Friday, 14 November 2008

Friday Feminist - Jennifer Temkin

Cross posted

If the police have behaved brutishly towards, rape victims, it is the courts which may be said to have set the tone. Indeed, it is often claimed that in rape cases the complainant rather than the defendant is on trial. Certainly the focus of the court's attention is frequently upon her and rather less upon him. Yet the complainant generally has no legal assistance. ...

Much criticism of the treatment of rape victims in court has centred on the use of sexual history evidence to blacken their character. But other strategies commonly employed against them are equally oppressive and invidious. Newby identified three distinct tactics utilized by defence counsel in rape trials in Western Australia. They are also in frequent use elsewhere. The first is continual questioning as to details of the rape incident... The purpose is to test her story for inconsistencies and to attempt to twist her interpretation of events so as to make them consistent with an assumption of consent. The second strategy relates to cases where the victim and accused were known to each other. In such cases, questioning will be particularly detailed and the most intimate aspects of any pre-existing sexual relationship will commonly be rehearsed in court. Finally, the defence may seek to challenge the general character of the witness. This may include by goes far beyond references to her sexual past. The idea is to suggest to the court 'that this sort of woman, who behaves in this kind of way, in these circumstances is quite reasonably to be taken to be consenting.' Thus attention will be drawn to behaviour such as hitch-hiking, excessive drinking or smoking, the wearing of 'seductive' clothing or the use of bad language.

Jennifer Temkin, "Women, rape and law reform", in Sylvana Tomaselli and Roy Porter (eds), Rape: A Historical and Social Enquiry, Oxford, 1986

1 comment:

Anna said...

The courts may have lifted their game (somewhat) since this was written, but the assumptions behind these defense tactics are still alive and well, judging by the general acceptance of the ALAC ad and the public reaction to the rape of the 18 year old woman by English rugby players.