likely be held negated and the offender will probably be acquitted.

 Lastly, even though sometimes blame, either directly or indirectly, might be attributed to victims of all crimes, rape victims elicit a more hostile treatment. Rape victims and rape scenarios, which do not conform with the ideal victim and the real rape stereotype, are being judged in accordance to the victim’s attributes based on her moral and causal responsibility. Causal responsibility is primarily attached to the victim’s characteristics, such as her physical attractiveness, her choice of clothes and makeup whereas moral responsibility is linked with her credibility as a witness.[55]

 All these qualities and characteristics that the criminal justice system expects from the rape victim to present and acquire, rates the conviction unachievable which can create the undesirability to report to the police. When rape victims report to the police their sexual assault claim, the police will probably not record the incident as a crime for prosecution if the victims do not portray the specific ideal characteristics previously mentioned, which leads the victims who did not resist during rape, who did not report immediately and who knew the defendant not to report their case. Rape cases are not being decided upon the scrutiny and close inspection of evidence, as in other crimes such as murder, but the decision towards prosecution is based on extra-legal factors. These extra-legal factors, which were born due to the dominant nature of the old stereotypes in the criminal justice system that surrounds women and their role within the society, include the victim’s relationship with the alleged offender, her clothing, her past sexual history with the defendant and surprisingly third parties and generally every aspect of her life which can be present the victim as unreliable.

CHAPTER B.

Rape Victim’s Characteristics as Obstacles towards Achieving Justice

 The invasive ‘ideal victim’ concept that has attached itself upon the rape victims leads the police officers, judges and juries to constantly compare the ideal and non-ideal victim of rape, which evidences the ‘justice gap’ within the criminal justice system in England and Wales. The main goal of the criminal justice system is to balance the defendant’s rights to a fair trial, which includes the right to defend his case by sometimes attacking the victim’s credibility, without overlapping and overpowering the victim’s right to a fair trial. However, especially in rape cases due to the belief that rape complaints occur as a revenge and the protection against unlawful and unjust conviction of an innocent man, the criminal justice system has shifted it’s focus on the protection of the defendant. Regardless of many rape shield laws established for the protection of the victims, the rape complainants are constantly put in a disadvantaged position during many stages of the prosecution of a rape case, which leads to the creating of the ‘justice chasm’.

 The misogynistic approach towards female rape victims and the unrealistic stereotypical expectations that the criminal justice agents have, are produced by the attitude known as ‘benevolent sexism’.[56] Generally, sexism is a hostile stance against women in general, whereas ‘benevolent’ sexism is a viewpoint which includes stereotypical believes towards women in restricted roles in comparison to men.[57] A complimentary note to this stance is provided by hostile sexism which serves negative and antipathetic perceptions of women who do not conform with any traditional and expected roles and characteristics.[58]

 This discriminatory pathway has been progressively evident within the criminal justice system by the excessive influence of the infamous rape myths on the decision-making process of a rape case. As it will be further depicted victims of rape, specifically women, tend to be routinely blamed for the unlawful act of rape.[59] Rape myths are used as guidelines towards the categorisation of the victim’s conduct as ‘normal’ and ‘abnormal’ within each rape scenario.[60] Thus, rape myths are continuously kept relevant during every stage of the criminal justice process through the focus on the victim’s inconsistencies and characterological deviations from the ‘ideal victim’ standard.[61] The theory of an ‘ideal victim’ is a product of social stereotypes, so social expectations of a respectable and blameless rape victim are the main causes of the attribution of responsibility to rape victim. Generally, a socially respectable woman is identified through her marital status and her occupation.[62] Primarily due to the fact that rape is solely a gendered based crime, which automatically initiates the birth of gender bias, female victims shall be expected to receive intense criticism in accordance to the prevailing rational and normal female demeanour standards.

Comprehending the various victim-blaming aspects on a rape case.

