Rethinking Rape Law.

• Author: Zawati, Hilmi M.
• Position: Rethinking Rape Law: International and Comparative Perspectives

Clare McGlynn and Vanessa Munro, eds., Rethinking Rape Law: International and Comparative Perspectives (New York, NY: Routledge, 2010).

1. Introduction II. Theoretical Engagements and Concepts of the Crime of Rape III. International and Regional Perspectives IV. National Perspectives V. New Agendas and Directions VI. Discussion VII. Conclusion I. INTRODUCTION

   Since the first reports on gender-based crimes committed during the Yugoslav dissolution war of 1992-1995 and the Rwandan genocidal war between April and July 1994, I feminist legal scholars have produced hundreds of scholarly and journalistic works on rape and other forms of sexual violence committed either in peacetime (2) or in conflict situations. (3) This body of scholarly literature addresses the legal treatment of rape in the statutory laws of international criminal tribunals, in international and regional human rights treaties, and a wide range of different domestic penal laws. New to this literature is this thought-provoking work, Rethinking Rape Law: International and Comparative Perspectives, edited by Clare McGlynn, professor of law at Durham University, and Vanessa E. Munro, professor of socio-legal studies at the University of Nottingham. (4) The work under review started as a collection of papers submitted to an international conference marking the 10th anniversary of the landmark judgement of the International Criminal Tribunal for Rwanda (ICTR) in the case of Jean-Paul Akayesu, where he was convicted, inter alia, for rape as an act of genocide. (5) This milestone judgement constituted a triumph for feminist legal scholars and activists. (6) It was also a turning point for the international justice system, in general, and for the jurisprudence of the international criminal tribunals, in particular. (7)

   Acknowledging the lack of a clear central legal argument--due to the nature of the work as a collection of articles dealing with different topics-the editors maintain in their introduction that the aim of this work is to provide the reader with a cross-cultural perspective and a critical evaluation of the latest developments in rape laws embodied in the statutory laws of international, regional, and domestic judicial bodies. (8) Comprised of 22 concise chapters, the work is arranged thematically under four corresponding principal ideas: the theoretical complexities of responding to the wrongs of rape; the relationship between feminist activism and legal reform; the limits of law reform in bringing about social change; and finally, the secondary victimization of rape complainants during the criminal investigation and trial process. (9)

   In their introduction the editors provide a meticulous analysis of these themes and underline the need for progressive reform of rape law, including reconceptualizing and criminalizing rape in international and domestic laws. By examining feminists' debates and struggles at the national, regional, and international levels to protect victims and ensure their right to sexual and bodily integrity, they elucidate feminists' responses to the wrongs of rape, their struggle for legal reform within international and national legal systems, and the challenges that prevent law reform from bringing about real changes.

2. THEORETICAL ENGAGEMENTS AND CONCEPTS OF THE CRIME OF RAPE

   Vanessa Munro, and Jonathan Herring and Michelle Dempsey present the first two chapters of the collection under the above topic. From a theoretical standpoint, they discuss and evaluate the positions of leading legal scholars on consent as an element of the crime of rape within its jurisprudential and psycho-social contexts, whether in times of peace or during armed conflict. Munro's paper focuses on the criminalization of rape within international and domestic frameworks with reference to consent and coercion as the major elements of this crime. She draws from the case law of two international criminal judicial bodies, namely the ICTR (10) and the International Criminal Tribunal for the Former Yugoslavia (ICTY), (11) as well as from legal scholarship on the issue, particularly the works of Catharine MacKinnon. Munro discusses the definition of rape in the Akayesu Judgement of 2 September 1998, (12) exploring its impact on subsequent judgements of the above tribunals.

   After examining consent and coercion as elements of the crime of rape, Munro argues that there are a number of characteristics that distinguish cases of rape in times of peace from those that occur in wartime settings. She maintains that--in contrast to rape cases in domestic contexts--cases of sexual violence in the context of armed conflict prosecuted under international criminal law usually involve countless forms of wrongdoing, including physical violence, sexual torture, and sexual slavery. Furthermore, she asserts that an exclusive focus on coercion fails to ensure against the "secondary victimisation" that critics associate with the consent threshold, including minimising the extent of the victim's violation (13) and alienating her experiences from the legal process. (14) Munro concludes with an endorsement of George Fletcher's argument on the importance of consent and affirms that the symbolic and practical value of consent should not be dismissed in the context of sexual self-determination. (15)

   In their contribution, Jonathan Herring and Michelle Dempsey examine the criminal law's response to sexual penetration in terms of theoretical and practical implications. In addressing this topic, they make four claims: engaging in sexual penetration calls for justification; the penetrated person's consent does not fully justify sexual penetration; the penetrated person's consent plus other reasons can justify sexual penetration; and the acceptance or prohibition of sexual penetration depends on its justification in any social context. After elaborating upon these principles, the authors affirm that the feasibility of prohibiting sexual penetration under criminal laws can vary widely, depending on different societies and contexts.

3. INTERNATIONAL AND REGIONAL PERSPECTIVES

   The second theme of the reviewed work examines rape and other forms of sexual violence from a number of viewpoints. The first two chapters in this part, by Alison Cole and Doris Buss, respectively, scrutinize wartime rape and other gender-based crimes under the statutory laws and jurisprudence of the criminal tribunals and courts post-WWII. (16) By contrast, the last two chapters in this section, by Patricia Londono and Helene Combrinck, look at these crimes from the perspectives of the European Convention on Human Rights, on the one hand, and the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa, as well as two other gender-related protocols in the Great Lakes and Southern African sub-regions, on the other. Whereas Doris Buss provides a comprehensive overview of the work of the ICTR and the dilemma of prosecuting wartime rape under its basic laws and jurisprudence, (17) Karen Engle and Annelies Lottmann, in another contribution to this part of the book, look beyond the crime of rape to explore the effects of shame and stigmatization as ongoing repercussions of rape and barriers to justice from a socio-legal perspective. (18) They examine shame as something which cannot be prevented or avoided in the context of rape, and consider ways of diminishing its harm to a point that would allow victims to come forward and seek justice. (19) In a similar vein, Alice Edwards reviews a number of international human rights treaties with reference to rape and violence against women. She highlights the failure of these treaties to provide a definition for rape although it is explicitly listed in some instruments. (20)

4. NATIONAL PERSPECTIVES

   Moving from international to domestic criminal law, part three contains nine papers providing analysis of rape laws under several European, North American, Australian, and African criminal justice systems. Contributors examine rape laws in different judicial and socio-political systems, provide critical analyses of how those laws responded to sexual violence, and indicate various avenues for further development and future reform within divergent domestic legal systems.

   Covering an extensive range of socio-legal diversity, this part begins with a chapter by Clare McGlynn, investigating the feminist role in rape law reform in England and Wales over the past three decades. It examines three controversial aspects of law reform related to consent, namely: changes to the defence of belief in consent; strict liability in the case of child rape; and the challenges of intoxicated capacity and consent. (21) McGlynn emphasizes the role played by feminists to improve the high rate of attrition and low rate of conviction for the offence, while highlighting the experiences of victims and addressing their needs. (22) Similarly, Sharon Cowan reviews the newly enacted Sexual Offences (Scotland) Act 2009, arguing that the reform process was controlled by its remit, and consequently, the substantive reforms had a limited effect. After a short historical review of the common law of rape in Scotland, Cowan examines the Sexual Offences Act 2009 with respect to elements of rape, including the victim's consent and the perpetrator's actus reus and mens rea...