Matoesian uses the 1991 rape trial of William Kennedy Smith to provide an in-depth analysis of language use and its role in that specific trial as well as the law in general. Examining both defense and prosecutorial linguistic strategies, he shows how language practices shape--and are shaped by--culture and the law.

Since the enactment of the first Hong Kong bilingual ordinance in 1989, tremendous effort and resources have been put to translating English legal documents into Chinese. Long before the implementation of bilingual legislation, the provision of interpreting services has remained an entrenched practice in the courtrooms of Hong Kong. This study has adopted a corpora approach to re-examine what seems to be reasonable and routine practices of the bilingual, legal system, the impacts of bilingual legislation, translation, and interpretation on trial (...) proceedings. Results generated from the corpus show the problems of anglicized Chinese translation of the Sexual Offences Ordinance under the British Common Law system; and interpreters’ performance which is intricately bound by the discourse practices of the legal professionals as well as the ideology of the bilingual legal system in Hong Kong. (shrink)

Over the past 30 years, the Australian state of Victoria has made numerous reforms to a set of jury directions purporting to address concerns that rape trials do not adequately respond to the reality of sexual offending in the community. Building on work identifying the predominant narratives mobilised in rape trials, in this article we consider whether the way in which a jury consumes information during a trial explains why the jury directions, positioned and utilised as (...) they are, appear to have been inadequate to the task of enabling juries to re-imagine evidence through alternative narrative frameworks. (shrink)

This article examines the recent trial of ANC president Jacob Zuma, and how gender power was framed in respect to, and within, the politics of culture. The trial centred on allegations of rape by Zuma of an HIV positive woman many years his junior, who was also the daughter of a former anti-apartheid struggle comrade. All of these details were considered pertinent, not only to the legal debates about whether a crime had been committed, but also to the political (...) debates raging around the nation's key challenges of high rates of sexual violence and the 'denialist' state response to devastating levels of HIV infection. Many Zuma supporters saw the accusation of rape as politically motivated and as evidence of an anti-Zuma conspiracy. In visibly smaller numbers, women's rights groups were present on the streets as well, trying to draw attention to the general problem of the nation's extraordinarily high rates of sexual violence and the general failure of the justice system to address cases of rape. The article argues that the fervour surrounding this trial, the burning political question of women's status was continually cast as a private matter: debates about relations between men and women came to be focused on issues of propriety, behaviour and etiquette rather than on questions about rights and power. In short, the privatisation of gender was effected through the politics of culture. As culture is politicised as a legal and secular 'right', gender is de-politicised to become a normatively 'private' and 'customary' domain. This is not merely a South African dilemma, but a dilemma which is con-concomitant to the social conditions of modernity itself. (shrink)

This article engages with the vogue for predicting the effects of the Human Rights Act 1998 by focusing on the rape prosecution and trial. The specific interest is feminist scrutiny of the right to a fair trial, particularly the concept of ‘fairness’, in light of the increasing use of disclosure rules (in Canada and England) to gain access to medical and counseling records. Transcending the two contemporary narratives of ‘victims’/women’s rights and defendants’ rights in the criminal justice system, the (...) authors argue for the infusion of the legal debate on disclosure with feminist understandings of wider cultural debates. They suggest that an increased reflexivity about intimacy, publicity and power, leading perhaps to the development of a concept of ‘democratic publicity’ (Fraser, 1997, p. 100), might help to revision the meaning of ‘relevant’ evidence in the rape trial. They also suggest that the wide-ranging cultural debate about memory, truth and history, and the emerging commitment to experimentation in responding to massive, institutionalised human rights violations (including apartheid, war crimes and child abuse) might be of use in deepening current thinking about the rape trial and listening to the ‘voice’ of the complainant. (shrink)

