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Seeking Justice for Victim-Survivors: Unconventional Legal Responses to Rape

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Seeking Justice for Victim-Survivors: Unconventional Legal Responses to Rape Durham E-Theses Seeking Justice for Victim-survivors: Unconventional Legal Responses to Rape GODDEN, NICOLA,MAY How to cite: GODDEN, NICOLA,MAY (2013) Seeking Justice for Victim-survivors: Unconventional Legal Responses to Rape, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/6379/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 Abstract SEEKING JUSTICE FOR VICTIM-SURVIVORS: UNCONVENTIONAL LEGAL RESPONSES TO RAPE NICOLA GODDEN This thesis argues for legal responses to rape that better recognise and are more responsive to the diversity of harms that victim-survivors suffer. Securing justice for rape victim-survivors has been high on feminists’ agendas since the 1970s. Justice is typically assumed to equate to punishing the perpetrators of rape, and as the criminal justice system all too often fails to achieve this goal it is deemed to be unjust. However, some feminists are beginning to challenge this assumption, and to consider whether justice could be achieved through other methods. While some have begun to explore unconventional legal responses to rape, there has been little discussion of these responses and the meanings of justice for victim-survivors. As such, this thesis explores what constitutes justice from the perspective of victim-survivors, and, in light of this, evaluates the criminal justice system and the unconventional responses of restorative justice and tort law. It questions whether these unconventional responses can offer good means and ends to justice in themselves, and uses them as different perspectives from which to reconsider the criminal justice response to rape. To these ends, the thesis analyses a restorative justice conference which addressed sexual violence – adding to the little empirical research in this area – and explores the small body of case law in which victim-survivors have brought a civil claim in trespass to the person for rape, which has, thus far, been paid little academic attention. Suggestions are made as to how the criminal law, restorative justice and tort law could be improved to enhance justice for victim-survivors. It is argued that different legal responses should be increasingly utilised in addition, or as an alternative to, the criminal law, and that the criminal justice system should be more responsive to the diversity of harms of rape to secure justice for victim-survivors. 1 SEEKING JUSTICE FOR VICTIM-SURVIVORS: UNCONVENTIONAL LEGAL RESPONSES TO RAPE Nicola Godden PhD Thesis Durham Law School, Durham University 2012 2 TABLE OF CONTENTS Detailed Table of Contents 4 Table of Cases 11 Table of Statutes 14 Declaration 16 Statement of Copyright 17 Acknowledgements 18 Chapter 1 INTRODUCTION 19 Chapter 2 METHODOLOGY 31 Chapter 3 SEEKING JUSTICE: RAPE VICTIM-SURVIVORS’ PERSPECTIVES 53 Chapter 4 THE CRIMINAL JUSTICE RESPONSE TO RAPE: FAILING TO DO JUSTICE, HOWSOEVER MEASURED 90 Chapter 5 RESTORATIVE JUSTICE: POSSIBILITIES FOR REPAIRING THE HARMS OF RAPE 116 Chapter 6 RESTORATIVE JUSTICE AND RAPE: JUSTICE FOR VICTIM-SURVIVORS? 157 Chapter 7 TORT LAW AND RAPE: FROM COMPENSATING MEN’S INJURIES TO VALUING WOMEN’S SEXUAL AUTONOMY 196 Chapter 8 CLAIMS IN TORT FOR RAPE: JUSTICE FOR VICTIM-SURVIVORS? 228 Chapter 9 CONCLUSION 264 Appendix 1: Interview Invitation Letter 282 Appendix 2: Interview Schedule (Counsellor) 283 Bibliography 284 3 DETAILED TABLE OF CONTENTS TABLE OF CASES ..................................................................................................................... 11 TABLE OF STATUTES ............................................................................................................... 14 DECLARATION ........................................................................................................................ 16 STATEMENT OF COPYRIGHT .................................................................................................. 17 ACKNOWLEDGEMENTS .......................................................................................................... 18 Chapter 1 INTRODUCTION ..................................................................................................................... 19 1.1 RETHINKING WHAT JUSTICE MEANS FOR RAPE VICTIM-SURVIVORS .............................. 19 1.2 CHAPTER OUTLINES ......................................................................................................... 26 Chapter 2 METHODOLOGY ..................................................................................................................... 31 2.1 INTRODUCTION ................................................................................................................ 31 2.2 FEMINISM, METHOD AND LAW ....................................................................................... 32 2.3 DOCTRINAL RESEARCH ..................................................................................................... 36 2.4 SOCIO-LEGAL RESEARCH .................................................................................................. 40 2.5 SOCIAL SCIENCE RESEARCH METHODS ............................................................................ 43 2.5.1 An Overview of the Empirical Research .................................................................... 43 2.5.2 The Case Study Method ............................................................................................ 44 2.5.3 Interviews .................................................................................................................. 47 2.5.4 Ethics ......................................................................................................................... 49 2.5.5 Analysing and Presenting Data ................................................................................. 50 2.6 CONCLUSION .................................................................................................................... 52 Chapter 3 SEEKING JUSTICE: RAPE VICTIM-SURVIVORS’ PERSPECTIVES .............................................. 53 3.1 INTRODUCTION ................................................................................................................ 53 3.2 WHY NOT A THEORY OF IDEAL JUSTICE IN THE CONTEXT OF RAPE? .............................. 55 3.3 THE HARMS OF RAPE ....................................................................................................... 58 4 3.3.1 The ‘Core’ Harm of Rape ........................................................................................... 58 3.3.2 Consequential and Material Harms of Rape ............................................................. 61 3.3.3 Harmful Legal Responses to Rape ............................................................................. 62 3.3.4 Summary: The Harms of Rape .................................................................................. 63 3.4 LEGAL OUTCOMES AND JUSTICE ...................................................................................... 63 3.4.1 Punishment ............................................................................................................... 64 3.4.2 Reparation and Compensation ................................................................................. 68 3.4.2(a) Compensation from the Wrongdoer ................................................................ 69 3.4.2(b) Compensation from the State .......................................................................... 71 3.4.3 Apology ..................................................................................................................... 74 3.4.4 Summary: Legal Outcomes and Justice..................................................................... 77 3.5 INSTITUTIONAL PROCEDURES AND PROCESSES .............................................................. 77 3.5.1 The Implementation of Procedural Laws and Policies .............................................. 78 3.5.2 The Role and Treatment of Victim-survivors in Legal Processes .............................. 80 3.5.2(a) Choice, Control and Decision-Making .............................................................. 80 3.5.2(b) The Treatment of Victim-survivors in Legal Processes ..................................... 82 3.5.2(c) The Telling and Hearing of Victim-survivors’ Stories ........................................ 84 3.5.3 Summary: Institutional Processes and Procedures and Justice ................................ 87 3.6 CONCLUSION .................................................................................................................... 87 Chapter 4 THE CRIMINAL JUSTICE RESPONSE TO RAPE: FAILING TO DO JUSTICE, HOWSOEVER MEASURED ............................................................................................................................ 90 4.1 INTRODUCTION ...............................................................................................................
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