Sense and Sensibilities: A Feminist Critique of Legal Interventions against Sexual Violence

Abstract

Feminists have spent decades trying to reform laws and evidential procedures relating to sexual assault. Using the current Scottish context as a case study, I will argue that while efforts to reform the text of the substantive as well as evidential and procedural aspects of the law have been largely successful, in practice the impact of these reforms has not always been felt. Drawing on contemporary examples from Scotland, and setting these within the broader context of similar problems and arguments in other jurisdictions such as England and Wales, Australia and Canada, I will examine the ways in which the ‘laws on the books’ have not always translated smoothly through to ‘law in action’. The aim is to highlight an ongoing failure on the part of those charged with applying the law (judges, legal professionals, juries) to do so appropriately, raising the question of whether it makes sense for feminist scholars to try to engage with what seems like the entrenched ‘sensibilities’ of criminal law. It may well be that the contemporary battle ground is not over legal territory as such, but over whose voices are heard in public debates on sexual violence. Ultimately, I argue that our all too frequent failures to punish sexual violence in a meaningful way suggests that we need to think again about how we deal with issues of sexual violence in contemporary society.

What do we know about rape myths and juror decision making?

“…The researchers offer a number of possible explanations for the different findings in relation to the different types of rape myth. It may simply be that some beliefs—including those about injury and resistance—are so deeply entrenched that attempts to influence them through juror education will have limited effect (Cowan, 2019: 38; Temkin, 2011: 724). It may, however, be the case that the particular directions on lack of resistance utilised in the study were ineffective.…”

The Moorov doctrine and coercive control: Proving a ‘course of behaviour’ under s. 1 of the Domestic Abuse (Scotland) Act 2018

“…While proper judicial training and jury directions on domestic abuse/coercive control are necessary, and are likely to have value both in terms of ensuring that Moorov meets its full potential in this context and more generally, it is important to be realistic about the extent to which either can transform deeply engrained attitudes. As Cowan recently emphasised in her analysis of the gap between the ‘law on the books’ and ‘law in action’ in Scottish legal responses to sexual violence, the introduction of jury directions, although helpful, ‘is not sufficient to shift tenacious stereotypes’ (Cowan, 2019: 38). As discussed earlier in this article, gendered stereotypes infiltrate many individuals’ understanding of domestic abuse and may make it more difficult for judges and jurors both to see particular behaviour as harmful and to see similarities or connections between different incidents.…”

“…Although focused on Scots law, this article contributes to an emerging global conversation about the complexities of evidencing coercive and controlling behaviours and engages with a range of issues that are of more general and international interest, including: the relationship between corroboration requirements and domestic abuse/sexual offending, the fluidity and indeterminacy of the concept of similarity, and the respective roles of judge and jury in assessing the sufficiency of evidence. It also contributes to the vast literature on the inherent limitations of both legislative and criminal justice responses to gender-based violence (for a recent example see, e.g., Cowan, 2019). Moreover, through offering the first comprehensive analysis of the specific evidential difficulties involved with proving the new Scottish offence, the article illustrates that the precise evidential challenges of proving distinct offences of domestic abuse or coercive control will vary from jurisdiction to jurisdiction.…”