 As Koss states, rape mythologies can be categorised in to three main division, first the ‘victim masochism’ class where it is believed that women are intrigued in the scenario of rape, second the most used and abused group of ‘victim precipitation’ where the victims are treated as the leading agent of the sexual intercourse due to her actions and lastly, the ‘victim fabrication’ stance which reflects the belief that women tend to fabricate and falsely allege a rape incident.[63] In order to examine and subsequently prove whether these perceptions do indeed dominate and control the outcome of rape cases, it is imperative to analyse the key rape myth regarding the severity of the nature of stranger rapes.

 Stranger rapes, also known as ‘real rape’ stereotypes, include sexual assaults perpetrated by an ‘armed man jumping from the bushes’[64] unknown to the victim who resorts to violence or even threats of violence to acheve his end goals of sexual penetration. It is assumed by the majority of judges and the jury that females are more likely to be attacked by a complete stranger than someone they have a close relationship with.[65] However, the statistics by the Crime Survey for England and Wales depict that in 2017 in 45 % of the cases, the defendants were either an ex-partner or a current partner. As it will be demonstrated in the next chapter of this thesis, most agents of the criminal justice system do not seem to recognise and come into terms with the reality, which leads to defendants in the rape cases to be unjustly acquitted.

Victim Masochism’ Beliefs

The main problems that both types of rape cases face, are the stereotypical and gendered standards of the female victim’s demeanour in accordance with the ‘ideal victim’ framework. Under the ‘victim masochism’ class of rape myth beliefs, many rape cases are being treated as merely a fantasy coming true, on the basis that many women fantasise about getting raped.[66] Such an opinion is linked with the proposition that most women get excited about the fantasy of rape and other masochistic situations, as it is shown in a survey in America.[67] A practice and belief so misogynistic and unreal, can lead to many serious rape cases not being reported to the police officers due to excessive and intense self-blame produced by female victims on the basis of guilt that they have attracted such an unfortunate incident.[68] Furthermore, by the complainant’s attire and actions many judges agree that a promiscuous woman was ‘asking for it’, which reflects both to stranger and acquaintance rape cases.[69] However, solely the fact that the female victim’s fantasies are the focal point of the examination implies a one-sided and unfair approach. From my standpoint, the main remark which seems completely left out of inquiry and inspection is that defendant might also have fantasies and desires of committing rape against someone. If this perception of women secretly wanting to be raped is being examined or even taken into consideration during the procedures of the criminal justice system, I consider it fair, just and reasonable for agents to further focus on the defendant’s sadistic desires too.

Victims Precipitating Rape

 The outcome of many rape cases is not based on legal factors, such as concrete evidence of the accused’s mens rea and actus reus, rather on non-legal information, such as the victim’s behaviour and the relational characteristics of the rape case. More specifically, characteristics of the victim and her behaviour are held to ascribe more responsibility to the victim rather than the perpetrator of an acquaintance rape case, also known as ‘date rape’ case. Characterological blame, is primarily based on the character and personality traits of the victim, whereas behavioural responsibility is placed upon the accuser based on her manners which hypothetically led to the commission of the rape.[70]

 Generally, a bad reputation, non-feminine manners, the choice of revealing clothes in connection to the victim’s past sexual history relationships will most definitely ascribe a negative and blameworthy tone on the victim’s credibility as a witness. First and foremost, there has been a predominant rape myth acceptance that women who comply with social norms and acquire logical thought process will not fall victims of any type of criminal act, in comparison to those who project an immoral lifestyle[71]. This rape myth is justified on the idea that only certain types of women with bad reputation and promiscuous character will be raped. The underlining doctrine, which connects with the important rape myth of resistance within rape cases, is that women can not get rapped ‘against their will’, which automatically reduces the severity of rape as a crime in general.[72] In addition, the guidelines on who will be treated by the legal agents as a promiscuous and dangerous woman lies in the societal and patriarchal idea of the ‘ideal victim’ being married or a virgin. Thus, any deviation from such a well-behaved character will equate to promiscuity.