The trial of Jean-Paul Akayesu is by far the most well known and widely discussed case at the International Criminal Tribunal for Rwanda, a distinction that can be attributed to the fact that it was groundbreaking for several reasons. However, with regard to the importance of this trial both as a precedent for subsequent ICTR cases and within the broader context of international jurisprudence, its most significant contribution has undoubtedly been the recognition and prosecution of rape as a means (...) of perpetrating genocide. The task of collecting admissible evidence to that end was heavily impacted by the necessity of interpreting and translating witness testimonies from their original language of expression, Kinyarwanda, into the working languages of the Tribunal, French and English. The multiple challenges associated with this translation process concerned not only questions of semantic equivalence of specific lexical terms. They also highlighted the considerable ‘cultural collision’ that occurred in the courtroom between the Rwandan witnesses and the international judiciary. This article elucidates the complex task faced by the courtroom interpreters in navigating these linguistic and sociocultural considerations underpinning the evocations of rape within the evidentiary framework of the Akayesu trial. (shrink)

This article examines the notion of gender neutrality in rape, its meaning and why rape definitions that include females and males as potential victims of rape have become influential in those jurisdictions that have engaged in significant levels of rape law reform over the last four decades. In so doing, several of Annabelle Mooney’s criticisms of gender neutral rape laws, published in an earlier article, will be critically examined. The second part of this article draws (...) on themes that have been identified in the linguistic analysis of rape trials involving female complainants and applies those themes to two cases of rape and sexual assault involving male complainants. Finally, this article examines whether the tactics used by defence lawyers during cross-examination can be said to be uniquely ‘gendered’ or whether similar tactics exist in cases of male rape and sexual assault. Explanations for possible similarities in treatment are also examined. (shrink)

This article argues that rape myths and domestic abuse myths constitute hermeneutical injustices. Drawing on empirical research, I show that the prevalence of these myths makes victims of rape and of domestic abuse less likely to apply those terms to their experiences. Using Sally Haslanger's distinction between manifest and operative concepts, I argue that in these cases, myths mean that victims hold a problematic operative concept, or working understanding, which prevents them from identifying their experience as one of (...) rape or of domestic abuse. Since victims in this situation lack the conceptual resources needed to render their experience sufficiently intelligible, they are suffering a form of hermeneutical injustice. Attending to this distinctive case sheds new light not only on the functioning of social myths of this kind but on the nature of hermeneutical injustice itself, since the case of the victim who accepts myths is importantly different from other cases of hermeneutical injustice discussed in the literature to date. In practical terms, this analysis supports calls for juries in rape trials to be warned about rape myths at the start of the trial, and may have implications for calls for statutory Sex and Relationships Education in schools. (shrink)

Metaphors are common in legal discourse because they reify abstract legal concepts. The game metaphor, sometimes used to characterise legal trials, tends to be associated with legal professionals’ work in court. This metaphor portrays a legal trial as a competitive, hostile and masculine process that excludes victims from participating in the trial. In this article, I analyse interviews with victims of rape who have had their case prosecuted in the courts in Norway. The victims use the game metaphor (...) to characterise both the trial and their participation in it. I investigate how the game metaphor adds meaning to rape victims’ understanding and experience of a legal trial and creates room for agency in relation to the prosecution of their rape case. (shrink)

International criminal tribunals established by the UN Security Council in the 1990s have been widely acclaimed as active participants in the modern system of dynamic criminal justice. One of their best known achievements is the prosecution of rape and sexual assaults. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) set an example for other tribunals to follow. By interpreting a variety of international laws, the community of international legal professionals has (...) been able to shift the prevailing understanding of rape and sexual violence away from that of an “unfortunate byproducts of war.” Not only has the epistemic community of legal professionals been able to end impunity for these crimes, but case-law of international tribunals has become a basis for subsequent trials at quasi-international tribunals. Decisions of the tribunals have been instrumental in drafting the Statute of the International Criminal Court and can be regarded as an example of the formation of new international norms by means of judicial decisions. (shrink)

