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Victim-blame as a symptom of rape myth acceptance? Another look at how young people in England understand sexual consent

Published online by Cambridge University Press:  02 January 2018

David Gurnham
David Gurnham*
Affiliation:
University of Southampton
*
David Gurnham, Associate Professor in Law, Southampton Law School, Faculty of Business, Law and Art, University of Southampton, Highfield, Southampton SO17 1BJ, UK. Email: [email protected]
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Abstract

There is no doubt that being ‘critical’ about victim-blame requires ensuring first that it is the perpetrator and not the victim who is held responsible for sexual offending. At the same time, engagement with this topic requires critical acuity as to how victim-blame is identified, and to the boundary between raising legitimate questions about the presence or absence of consent in less than ideal circumstances, and falling back on to myths and stereotypes that are unfair to complainants and damaging to victims. This paper identifies and critiques three purported intersections of rape myths and victim-blame that have gained widespread acknowledgement within feminist legal studies: first, that a woman is blamed for voluntarily putting herself into circumstances in which ‘rape happens’; secondly, that a woman is blamed for ‘miscommunicating’ her refusal; and, thirdly, that consent is wrongly understood to have been given in circumstances where a woman in fact lacked the freedom to do so. This critique of methodological and analytical approaches to identifying victim-blame as a symptom of rape myth acceptance focuses on research published recently by the Office of the Children's Commissioner, ‘“Sex Without Consent, I Suppose That Is Rape”: How Young People in England Understand Sexual Consent’.

Type
Research Article
Information
Legal Studies , Volume 36 , Issue 2 , June 2016 , pp. 258 - 278
Copyright
Copyright © Society of Legal Scholars 2016

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Footnotes

*

The author would like to thank two anonymous reviewers, as well as the following friends and colleagues, for comments and feedback on previous drafts of this paper: Harry Annison, Ummni Khan, Imogen Jones and Helen Reece.

References

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14. Quoting Ellison and Munro, above n 2 [at fn 4]. See also Gray et al, above n 1, who also draw conclusions about ‘blame’ from having asked questions about ‘responsibility’ (see esp p 380).

15. Rudman et al, above n 1, represents that first strand; Littleton, above n 11, represents the second.

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21. Littleton et al, above n 19, at 794.

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25. Ibid: ‘Women who are labelled in this manner [as ‘sluts’ or as ‘easy’] are often regarded as appropriate targets for aggressive sexual advances by men and as having fewer rights to refuse these advances.’

26. See eg Reece, above n 17.

27. As Wallerstein (above n 3) puts it: ‘the law should be designed to protect the vulnerable even if they got into this vulnerable position stupidly and by their own doing. The fact that a woman takes a risk does not mean that she now is responsible for all the normal consequences of her actions …’ (at 327).

28. Littleton et al, above n 19.

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31. See Gurnham, above n 17; Reece, above n 17.

32. Coy et al, above n 18, p 21.

33. Ibid, p 22.

34. Ibid, p 26 (my emphasis).

35. Ibid, p 21.

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44. Ellison and Munro, above n 19.

45. That is, 15.4% of women and 12.5% of men: Muehlenhard, CL and Rogers, CS ‘Token resistance to sex: new perspectives on an old stereotype’ (1998) 22 Psychol Women Q 443.CrossRefGoogle Scholar

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47. Beres, above n 40, at 5–6, 8–9. For example, to quote Beres on the subject of ‘tacit knowledge’: ‘When participants were asked about how they understand their partner's willingness to engage in certain sexual activities, almost all participants responded by saying that it is easy to determine when someone was interested in casual sex – “you just know”’ (at 5).

48. Ibid, at 10.

49. Ibid.

50. Ibid.

51. Jozkowski and Peterson, above n 42, at 520.

52. Ibid, at 521.

53. Kitzinger and Frith, above n 41.

54. Ellison and Munro, above n 19.

55. Ibid, at 299.

56. Coy et al, above n 18, p 27.

57. Ibid, pp 29–31. Examples of such contributions included the following: ‘“she didn't open her mouth, she can talk herself can't she? She's got her own mouth, if she didn't want to she didn't have to do it …’ (female, aged 16); ‘why didn't she just go “well you can have my phone then, I'm not screwing all three of you”’ (male, aged 17)’.

58. Ibid, p 31.

59. Ibid.

60. Ibid, pp 31–32.

61. Obviously Sabrina's young age makes her consent invalid in any case, but this is also true of Amir. On the potential for ambiguity in interpreting limited information about sexual behaviours and attitudes, see Jozkowski and Peterson, above n 42, p 521, who suggest that men who report being prepared to use force in a sexual encounter ‘may be imprecisely referring to direct, assertive, or passionate initiation with a sexual partner during a sexual encounter rather than actual physical force’.

62. Coy et al, above n 18, p 34.

63. For a scholarly defence of the possibility of ‘choice’ under compromised circumstances, see Dripps, D ‘Men, women and rape’ (1994) 63(1) Fordham L Rev 125 at 139–147.Google Scholar The question of whether the law itself engages in victim-blame arose in the wake of R v Bree [2007] All ER (D) 412 (Mar), in which Sir Igor Judge P ruled, at para 34, that: ‘[W]here the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.’ For a critique of this judgment that engages in victim-blaming on the basis of a woman's ‘prior fault’ in voluntarily getting drunk, see Wallerstein, above n 3, particularly pp 324–328.

64. Section 74 defines consent as being where a person ‘agrees by choice, and has the freedom and capacity to make that choice’; s 75 lists six circumstances (s 75(2)(a–f)) in which there is an evidential presumption that the complainant did not consent.

65. A position that in English law derives from the pre-SOA case of R v Olugboja [1982] QB 320.

66. See Dripps, above n 63.

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76. Khan, above n 71.

77. Coy et al, above n 18, p 25.

78. Muehlenhard and Rogers, above n 45. See also Peterson and Muehlenhard, above n 46, who demonstrate some ways in which individuals may consent to unwanted sex and conversely desire sex that is non-consensual.

79. Wallerstein, above n 3, at 325.

80. On this point, see further H Reece ‘Debating rape myths’, LSE Law, Society and Economy Working Papers (21/2014); available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2497844 (accessed 9 July 2015).