Prosecuting and Defending Rape: Perspectives From the Bar

Temkin, Jennifer

doi:10.1111/1467-6478.00152

Cited by 82 publications

(64 citation statements)

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“…In the context of rape, such convictions are known as 'real rape' stereotypes or 'rape myths' (Brownmiller 1975, Bumiller 1990, Burt and Hendrick 1980, Estrich 1987. The aforementioned stereotypes are found to influence how courts perceive allegations of violence, both with regards to conviction rates and grading of sentences with regards to gender and sexuality (Bumiller 2008, Ehrlich 2001, Lees 2002, Razack 1998, Temkin 2000, Temkin, Gray, and Barrett 2016.…”

Section: Legal Processing Of Rapementioning

confidence: 99%

The legal grading of sexual citizenship: sentencing practices in Norwegian rape cases

Bitsch

Klemetsen

2017

Gender, Place & Culture

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This article maps and discusses the legal processing of rape cases in Norwegian appellate courts. Drawing on data from a multivariate regression analysis and a qualitative frame analysis, we examine the significance of space, accuser-convict prior relationship, the social context, accuser-convict marital relationship status, and convict racial background for grading of sentences in rape cases. The dataset consists of 176 rape cases that were processed in 2011 and 2012. Excluding acquittals and controlling for the application of relevant legal provisions (i.e. §), we find that sentences are reduced by 30 percent if the rape occurs in a private space as opposed to a public space. If the rape occurs at a party or is committed by a perpetrator who is a member of a racial majority, we find that sentences are reduced by 20 percent. A prior relationship between the victim and the perpetrator 3 reduces sentencing by 18 percent. Results regarding victims of marital rape are inconclusive. The study concludes that sentencing is stratified according to the public/private divide, prior relationship, social context and race. Despite progress made on behalf of victims of domestic violence and a gradual implementation of stricter sentencing in line with legislative intentions, the legal processing of rape cases is permeated by race and gender discrimination.

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Section: Legal Processing Of Rapementioning

confidence: 99%

The legal grading of sexual citizenship: sentencing practices in Norwegian rape cases

Bitsch

Klemetsen

2017

Gender, Place & Culture

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“…This research is unable to gauge the extent to which prospective lawyers are susceptible to the influence of rape stereotypes on their judgments about rape cases. Few studies have examined the responses of professionals dealing with rape victims, particularly members of the police force and the judiciary (e.g., Stewart et al, 1996;Temkin, 2000;Ward, 1995). The present research was designed to address this issue by exploring the extent to which prospective lawyers are influenced by stereotypic views about rape in their assessment of specific rape cases.…”

Section: Prospective Lawyers' Rape Stereotypes and Schematic Decisionmentioning

confidence: 99%

Prospective lawyers’ rape stereotypes and schematic decision making about rape cases

Krahé

Temkin

Bieneck

et al. 2008

Psychology, Crime & Law

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This is the unspecified version of the paper.This version of the publication may differ from the final published version. Germany. In Study 1, 451 undergraduate law students rated rape scenarios varying with respect to defendant-complainant relationship and coercive strategy (force versus exploitation of the complainant's alcohol-induced defenselessness). Acceptance of rape myths was also measured. Permanent repository linkLikelihood of defendant liability was rated to be lower when there was a prior relationship between the parties and when the defendant exploited the complainant's defenselessness as compared to when he used force (except in the ex-partner rapes where blame was higher in the alcohol-related than in the force-related cases). Complainant blame was higher when there was a prior relationship between the parties and was higher in the alcohol-related cases than in the force-related cases, except in the ex-partner rape where the pattern was reversed. Participants with high rape myth acceptance held the defendant less liable and blamed the complainant more, especially when the two had known each other. Study 2 largely replicated these findings with 129 postgraduate trainee lawyers and showed that sentencing recommendations also varied as a function of defendant-complainant relationship and coercive strategy. Providing participants with the legal definition of rape did not reduce reliance on rape-stereotypes. there is a consensus among practitioners and researchers that stereotypical conceptions of rape shared by the public and members of the criminal justice system play an important role in this problem (Temkin & Krahé, 2008). These include the belief that women often precipitate rape through their own behavior or appearance and that accusations of rape made against a former sexual partner are likely to be fabricated (see Temkin & Krahé, 2008, Chapter 2, for a review).Despite the fact that legal decision-making is normatively defined as data-driven, i.e.relying exclusively on the facts and the evidence, there is plenty of scope for schematic conceptions about rape rooted in rape myths to infiltrate. In common law systems, a familiar strategy adopted by the defence at trial is to seek to undermine the complainant's credibility in the eyes of the jury by casting doubt on her truthfulness and reputation, e.g., by questions about Prospective Lawyers' Rape Stereotypes 4 her lifestyle and sexual conduct. This strategy is rooted in widely shared beliefs that "real rape"is an attack by a stranger on an unsuspecting victim who is overcome by force (Stewart, Dobbin, & Gatowski, 1996), and also in gender stereotypes delineating what is fit and proper behavior for women (Krahé, 1988). If such stereotypic beliefs are endorsed by legal professionals, this may assist in undermining the position of the victim in the criminal justice system and may be a causal factor underlying the high attrition rates in rape cases (Brown, Hamilton, & O'Neill, 2007). Lawyers' rape-related stereotypes also matter in countries that do n...