 The main evidence of bad reputation can be acquired by the type of the victim’s job. For instance, it was held that between a nun, a student and a social worker versus a stripper, the nun and the social worker were held as a more respectable and blameless agent than the topless dancer in an incident of a rape case.[73] It shall be recognised that women who tend to breach the social standards of an honourable woman by working in a non-traditional occupation are substantially more likely to be blamed as precipitating the sexual assault. A prostitute for instance or a sexually loose women, will be characterised as ‘unrapable’ and responsible for the event in comparison to a virgin or a wife.[74] Nonetheless in my respect, the comparison of those two victim statuses between a wife and a prostitute appear ironic and sarcastic on the basis that in both statuses the woman used to be treated as a man’s property until recently. In addition, a judge once highlighted during a trial that it is “a man’s fundamental human right” to desire and have sexual intercourse with his wife, a statement which was supported by Justice Hayden who commented that there is “no other fundamental human right than the right of a man to have sex with his wife”.[75] It shall be mentioned though that the treatment and the prosecution of marital rape has been altered since the case of R v R,[76] where the defendant was on trial for sexually and physically assaulting his wife. In this case Lane LJ states that ‘a rapist remains a rapist subject to the criminal law, irrespective of his relationship with the victim’.[77] However, as it will demonstrated below legal and criminal justice agents argue that marital rape and any other type of acquaintance rape is not as severe as being attacked by a stranger.

 Barristers, judges and the jury do examine the clothing choices of the victim as evidence of her respectability and credibility. The portrait of an ‘ideal victim’ depicts a conservative woman who does not wear revealing clothes, thus any abnormality and divergence from such an image will result to negative comments. Studies which core point was the victim’s attire choices found that sexily and provocatively complainants were more inclined to be victimised.[78] Generally, the victim’s external features such as clothing, makeup or even her underwear choices have been used against women for many years, even in trial by the defence attorney for the victim’s credibility to be mistrusted by the jury and judge.[79] It is worth noting that, on the topic of external components, the physical attractiveness of female victim has been found to play a trivial role towards the decision of whether or not she will be treated as complying with the ‘ideal victim’ model. The issue of attractiveness and the attire choices of the victim are interrelated as it was shown in one research noting that women improperly and indecently dressed are treated as more attractive and thus more blameworthy than the carefully presented dressed woman.[80] The blame adhered to a provocatively dressed and attractive woman is supported on the belief that women dress in a revealing manner and attire to receive and provoke male attention, thus they are liable for any upcoming events including a male presence.[81] This rape myth declares that solely ‘young attractive women’ are more inclined to get raped rather than an old or an undesirable female figure.[82] Additionally, ascribing such a negative hue of blame to the rape victim justified on their everyday behaviour aligns with the patriarchal script where males are described by an uncontrollable sexual drive and urges whilst ‘looking for a sign’ of a flirtatious character leading to a sexual intercourse invitation, whereas women are considered as gatekeepers of their sexuality, in control of their own bodies and agents who monitor male’s sexual desires.[83] It can be concluded that an unattractive or even less respectable woman in comparison to a praiseworthy victim will be regarded as less worthy of justice due to the less harmful nature and effect of the rape.[84]

 In thoroughly examining the rape victim’s aspects of life choices and behaviour within the various criminal justice procedures, the legal officers also analyse and criticise the plaintiff’s past sexual relations. It is accepted within the English legal system, that women who are sexually loose will be treated as perpetrating rape. This thesis is developed by the double standard existing within the society that males are justified in having multiple sexual encounters, whereas a respective scenario for a woman would impinge and harm her respectability and worth. Evidence of past sexual relationships are mainly used in acquaintance rape cases, where the defendant and the victim are expected to have a prior sexual or non-sexual relationship. The victim’s past sexual history, especially with the defendant in question, is an immensely powerful determinant on juror’s decision and their verdict on the case, because such information seem to frustrate her and her claim’s reliability and credibility.[85] Therefore, in my opinion, the rape shield laws attempt to control and positively manipulate the admission of such evidence and to protect the victims from any further humiliation has been proven infertile and ineffective, as it will be highlighted below.