Rape, traditionally a spoil of war, became a weapon of war in the ethnic cleansing campaign in Bosnia. The ICTY Kunarac court responded by transforming wartime rape from an ignored crime into a crime against humanity. In its judgment, the court argued that the rapists violated the Muslim women’s right to sexual self-determination. Announcing this right to sexual integrity, the court transformed women’s vulnerability from an invitation to abuse into a mark of human dignity. This close reading of (...) the trial, guided by the phenomenological themes of the lived body and ambiguity, feminist critiques of the autonomous subject and the liberal sexual/social contract, critical legal theory assessments of human rights law and institutions, and psychoanalytic analyses of the politics of desire, argues that the court, by validating women’s epistemic authority (their right to establish the meaning of their experience of rape) and affirming the dignity of the vulnerable body (thereby dethroning the autonomous body as the embodiment of dignity), shows us that human rights instruments can be used to combat the epidemic of wartime rape if they are read as de-legitimating the authority of the masculine autonomous subject and the gender codes it anchors. (shrink)

In this paper, I discuss rape myths and mythologies, their negative effects on rape and sexual assault complainants, and how they prejudicially construct women qua women. The backdrop for the analysis is the Belfast Rugby Rape Trial, which took place in 2018. Four men, two of whom were well-known rugby players, were acquitted of rape and sexual assault in a nine-week criminal trial that dominated local, national and international attention. The acquittal resulted in ‘I Believe Her’ (...) rallies and protests across Northern Ireland. Of concern were the deeply sexist and misogynistic text exchanges among the acquitted about the complainant and women more generally. One month after the trial, the Criminal Justice Board of Northern Ireland commissioned an independent review of the arrangements to deliver justice in cases of serious sexual offences. The Gillen Review proposed 16 key recommendations, among them measures to dispel rape myths and the role that Relationship and Sex Education in schools could play in combatting these myths. I will explore these issues using Miranda Fricker's construction of epistemic injustice. I argue that there is little appreciation of the profound impact that routine testimonial injustice—where the credibility of a speaker is deflated or undermined on account of her social identity—can have on the wellbeing of speakers and how it ramifies with other forms of injustice. To illustrate, I draw on neurological explanations to show why attributions of sexual consent are unjustly sustained in cases of rape and sexual assault. (shrink)

This article proposes that feminist legal critics need to be able to explain how some rape cases succeed in securing convictions. The means by which rape cases are routinely disqualified in the criminal justice system have received widespread attention. It is well established in feminist legal critique that female complainants are discredited if they fail to conform to an archaic stereotype of the genuine or ‘real’ rape victim. This victim is not only morally and sexually virtuous she (...) is also cautious, unprovocative, and consistent. Defence tactics for discrediting rape testimony involve exposing the complainant's alleged failure to comply with the sexual and behavioural standards of the normative victim.This understanding of how rape complain(an)ts are disqualified is not predictive, however, of the complainants whose cases succeed in securing convictions. This article reviews some successful Australian rape cases and considers the ways in which they disturb feminist understandings of how rape complaints are discredited in the criminal justice system. It proposes that recent research analysing the discourse of rape trials provides a way of explaining the apparent discrepancies between the ‘ideal’ rape victim and successful complainants. (shrink)

This article places Foucault 's 1977 suggestions regarding the reform of French rape law in the context of ongoing feminist debates as to whether rape should be considered a sex crime or a species of assault. When viewed as a disciplinary matrix with both physical and discursive effects, rape and the rape trial clearly contribute to the "hysterization" of women by cultivating complainants' confessions in order to demonstrate their supposed lack of self-knowledge.

This article places Foucault's 1977 suggestions regarding the reform of French rape law in the context of ongoing feminist debates as to whether rape should be considered a sex crime or a species of assault. When viewed as a disciplinary matrix with both physical and discursive effects, rape and the rape trial clearly contribute to the “hysterization” of women by cultivating complainants' confessions in order to demonstrate their supposed lack of self-knowledge.

