Welcome to the fourth blog post in a series on the theme of legal personhood. Each fortnight we will ask a La Trobe Law School academic to write about how the concept of legal personhood intersects with their research interests.Today’s post is written by Dr Emma Henderson, who researches and writes about sexual violence, human rights and feminist legal theory.
If you stop and think about it for a moment, the sheer magnitude of the energy used to construct and reinforce the “personhood” of women across the globe will amaze you. Legal systems throughout recorded history have sought to constrain and shape the ways in which women may interact with the world. Legal processes have been used to construct women as citizens (or not) who can vote (or not); own property (or not); study and work in various professions (or not), make their own medical decisions, decide who and when to marry (or divorce), to work after marriage (or not), to have sex, whether and when to start families, and where and how to give birth (or not); to drive, to travel, to make their own decisions about what to wear (or not) – indeed, it is nigh impossible to think of an aspect of women’s lives, whether public or private, that is not the result of, or significantly impacted by, the construction of their identity as legal persons.
Within the legal system itself, the rules of personhood determine whether women can be viewed as the victims of harm (or whether their male relatives are the true victims); whether they can bring a legal action in their own right; whether they can give evidence in a trial and what value that evidence will have (for instance, a woman’s testimony may need to be corroborated by an independent eye witness to be legally valid), and whether they can act as jurors or lawyers or judges or in any capacity at all, in a trial.
The legal rules surrounding rape provide an informative lens through which to view the effects of the legal construction of personhood on women. Within our own liberal legal tradition, rape started off as a property law issue rather than a crime. In a world in which women were not viewed as legal rights holders, the wrong of rape was not that a woman had been denied the right to make decisions about whether to engage in sexual activity or not but rather a harm suffered by fathers (who lost a marriageable asset) or husbands (who lost the certainty of securing their own bloodline) (Rush, 1997: 78). It was not until 1992 that the last (explicit) vestige of this conception of rape as an issue of property ownership was finally removed, when the immunity enjoyed by husbands throughout Australia, in relation to the rape of their wives, was abolished (Larcombe and Heath, 2012).
Gradually reconstructed as a crime against the person rather than a civil harm or a crime against property, rape has gone through many iterations as the legal personhood of women has shifted. For centuries viewed as a crime of violence, the legal “fact” of the unreliable (even unacceptable) nature of female testimony was overcome by focusing on the visible traces of physical harm (cuts, bruises, semen) left on the bodies of raped women, and thus able to be witnessed by police, doctors, or others who did make reliable narrators. These physical traces of evidence made possible the prosecution of a small category of what tend to be called “real rapes” – offences against virtuous women whose “will” was overpowered by the violence of disreputable men not previously known to them (Duncanson and Henderson, 2014: 156).
The last thirty years has seen yet another significant shift in the construction of the crime of rape, mirroring a wider discursive acceptance of women’s legal equality with men. Rather than focusing on the violence of the sexual penetration and whether the act took place “against the will” of the complainant, the crime has been redefined as one which offends against a woman’s right to choose – a mental decision, rather than a physical one. Juries are now exhorted to consider whether the accused took sufficient steps to ascertain the freely given and active consent of the complainant before engaging in sexual activity, and legislation now explicitly states that the fact that a woman has suffered no physical harm is not a barrier to prosecution, nor is the fact that she did not physically or vocally resist unwanted sexual activity. In this newly constructed legal configuration, women are shaped as independent liberal subjects who can offer or refuse consent on their own terms: rape has been redefined, in essence, as a failure to properly contract the sexual bargain (Pateman, 1988: 55; Du Toit, 2007: 91).
And yet this latest iteration of legal personality has failed to find favour. Where the old “real rape” definition applied to a small percentage of potential complainants, and this in turn led to a low reporting/low trial ratio, roughly half of those charged either pleaded guilty or were found guilty at trial. In Victoria, our current vastly more expanded definition of rape applies to a much larger pool of potential complainants, but the reporting rate and consequently the trial rates are still low, and for numerous and complicated reasons, the rates of those pleading guilty and those convicted at trial have been falling steadily since the first attempts at reform in 1980, and are now at an all-time low. Arguably one of the most potent reasons for this fact is the operation of what is called the “personal responsibility” narrative that has come to dominate rape trials. The current legal status of women within our liberal democracy is that of full citizens, with equal negotiating power to men, who are able to freely and fully engage as independent parties to the sexual contract. As such, women are held accountable for the way they “negotiate” and in situations where a court considers that they have acted irresponsibly (by drinking alcohol in the presence of men, by wearing the wrong clothes, by being in the wrong place – all the “common sense” rules which permeate our understandings of rape), it is unlikely that the accused will be held accountable.
Of course, what amounts to a failure to take responsibility for your own safety is a moveable feast: in the case of Sims the complainant was raped in her own home by a stranger who entered her home and her person without permission – surely a classic case of rape. However the fact that she fell asleep on a sofa which could be viewed from the street through inadequately closed curtains, when her nightdress had ridden up around her hips, and without ensuring that her front door was securely locked, when viewed through the lens of ‘personal responsibility’ significantly changes the narrative. These failures allowed the accused, high on a mix of ecstasy and beer, to peer through the gap, see her, and then let himself in through the unlocked front door in order to perform oral penetrative sex on her while she was asleep, and then digital penetration after she awoke. Sims pleaded guilty to rape, but was handed a wholly suspended 33 month prison sentence by a judge who commented that Sims had “responded spontaneously to an unusual situation” before wishing him well in his future career. In this way, the complainant was offered little more protection in her own home than the homeless and drug addicted woman who blacked out in a public park and awakened to discover that she was being beaten and raped by a stranger. In that case, even the testimony of the passerby who heard the complainant screaming ‘I’m being raped’ and who testified in court that it took 30 seconds for the accused to respond to his shouts to stop, combined with medical evidence of injuries that supported a sexual assault hypothesis, was insufficient to secure a conviction. Being unconscious in a public place is an even more serious breach of personal responsibility than being asleep in your own sitting room. The varying but stringent demands of personal responsibility are the heavy cost we pay for our legal status as freely contracting sexual citizens.
Daly, Kathleen and Bouhours, Brigette, ‘Rape and Attrition in the Legal Process: A Comparative Analysis of Five Countries’ in Michael Tonry (ed), Crime and Justice: A Review of Research (University of Chicago Press, 2010)
Duncanson, Kirsty and Henderson, Emma, ‘Narrative, Theatre, and the Disruptive Potential of Jury Directions in Rape Trials’ (2014) 22(2) Feminist Legal Studies 155
Larcombe, Wendy and Heath, Mary, ‘Developing the Common Law and Rewriting the History of Rape in Marriage in Australia: PGA v The Queen‘ (2012) 34 Sydney Law Review 784
Neave, Marcia, ‘New Approaches to Sexual Offences; (paper presented at the Australasian Institute of Judicial Administration Conference, Criminal Justice in Australia and New Zealand – Issues and Challenges for Judicial Administration, Sydney, Australia, 8 September 2011)
Pateman, Carole, The Sexual Contract (Stanford University Press, 1988)
Rush, Peter, ‘On Being Legal: the Laws of Sexual Assault in Victoria’ (1997) 9 Australian Feminist Law Journal 76
Du Toit, Louise, ‘The Conditions of Consent’ in Rosemary Hunter and Sharon Cowan (eds), Choice and Consent: Feminist Engagements with Law and Subjectivity (Routledge-Cavendish, 2007)
Emma Henderson, ‘Legal Personhood #4: Women’, Law and Justice, 20 May 2015 (La Trobe Law School Blog, http://law.blogs.latrobe.edu.au/)