Generally, in a rape case where there is no violence or evidence of physical injury to the victim, where the parties are acquainted, where the expected encounter has not taken place outdoors but in a room or a house and where the victim does not ‘clearly’ address her non-consent to the unlawful sexual act, in the eyes of the jury and the courts no severe crime has taken place, due to the insufficiency of the completion of the requirements presented by the ‘ideal rape’ model.[86]

 There has been a plethora of academic literature supporting that a complainant who evidently had previous sexual relationship with the defendant will be judged without mercy in comparison to a stranger rape case where the plaintiff will be criticised less brutally.[87] Such a biased judicial treatment is developed by the most dominant rape myth that acquaintance rapes or date rapes are not as serious and harmful to the victims as a stranger rape.[88]


[1] If she Consented Once, She Consented Again – A Legal Fallacy in Forcible Rape Cases, 10 Vaplaraiso University Law Review (1975) 127.

[2] ibid.

[3] Olivia Smith and Tina Skinner, ‘How Rape Myths are Used and Challenged in Rape and Sexual Assault Trials’ (2017) 26 Social and Legal Studies 3 <https://journals.sagepub.com/doi/abs/10.1177/0964663916680130> accessed 21 May 2019.

[4] Sokratis Dinos, Nina Burrowes, Karen Hammond and Christina Cunliffe, ‘A Systematic Review of Juries’ Assesment of Rape Victims: Do Rape Myths Impact on Juror Decision Making?’ (2015) 43 (1) International Journal of Law, Crime and Jusitce 38.

[5] Kamal Ahmed and Martin Bright, ‘Women Angry as Rapists Go Free’ (2000) <https://www.theguardian.com/uk/2000/jul/30/kamalahmed.martinbright> Accessed on 22 May 2019.

[6] Office for National Statistics, Crime in England and Wales: Year Ending December 2018  (Cm 2018) <https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/crimeinenglandandwales/yearendingdecember2018#offences-involving-knives-or-sharp-instruments-are-still-rising-while-firearms-offences-decrease> Accessed on 20 May 2019.

[7] ibid.

[8] Office for National Statistics, Crime in England and Wales: year ending March 2019  (Cm 2019) <https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/crimeinenglandandwales/yearendingmarch2019> Accessed on 20 May 2019.

[9] ‘Rape Myths and Juries’ HC Deb (2018) <https://www.theyworkforyou.com/whall/?id=2018-11-21b.343.1>  Accessed 26 May 2019.

[10] Lorraine Wolhuter, Victimology: Victimisation and Victim’s Rights (Routledge- Cavendish 2008) 58.

[11] Youth Justice and Criminal Evidence Act 1997, s 26.

[12] Youth Justice and Criminal Evidence Act 1997, s 24.

[13] Youth Justice and Criminal Evidence Act 1997, s 29.

[14] Youth Justice and Criminal Evidence Act 1997, s 28.

[15] Youth Justice and Criminal Evidence Act 1997, s 27.

[16] Youth Justice and Criminal Evidence Act 1997, s 25.

[17] Youth Justice and Criminal Evidence Act 1997, s 23.

[18] Kebell Mark R, O’Kelly Caitriona M.E, Gilchrist Elizabeth L, ‘Rape Victims’ Experiences of Giving Evidence in English Courts: A Survey’ (2007) 14(1) Psychiatry, Psychology and Law 113.

[19] Youth Justice and Criminal Evidence Act 1997, s 16.

[20] Youth Justice and Criminal Evidence Act 1997, s 17.

[21] Coroners and Justice Act 2009, s 101.

[22] ibid 15.

[23] Youth Justice and Criminal Evidence Act 1997, s 27 (4).