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“…Adversarial legal system has been specially criticized for being responsible for secondary victimization (Temkin, 2000) and for failing punishing offenders (Lees, 1996(Lees, , 1997Ellison, 1997). Still, attrition rates show that the inquisitorial system fails victims too (Lovett and Kelly, 2009;Santos et al, 2009).…”

Section: Methodsmentioning

confidence: 99%

“…Feminist scholarship debunked the myth of the "rape by a stranger in a solitary alley" (Burt, 1980;Warshaw, 1988), opposed to marital rape exemption (Russel, 1982;West, 1990), uncovered the intersection of rape with racism (Wriggins, 1983;Harris, 1990), exposed rape culture (Sanday, 2004) and denounced victim blaming attitudes in judicial inquiries and court audiences (Estrich, 1987;Kennedy, 1993;Koss, 2000;Temkin, 2000;Jordan, 2004;Temkin and Krahé, 2008;Randall, 2010;Hohl and Stanko, 2015). All these analytical dimensions revealed a biased judicial system against women.…”

mentioning

confidence: 99%

“They never talk about a victim’s feelings: according to criminal law, feelings are not facts”—Portuguese judicial narratives about sex crimes

Ventura

2016

Palgrave Commun

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Sexual violence is a central dimension of what is generally called violence against women. Historically, the law has been one of the structures that has reinforced gender inequality and legitimized male seizure of women's sexuality within and outside marriage: legally, married women had no right to sexual freedom regarding their husbands and, at the same time, non-wed women who pressed charges against white men were accused of lying and faced victim-blaming judicial practices. Since the beginning of the 1990s, Portuguese rape legislation has changed in order to recognize that sex crimes offend someone's right to sexual self-determination. The Criminal Code has abandoned expressions like modesty and decency when referring to sex crimes, and a controversial mitigating penalty norm based on a victim's provocative behaviour or on the relation between the accused and the plaintiff was repealed in 1995. In addition, criminal law has evolved to a gender-neutral formulation and expanded the definition of rape adopting the "all penetration" formula. Nevertheless, the discourses of Portuguese jurisprudence and doctrine reveal stereotyped images about rape victims' behaviour and biased evaluations against women. Therefore, the 'law in books' must be analysed in its relation with 'law in action', which is unescapably influenced by doctrine and by magistrates' individual beliefs. This paper aims to capture judicial representations of rape, rape victims and offenders. Qualitative data are used based on 20 semi-structured interviews with 18 judges and prosecutors and two attorneys. The interviews were analysed through critical discourse analysis using a feminist approach. This article is published as part of a collection on gender studies.

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Prosecuting and Defending Rape: Perspectives From the Bar

Cited by 82 publications

References 1 publication

The legal grading of sexual citizenship: sentencing practices in Norwegian rape cases

The legal grading of sexual citizenship: sentencing practices in Norwegian rape cases

Prospective lawyers’ rape stereotypes and schematic decision making about rape cases

“They never talk about a victim’s feelings: according to criminal law, feelings are not facts”—Portuguese judicial narratives about sex crimes

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