InternatIonal approaches to rape edited by nicole Westmarland and Geetanjali Gangoli InternatIonal approaches to rape Edited by Nicole Westmarland and Geetanjali Gangoli First published in Great Britain in 2011 by The Policy Press University of Bristol Fourth Floor Beacon House Queen’s Road Bristol BS8 1QU UK t: +44 (0)117 331 4054 f: +44 (0)117 331 4093 [email protected] www.policypress.co.uk North American office: The Policy Press c/o International Specialized Books Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786, USA t: +1 503 287 3093 f: +1 503 280 8832 [email protected] © The Policy Press 2011 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested. The digital PDF version of this title is available Open Access and distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 license (http://creativecommons. org/licenses/cc-by-nc/4.0/) which permits adaptation, alteration, reproduction and distribution for non-commercial use, without further permission provided the original work is attributed. The derivative works do not need to be licensed on the same terms. ISBN 978 1 84742 620 8 hardcover The right of Nicole Westmarland and Geetanjali Gangoli to be identified as editors of this work has been asserted by them in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved: no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of The Policy Press. The statements and opinions contained within this publication are solely those of the editors and contributors and not of The University of Bristol or The Policy Press. The University of Bristol and The Policy Press disclaim responsibility for any injury to persons or property resulting from any material published in this publication. The Policy Press works to counter discrimination on grounds of gender, race, disability, age and sexuality. Cover design by Qube Design Associates, Bristol. Front cover: image kindly supplied by iStockphoto. Printed and bound in Great Britain by Berforts Group Ltd, Stevenage. The Policy Press uses environmentally responsible print partners We dedicate this book to our babies, all born during the editing of this book: Aman Frederick Gangoli-Rew, Rukhmini Lily Gangoli-Rew and Oscar Milo Westmarland-Morrison. We hope their generation will be a more peaceful one. contents Notes on contributors vi one Introduction: approaches to rape 1 Nicole Westmarland and Geetanjali Gangoli two Sexual assault law in Australia: contextual challenges 13 and changes Patricia Easteal three Ending rape: the responsibility of the Canadian state 35 Lee Lakeman four Introduction to the issue of rape in China as a developing 57 country Qihua Ye five Still little justice for rape victim survivors: the void between 79 policy and practice in England and Wales Nicole Westmarland six Controlling women’s sexuality: rape law in India 101 Geetanjali Gangoli seven Breaking the silence: rape law in Iran and controlling women’s sexuality Nadia Aghtaie eight Meeting the challenge? Responding to rape in Scotland 147 Sandy Brindley and Michele Burman nine Paradox and policy: addressing rape in post-apartheid 169 South Africa Lisa Vetten ten ‘Impressive progress alongside persistent problems’: 193 rape law, policy and practice in the United States Lynn Hecht Schafran and Jillian Weinberger Index 229 v International approaches to rape notes on contributors Nadia Aghtaie is an active member of the Violence Against Women Research Group and is currently finishing her PhD at the School for Policy Studies at the University of Bristol, UK. She is conducting comparative research on gender-based violence in Iran and the UK. Prior to this, she conducted empirical research and worked on the Criminal and Civil Codes of Iran in relation to domestic violence and the impact of misinterpretation of Shari’a law on women’s lives. She is interested in women’s rights globally and in Iran and Afghanistan in particular. She has presented her work at several international conferences. She lectures on childhood studies and social policy at the University of Bristol. Sandy Brindley is the National Coordinator for Rape Crisis Scotland. She holds an MPhil in women’s studies from the University of Glasgow. She has been involved in the Rape Crisis movement in Scotland for the past 15 years, at both a local and a national level. She has been involved in the advisory groups for a number of major legal reviews, including the Scottish Law Commission’s review of the law on sexual offences, and the Crown Office’s review of the investigation and prosecution of rape and other sexual offences. She was heavily involved in the development of Rape Crisis Scotland’s public awareness campaign, This is Not an Invitation to Rape Me. Michele Burman is Professor of Criminology at the University of Glasgow where she is also Co-Director of the Scottish Centre