[24] Ibid s 27 (2).

[25] Sexual Offences Act 2003, s 1 (1).

[26] Sexual Offences Act 2003, s 74.

[27] Youth Justice and Criminal Evidence Act 1997, s 41.

[28] European Court of Human Rights, Article 8.

[29] European Court of Human Rights, Article 6.

[30] Sandra Walklate (ed), Handbook of Victims and Victimology (Cullompton: Willan 2007) 91.

[31] Esther I. Madriz, ‘Images of Criminals and Victims: A Study on Women’s Fear and Social Control’ (1997) 11 Gender and Society 348.

[32] ibid 354.

[33] Brian Josephs, ‘All Victims should be ‘Ideal Victims’ (Vice, 31 May 2017) <https://www.vice.com/en_uk/article/ywmavg/all-victims-should-be-ideal-victims> accessed 23 May 2019.

[34] Christine Schwobel-Patel, ‘Nils Christie’s ‘Ideal Victim’ applied: From Lions to Swarms’ ( Critical Legal Thinking 2015)  <http://criticallegalthinking.com/2015/08/05/nils-christies-ideal-victim-applied-from-lions-to-swarms/> Accessed on 30 May 2019.

[35] ibid.

[36] Barbara Hudson, ‘Restorative Justice and Gendered Violence: Diversion or Effective Justice’ (2002) British Journal of Criminology 624.

[37] Wendy Larcombe, ‘The ‘Ideal’ Victim v Successful Rape Complaints: Not What you Might Expect’ (2002) 10 Feminist Legal Studies 134.

[38] ibid 133.

[39] Beverly Balos and Mary Louise Fellows, ‘Guilty of the Crime of Trust: Non Stranger Rape’ (1991) Minnesota Law Review 609.

[40] Alan Clarke, Jo Moran Ellis and Judith Sleney, ‘Attitudes to Date Rape and Relationship Rape: A Qualitative Study’ (2002) Department of Sociology and SSMR 23 <http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.515.3098&rep=rep1&type=pdf> Accessed on 20 June 2019.

[41] Frances Perraudin, ‘Only 3% of Rape Claims in London result in conviction, study says’ (The Guardian, 13 July 2019) <https://www.theguardian.com/law/2019/jul/31/only-3-of-rape-claims-london-result-convictions-study-says> Accessed 1 August 2019.

[42] Smith, O and Skinner, ‘How Rape Myths are Used and Challenged in Rape and Sexual Assault Trials’ (2017) 26 Social and Legal Studies 13.

[43] Melanie Randall, ‘Sexual Assault Law, Credibility and Ideal Victims: Consent, Resistance and Victim Blaming’ (2010) 22 Canadian Journal of Women and the Law 408.

[44] ibid 408-409.

[45] Emma Sleath and Ray Bull, ‘Comparing Rape Victim and Perpetrator Blaming in a Police Officer Sample: Differences Between Police Officers with and without special training’ (2012) Criminal Justice and Behaviour 647.

[46] Kevin M. Carlsmith and John M. Darley, ‘Why do we Punish? Deterrence and Just Deserts as Motives for Punishment’ (2002) 83 Journal of Personality and Social Psychology 285.

[47] Alan Norrie, ‘A Critique of Criminal Causation’ (1991) The Modern Law Review 689. 

[48] Emma Sleath and Ray Bull, ‘Comparing Rape Victim and Perpetrator Blaming in a Police Officer Sample: Differences Between Police Officers with and without special training’ (2012) Criminal Justice and Behaviour 647.

[49] Isabel Correia, Patricia Aguiar and Jorge Vala, ‘The Effects of Belief in a Just World and Victim’s Innocence on Secondary Victimisation, Judgments of Justice and Deservingness’ (2001) 14 (3) Social Justice Research 328.

[50] Caroline Wolf Harlow, ‘Robbery Victims’ Bureau of Justice Statistics 4 <https://bjs.gov/content/pub/pdf/rv.pdf> accessed 28 May 2019.