Historically, numbers of women complainants in rape trials have been regarded suspiciously, or prejudiced in that their credibility has been seriously called into question, or undermined, both from within and outside the courtroom. Arguably, public and legal perceptions as to the expected conduct and behaviour of the stereotypical rape victim have been grounded in the belief that genuine women who allege rape should act and portray themselves as unequivocal victims. This suggests that the contemporary construct of (...) the female rape victim and her associated stereotypical image should be considered not solely as a legal derivative but also within a wider cultural context. This article explores the historical influences that shaped the cultural construct operating in the U.K., in particular, the societal and legal attitudes of the mid-Victorians towards women and sexual violence, creating an historical mystification around the construct of the female rape victim and the crime of rape itself. Reference is made to a number of cases reported in The Times newspaper between 1850–1885 which underline the requisite portrayal of the rape complainant as an unequivocal victim. It is argued that the relocation of this historical and socially constructed mythological imaginary within the context of the law and the trial process has disproportionately contributed to the modern scepticism which surrounds the female complainant. (shrink)

Content note: This paper discusses rape throughout.Abstract. In this paper, I consider arguments in favor of jury trials. While I find these generally persuasive, I argue that there can be cases where juries are not fit for purpose. In those cases, I argue that they should be replaced by judge-only trials. In doing so, I propose a framework for determining whether a type of case is unsuitable for jury trials. Partly in response to low conviction rates, (...) there have been recent suggestions that rape trials should be conducted without juries. I suggest that there is strong evidence that these offences qualify under the criteria I have described. As a result, I argue that judge-only trials should be adopted for trying rape cases. (shrink)

This note analyses a recent case of the European Court of Justice in which the applicant, a 14-year old rape victim, alleged that Bulgarian criminal law violated her rights under Articles 3 and 8 of the European Convention of Human Rights in pursuing a practice of only prosecuting rape where there was evidence of the use of physical force and active resistance. In upholding the applicant’s claims, the Court re-affirmed the positive obligation on states to adopt measures to (...) ensure that fundamental rights under the Convention were secured. In particular, in the case of rape, this required the enactment and application of criminal laws effectively prescribing all acts of non-consensual sex and not just those involving physical violence. In this way the Court affirmed not only that rape was, in essence, a violation of personal sexual autonomy but also that legal systems which failed adequately to protect against all forms of rape risked operating in breach of Convention obligations. (shrink)

This article draws on the qualitative research component of a mixed-methods project exploring the Australian news media’s representation of violence against women. This critical discourse analysis is on print and online news reporting of the case of ‘Kings Cross Nightclub Rapist Luke Lazarus’, who in March 2015 was tried and convicted of raping a female club-goer in a laneway behind his father’s nightclub in Sydney, Australia. We explore the journalism discursive practices employed in the production of the news reports about (...) the Lazarus trial. Our analysis shows how some lexical features, quoting strategies and structuring elements serve to minimise the victim’s experience while emphasising the adverse effects of the trial on the accused. Furthermore, we demonstrate how such practices allow for the graphic representation of the attack in a salacious manner while minimising the impact of the crime on the victim by selectively referencing her victim impact statement. We found some differences between print and online news stories about this case, some of which may be attributable to the greater space available to the telling of news stories online. We conclude that in news reporting of the Lazarus case, routine journalism discursive practices, such as the inverted pyramid news-writing structure and decisions about who and what to quote, serve simultaneously to diminish the victim’s experience while objectifying her. These results build on international findings about media reporting practices in relation to violence against women and add substantially to what we know about these practices in Australia. (shrink)

Following the highly publicized New Bedford rape case, in which a young woman was raped by several men on a pool table in New Bedford, Massachusetts, on March 6, 1983, a segment of the local Portuguese community responded with great hostility to the rape victim and with sympathy for the rapists. The victim was blamed for the ethnic prejudice that erupted after the rape and culminated in the trial of six rapists in 1984. This article's purpose is (...) to analyze the Portuguese community's response, particularly the negative reactions of Portuguese women to another Portuguese woman who had been raped, and the conflict that developed between ethnic and sexual forms of prejudice. (shrink)