for Crime and Justice Research and Co-Convener of the International Centre for Gender and Women’s Studies. She holds a PhD from the University of Edinburgh on legal constructions of female sexuality in sexual offence trials. She has long-standing research interests in gender-based violence, female offenders, youth crime and youth violence, and gender crime and justice, particularly the criminal justice response to rape and sexual violence. Patricia Easteal is a socio-legal academic, author and advocate at the University of Canberra, Australia. She received a PhD in legal anthropology from the University of Pittsburgh. She investigates the substance and practice of the law; specifically, how criminal law, family law, discrimination law, employment law and immigration law are affected by cultural context. She has published 14 books and over 120 vi Notes on contributors academic journal articles and chapters with a primary focus on access to justice for women, particularly victims of domestic violence, sexual assault and discrimination. Geetanjali Gangoli works at the Centre for the Study of Gender and Violence, School for Policy Studies, University of Bristol, UK. She has previously taught at the University of Delhi, and has been a Sir Ratan Tata Visiting Fellow at the London School of Economics and Political Science and a research fellow at the International Centre for the Study of Violence, University of Sunderland. She has published in the areas of domestic violence and young people, prostitution and trafficking, feminisms and law, forced marriage, domestic violence, and perpetrators of domestic violence. She edits the journal Policy & Politics, published by The Policy Press. Lee Lakeman is a collective member at Vancouver Rape Relief and Women’s Shelter and is Regional Representative for the Canadian Association of Sexual Assault Centres. As author of Obsession with Intent: Male Violence Against Women, she documented front-line anti-rape work, including 100 cases of sexual assault. She has previously chaired Against Male Violence for the National Action Committee on the Status of Women, and the World March of Women, and is author of the alternate report on violence to the Convention for the Elimination of All Forms of Discrimination Against Women. In 2008, with her collective, she hosted Flesh Mapping: Vancouver Markets Pacific Women (an exploration of trafficking and prostitution in Vancouver and its effect on the women of the Pacific Rim) and Policing Violence Against Women (a feminist international gathering to advance civilian oversight of police). Lynn Hecht Schafran is an attorney based in the US and since l981 has been Director of the National Judicial Education Program to Promote Equality for Women and Men in the Courts, a project of Legal Momentum in cooperation with the National Association of Women Judges (www.legalmomentum.org/our-work/njep). She designs and presents programmes for national, state and federal judicial colleges and advises the state supreme court task forces on gender bias in the courts that emerged in response to these programmes. She is co-author of a two-day model judicial education curriculum, Understanding Sexual Violence: The Judicial Response to Stranger and Nonstranger Rape and Sexual Assault, used by judges and multidisciplinary audiences across the US, as well as a DVD version and an adaptation for prosecutors. vii International approaches to rape She is co-author of a web course/resource, Intimate Partner Sexual Abuse: Adjudicating this Hidden Dimension of Domestic Violence Cases (www.njep-ipsacourse.org). Lisa Vetten has worked in the field of violence against women since 1991 and is currently employed as a senior researcher and policy analyst by the Tshwaranang Legal Advocacy Centre in South Africa. She has also worked in an advisory capacity with a number of government departments around the development of policy and law in this area. On the basis of her research experience, she regularly testifies on behalf of both the prosecution and defence on different aspects of violence against women. Jillian Weinberger is a writer living in Brooklyn, New York. She has worked at the Russell Sage Foundation, a social science research institute, and the National Judicial Education Program to Promote Equality for Women and Men in the Courts at Legal Momentum. She is currently a contributing writer for the Ms. Magazine blog and the online journal Conducive Chronicle, among other publications. She holds a BA in American studies from Wesleyan University. Nicole Westmarland is a lecturer in criminal justice at Durham University, UK. She holds a MA in women’s studies and a PhD in social policy and social work from the University of York. She is a feminist academic activist, and is heavily involved in the Rape Crisis movement.