[51] Richard B. Felson and Christopher Palmore, ‘Biases in Blaming Victims of Rape and other Crime’ (2018) 8 Psychology of Violence 392.

[52] ibid 396.

[53] Julie Bindel, ‘Juries Have No Place in Rape Trials. They simply can’t be Trusted’ (The Guardian, 21 November 2018) <https://www.theguardian.com/commentisfree/2018/nov/21/juries-rape-trials-myths-justice> accessed 27 May 2019.

[54] Phillip N.S Rumney, ‘When Rape isn’t Rape: Court of Appeal Sentencing Practice in Cases on Marital and Relationship Rape’ (1999) 19 Oxford Journal of Legal Studies 249.

[55] Suresh Kanekar, Nirmala J.P Pinto and Deepa Mazumdar, ‘Causal and Moral Responsibility of Victims of Rape and Robber’ (1985) 15 (4) Journal of Applied Social Psychology 623.

[56] Barbara Masser, Kate Lee and Blake M. Mckimmie, ‘Bad Woman, Bad Victim? Disentangling the Effects of Victim Stereotypicality, Gender Stereotypicality and Benevolent Sexism on Acquaintance Rape Victim Blame’ (2010) 62 Sex Roles 494. 

[57] Dominic Abrams, Tendayi Viki, Barbara Masser and Gerd Bohner, ‘Perceptions of Stranger and Acquiantance Rape: The Role of Benevolent and Hostile Sexism in Victim Blame and Rape Proclivity’ (2003) 84 (1) Journal of Personality and Social Psychology 112.

[58] ibid.

[59] Julie Bindel, ‘Juries Have No Place in Rape Trials. They simply can’t be Trusted’ (The Guardian, 21 November 2018) <https://www.theguardian.com/commentisfree/2018/nov/21/juries-rape-trials-myths-justice> accessed 27 May 2019.

[60] Carol Bohmer and Audrey Blumberg, ‘Twice Traumatised: The Rape Victim and the Court’ (1975) 58 Judicature 394.

[61] Olivia Smith and Tina Skinner, ‘How Rape Myths are Used and Challenged in Rape and Sexual Assault Trials’ (2017) 26 (4) Social and Legal Studies 442.

[62] Barbara Krahe, ‘Social Psychological Issues in the Study of Rape’ (1991) 2 (1) European Review of Social Psychology 282.

[63] Amy Buddie and Arthur Miller, ‘Beyond Rape Myths: A more Complex View of Perceptions of Rape Victims’ (2001) 45 (3) Sex Roles 140.

[64] Renata Bongiorno, Blake M. Mckimmie and Barbara M. Masser, ‘The Selective use of Rape-Victim Stereotypes to Protect Culturally Similar Perpetrators’ (2016) 40 (3) Psychology of Women Quarterly 398.

[65] Liz Kelly, ‘Routes to (In)Justice: A Research Review on the Reporting, Investigation and Prosecution of Rape Cases’ (2001) Child and Women Abuse Studies 4.

[66] Howard League For Penal Reform, Unlawful Sex: Offences, Victims and Offenders in the Criminal Justice System of England and Wales/ the Report of Howard League Working Party (Waterlow, 1985) 41.

[67] Howard League For Penal Reform, Unlawful Sex: Offences, Victims and Offenders in the Criminal Justice System of England and Wales/ the Report of Howard League Working Party (Waterlow, 1985) 41.

[68] Nancy E. Snow, ‘Self-Blame and Blame of Rape Victims’ (1994) 8 Public Affairs Quarterly 380.

[69] Caelainn Barr and David Pegg, ‘Rape Prosecution in England and Wales Falls to Five-Year low’ (The Guardian, 6 March 2019) <https://www.theguardian.com/society/2019/mar/06/prosecution-rate-in-england-and-wales-falls-to-five-year-low> accessed 24 May 2019.

