By Helen Reece
In recent decades, England and Wales have experienced extensive rape law reform and a substantial rise in rape reporting, but the number of rape convictions has not kept pace, leading to a galloping attrition rate: the current proportion of recorded rapes that result in a rape conviction is about 7%. To the extent that rape law reform aimed at convicting more men of rape, it has not been an unqualified success.
This has led many erstwhile law reformers to turn their attention to attitudes to rape. Their argument is that reform has proved ineffective because so many people, particularly those involved in the criminal justice system, hold ‘rape myths’. This argument has achieved broad consensus; perhaps perplexingly, most people believe that most people believe rape myths. But I suggest that popular belief in rape myths has been exaggerated. We are creating myths about myths, or myth myths.
Myth Myth No. 1
There is a particularly stark justice gap in relation to rape — many rapes aren’t acknowledged as such by the victim, most acknowledged rapes aren’t reported, and most reported rapes don’t result in a conviction — so a particularly high proportion of rape complainants will not see the perpetrator convicted.
Throughout the criminal justice system, the proportion of offenders who end up convicted is tiny — higher than rape for some crimes, lower than rape for other crimes. Burglary has about the same attrition rate (from recorded crime to conviction). There is not good evidence that people are less likely to acknowledge or report rape than other crimes.
Myth Myth No. 2
Evidence from rape myth attitude surveys proves that people hold rape myths.
Current rape myth survey research tends to define rape myths as ethically wrong rather than factually false. What’s more, your view can be factually correct but still classed as ethically wrong and therefore a rape myth. So what these rape myth researchers are actually proving is that lots of people have views that are accurate but different from the researchers. We now have the oxymoronic ‘true myth’.
Next, rape myth researchers designed their questions to catch people, adjusting these questions until they managed to produce a bell curve. Bell curves have their uses, but they can’t be used to show that people have awful attitudes. This is just like making the driving test practically impossible to pass, then treating the resulting fail rate as evidence of appalling driving.
Myth Myth No. 3
People believe in ‘real rape’ – a very violent attack by an armed stranger on a woman who ends up physically injured.
What does this even mean? Does it mean that people believe ‘real rape’ is the only sort of rape, the most common sort of rape, or the most serious type of rape? The only strong evidence for any of these propositions is that ‘real rape’ is more likely to lead to a conviction at the end of a trial. But this doesn’t mean that jurors believe the ‘real rape’ myth — they might just find it easier to convict when the evidence doesn’t boil down to whose story they believe.
Myth Myth No. 4
People believe that women cry rape, but they don’t.
There isn’t good evidence that people are less believing of rape complainants than other complainants. Mumsnet’s recently launched rape awareness campaign is called simply ‘We Believe You’. There also isn’t good evidence as to the proportion of women who do cry rape. To achieve justice, it is important to be both sympathetic and questioning towards all complainants, including rape complainants.
Myth Myth No. 5
People believe that women show consent to sex through their behaviour, such as inviting a man back for coffee, but this isn’t the case.
It may be messy, but people do tend to show sexual consent with roundabout signs; there is no formula. If people tell the researchers that coffee is one of those signs then it probably is. Sometimes rape myth reformers’ real objection seems to be to a traditional construction of heterosexuality in which men pursue women. There are many good reasons to challenge this gendered binary, but it can’t be done by creating a code cracker for sexual consent. A different sexual vision needs to be argued for openly, not smuggled in as opposition to rape myths.
Myth Myth No. 6
Jurors scrutinise rape complainants’ behaviour: why she was there, what she was wearing, etc. This is wrong.
It’s not wrong: jurors have to work out if the woman was consenting. This can only be done by looking at her behaviour, and of course the defendant’s response to it.
Myth Myth No. 7
People blame rape victims, even when they believe them.
There isn’t good evidence that people blame rape victims more than other crime victims. Public opinion surveys such as the Amnesty survey ask people if they think rape victims are ‘responsible’ and then treat responsibility as equivalent to blame. It isn’t. In fact, there is evidence that people tend to blame rape victims less than other crime victims; witness the vitriol heaped on the McCanns.
Helen Reece joined LSE as a Reader in Law in September 2009. Her main teaching responsibilities and research interests lie in Family Law. She is the author of “Rape Myths: Is Elite Opinion Right and Popular Opinion Wrong?” (available to read for free for a limited time) in the Oxford Journal of Legal Studies.
The Oxford Journal of Legal Studies is published on behalf of the Faculty of Law in the University of Oxford. It is designed to encourage interest in all matters relating to law, with an emphasis on matters of theory and on broad issues arising from the relationship of law to other disciplines.