Rape Prosecution and the Bolton Case
Wendy Larcombe’s paper, ‘The “Ideal” Victim V Successful Rape Complainants: Not What You Might Expect’, opens by pointing out that in Australia attrition rates for rape convictions are as high as 90% (essay published in 2002) and, referencing Susan Estrich, Larcombe highlights that debate as to what is “real rape” is legitimized by the criminal justice process. Sue Lees seems to support this idea in her book Carnal Knowledge, when she considers changes in what is perceived as rape.
One explanation for the drop in conviction rate seems to lie in the fact that a steadily increasing proportion of reported rapes do not conform to the stereotypical rape scenario of the psychopathological stranger rapist, seizing women in dark streets. A far higher proportion of the women reporting nowadays are, by contrast, raped by men they know, others in their own homes, and these are precisely the cases where it is more difficult to secure a conviction. (Lees 2002: xii)
We are much aware today of forms of rape closer to home, such as date rape, marital rape, drug-assisted rape and acquaintance rape (where the rapist is a friend or co-worker); and Lees points out that the rapists in these cases sometimes have a ‘distorted belief system’ as they still believe that the women wanted the rape even as they are going to prison (2002: xii). It is these types of rape that are usually difficult to prosecute, as can be seen in the British case of the Black Cab Rapist, John Worboys who managed to assault up to 100 women before he was caught. At this link on the Guardian website , you can see the testimony of one of his victims who was laughed at by police when she reported that he had raped her; the officers dropped their investigation when the taxi driver told them the woman had been drunk. Worboys wasn’t actually caught until roughly a year later when he committed more crimes, and he was eventually convicted.
The Worboys case was unusual though, because rape cases are much more likely to be prosecuted where the rapist is a stranger to the rape survivor.  There are other factors that improve chances of a rape being prosecuted such as cases where a weapon is used and where there is strong evidence of overt resistance e.g. the rape survivor being injured. Such criteria play on stereotypes of vulnerable females, while prosecuting lawyers construct the rape survivor as a feminine ideal: chaste, sensible, responsible, cautious and dependent. This ideal is not a woman who takes risks, but perhaps simply a woman who is in the wrong place at the wrong time.
Defence teams have a number of strategies that they use to dislodge this feminine ideal. Sometimes this means reframing the rape as a site of pleasure, what Larcombe calls a ‘pornographic scenario’; the rape survivor is portrayed as a willing participant who helps to bring the sexual act about, not a victim. Defence lawyers also create doubt as to whether the rape survivor is really a woman living in the boundaries of ‘normal’ society. If the rape survivor has a history of drug or alcohol abuse, criminality, mental illness, incest or even mere sexual adventurousness, the lawyers will drag it into court to discredit her (or him) and suggest that there is another more sinister identity behind the “mask” of the rape survivor.
In court, these strategies manifest themselves in a technique called “whacking”, which involves persistent bullying in questioning the witness. The ultimate aim of course is to make her (or him) drop the charge. What makes this ordeal particularly horrifying is the fact that what is being debated is the right of the rape survivor to have justice, with the defence teams often suggesting that the crime that took place is the fault of the survivor herself (or himself), because she has supposedly failed to protect herself.
It is though possible, according to Larcombe, for cases to succeed even where the rape survivor does not fit the prosecution’s preferred ideal of womanhood, but the key is the rape survivor’s testimony. After studying a number of real cases where unconventional women won their rape cases, Larcombe has found that the success is based mainly on the ability of the rape survivor to make her story convincing. In the cases studied, the defence teams did try to construct the women as sexualized, contradictory or unreliable, but the women’s refusal to consent to this version of themselves made the juries believe that they had not consented to the sexual act being debated either.
Of course, the problem with this news is that it puts the onus on women to have to fight, to have to force the jury to believe their testimony, and some women after this kind of ordeal are simply not psychologically strong enough. In The Female Fear, Margaret T. Gordon and Stephanie Riger point out that fear of rape ‘is worse than fear of other crimes because women know they are held responsible for avoiding rape, and should they be victimized, they know they are likely to be blamed’ (Gordon and Riger 1989: 2).
It is interesting to consider Larcombe’s analysis of legal discourse in rape trials in relation to a recent case in the UK. In Bolton in the north of England, the prosecution of a case of gang rape was thrown out by the judge, because the rape survivor in this case had fantasized about group sex online. Peter Tachell explains the ridiculous and bizarre implications of this act on The Guardian Online :
Watch out. If you have ever had fantasies about group sex and shared them with another person, you have forfeited your right to say no to sex and can be lawfully raped.
The rape survivor’s discussion of group sex online immediately removed her from the category of the pure, chaste, sensible woman, and instead put her in the category of the oversexed and the prostitute, women who in the current status quo can be used and abused to any extent.  What is particularly awful about this prejudice though, is that the woman’s testimony which might have been fundamental to the trying of the crime was never able to be considered by the jury, because the judge threw out the entire case. Cases like this one conform the conclusions of Joan McGregor in her study Is it Rape?:
The impotence of the legal response to the epidemic of rape reinforces societal acceptance of the message. The rapist aims, whether consciously or not, to establish his mastery of men over women and the law unwittingly may be supporting him. (McGrgeor 2005: 231)
 On the other hand, taxi drivers are thought of in London as being the friendly, average “bloke”, and the findings on an internal police investigation suggest that the police officers involved were in a mindset where they simply could not believe that a taxi driver could be guilty.
 This is not unique to Western legal discourse. In Sexual Violence and the Law in Japan, Catherine Burns discusses how in more ambiguous cases ‘the demonstration of utmost force-resistance becomes central to the judicial interpretation of rape’; hence the defence lawyers use ‘a construction of rape as extreme sex, motivated by the same natural uncontrollable urges that drive sukebei sexuality’ and rape survivors are reframed as ‘prostitute “Others”’ (Burns 2005: 160). But what if the rape survivor is a prostitute? At the beginning of her book, Burns begins with the 1980s Ikebukuro murder trial which involved the rape of a prostitute: ‘For one hour and twenty minutes he [the client] filmed and photographed while he ripped and cut off her clothing, harassed and humiliated her, and coerced her into what the court described as ‘abnormal’ sexual acts’ (2005: 25). Yet when the case came to trial, much of the debate focussed on the fact that the woman, in trying to escape, stabbed and killed her client.
Burns, Catherine (2005) Sexual Violence and the Law in Japan. New York/London: Routledge.
Gordon, Margaret T. and Stephanie Riger (1989) The Female Fear. New York and London: The Free Press/Macmillan.
Larcombe, Wendy (2002) ‘The “Ideal” Victim V Successful Rape Complainants: Not What You Might Expect’. Feminist Legal Studies 10.2: 131-.
Laville, Sandra (2009) ‘Taxi rapist may have attacked more than 100’. The Guardian. Available online (accessed 2nd March 2009).
Laville, Sandra and Vikram Dodd (2009) ‘Police errors left rapist John Worboys free to strike – but no officers sacked’. The Guardian. Available online (accessed 2nd March 2009).
Lees, Sue (2002) Carnal Knowledge: Rape on Trial. London: The Women’s Press.
McGregor, Joan (2005) Is it Rape? On acquaintance rape and taking women’s consent seriously. Aldershot and Burlington: Ashgate.
Tachell, Peter (2010) ‘Throwback to a moralistic age’. The Guardian. Available online (accessed 2nd March 2010).