[70] Irina Anderson, ‘Characterological and Behavioural Blame in Conversations about Female and Male Rape’ (1999) 384.

[71] Olivia Smith and Tina Skinner, ‘How Rape Myths are Used and Challenged in Rape and Sexual Assault Trials’ (2017) 26 (4) Social and Legal Studies 27.

[72] Shana L. Maier, ‘The Complexity of Victim-Questioning Attitudes by Rape Victim Advocates: Exploring Some Gray Areas’ (2013) 18 (12) Violence Against Women 1415.

[73] Paul Pollard, ‘Judgements about Victims and Attackers in Depicted Rapes: A Review’ (1992) 3 (1) British Journal of Social Psychology 308.

[74] Melanie Randall, ‘Sexual Assault Law, Credibility and Ideal Victims: Consent, Resistance and Victim Blaming’ (2010) 22 Canadian Journal of Women and the Law 409.

[75] Harriet Hall, ‘A Judge said Marital Sex is a Fundamental Human Right for Men. Let’s Not Underestimate How Dangerous that is’ (Independent, 3 April 2019)  <https://www.independent.co.uk/voices/sex-man-wife-learning-disabilities-court-judge-hayden-sexual-assault-a8853141.html> accessed on 28 May 2019.

[76] [1992] 1 AC 599.

[77] Philip N.S Rumney, ‘When Rape Isn’t Rape: Court of Appeal Sentencing Practice in Case of Marital and Relationship Rape’ (1999) 19 Oxford Journal of Legal Studies 243.

[78] Paul Pollard, ‘Judgements about Victims and Attackers in Depicted Rapes: A Review’ (1992) 3 (1) British Journal of Social Psychology 315.

[79] Harriet Hall, ‘What sort of Underwear Exactly Should Women be Wearing to be Taken Seriously in Court?’ ( Independent, 17 November 2018) <https://www.independent.co.uk/voices/ireland-rape-trial-thisisnotconsent-lace-thong-underwear-evidence-barrister-protest-a8638686.html> accessed 26 May 2019.

[80] Mark A. Whatley, ‘Victim Characteristics Influencing Attributions of Responsibility to Rape Victims: A Meta-Analysis’ (1996) 1 Aggression and Violent Behaviour 82.

[81] ibid 90.

[82] Jacqueline M. Wheatcroft, Graham F. Wagstaff and Annmarie Moran, ‘Revictimizing the Victim? How Rape Victims Experience the UK Legal System’ (2009) 4 (3) 273.

[83] Louise Ellison and Vanessa E. Munro, ‘Of ‘Normal Sex’ and ‘Real Rape’: Exploring the Use of Socio-Sexual Scripts in (Mock) Jury Deliberation’ (2009) 18 (3) 295.

[84] Paul Pollard, ‘Judgements about Victims and Attackers in Depicted Rapes: A Review’ (1992) 3 (1) British Journal of Social Psychology 309.

[85] K. L’Armand and Albert Pepitone, ‘Judgments of Rape: A Study of Victim-Rapist Relationship and Victim Sexual History’ (1982) 8 (1) Personality and Social Psychology Bulletin 134.

[86] Sokratis Dinos, Nina Burrowes, Karen Hammond and Christina Cunliffe, ‘A Systematic Review of Juries’ Assesment of Rape Victims: Do Rape Myths Impact on Juror Decision Making?’ (2015) 43 (1) International Journal of Law, Crime and Jusitce 40.

[87] Regina A. Schuller and Marc A. Klippenstine, ‘The Impact of Complainant Sexual History Evidence on Jurors’s Decisions: Considerations from a Psychological Perspective’ (2004) 10 (3) Psychology Public Policy and Law 327. 

[88] Shana L. Maier, ‘The Complexity of Victim-Questioning Attitudes by Rape Victim Advocates: Exploring Some Gray Areas’ (2013) 18 (12) Violence Against Women 1413.

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