During the highly publicized appeals trial of Mike Tyson, Black feminists launched an antirape campaign that included obtaining signatures in support of a full-page ad while simultaneously educating the Black community about racist and sexist rape myths. Organizers challenged rape-supportive discourse using a distinct Black feminist frame that was influenced by structural as well as culturally engendered factors. Relevant frame alignment processes and the significance of racialized, gendered, and class-based micromobilization strategies are described. A coalition-focused view of the (...) framing process is presented, and its usefulness in Black feminist collective action is underscored. (shrink)

Sexual assault leaves the victims with unbearable emotional pain from the experience. The unwanted aggression against their freewill causes them to suffer physically and mentally. On top of that, they also have to fight to be treated fairly and respectfully during their court trials. There has been some controversy regarding rape prosecution in the Islamic legal system. The reason for this controversy is that the rape victim would usually be either charged with zina because of her confession, (...) or committing qadhf, as a result of her failure to provide four male eyewitnesses. This paper aims at investigating the fundamental legal rights of rape victims who complain of being raped, to be defended fairly, and to get exemption from punishment as provided in Islamic law. This paper also seeks to investigate the admissibility of the individual testimony of the victim against the rapist. This paper suggests that proving rape is not similar to proving zina, because a rape victim who lodges a report or complains of her ordeal of being raped should not be treated the same as a person who confesses to zina. Proving rape is also different from accusing the rapist with committing zina. This study will explore opinions and arguments of classical Muslim scholars of Islamic jurisprudence from various schools of thought. (shrink)

One of the most ingenious arguments in all of Attic oratory is to be found in the speech Lysias wrote for Euphiletus to deliver at his trial for the murder of Eratosthenes . In his speech Euphiletus first describes to the court how his wife was seduced by Eratosthenes, then recounts how he discovered the affair, caught the adulterer in the act, and, despite an offer to pay compensation, slew him. Euphiletus defends his action by citing the law of the (...) Areopagus that whoever kills an adulterer caught in flagranti with his wife cannot be convicted of murder. Euphiletus further points out that the same exemption applies to the man who catches someone seducing his pallakē. If the lawgiver regarded the seduction of a pallakē as so serious that it merited the death penalty, Euphiletus argues, he must have regarded the seduction of a wife as even more reprehensible, deserving a penalty worse than death. (shrink)

What remains anti-democratic in our criminal justice systems, and where does it come from? Geoffroy de Lagasnerie spent years sitting in on trials, watching as individuals were judged and sentenced for armed robbery, assault, rape, and murder. His experience led to this original reflection on the penal state, power, and violence that identifies a paradox in the way justice is exercised in liberal democracies. In order to pronounce a judgment, a trial must construct an individualizing story of actors (...) and their acts; but in order to punish, each act between individuals must be transformed into an aggression against society as a whole, against the state itself. The law is often presented as the reign of reason over passion. Instead, it leads to trauma, dispossession, and violence. Only by overturning our inherited legal fictions can we envision forms of truer justice. Combining narratives of real trials with theoretical analysis, Judge and Punish shows that juridical institutions are not merely a response to crime. The state claims to guarantee our security, yet from our birth, we also belong to it. The criminal trial, a magnifying mirror, reveals our true condition as political subjects. (shrink)

Those who commit sexual assault are rarely brought to justice: for every 1000 rapes, only seven will result in a felony conviction. There are numerous factors that contribute to the fact that sexual assault goes largely unpunished, and legal reform alone is not a sufficient solution—but it is an important part of the solution. In this paper, I develop an account of the epistemic injustice that rape victims face in criminal trials, and I argue that this, at least (...) in part, helps to explain not only why conviction rates are so low, but why previous feminist legal reform has not helped to improve conviction rates. I then argue that more radical legal reform is necessary, and that we ought to consider lowering the standard of evidence in sexual assault cases. (shrink)

In H.M. Advocate v. Grimmond1 the judge in a Scottish High Court trial refused permission for expert psychological evidence to be admitted on behalf of the Crown in a prosecution involving sexual offences against two children. The Crown had sought to lead an expert witness to explain to the jury about patterns of disclosure in child sexual abuse cases. The case was remarkable, not so much for the strict application of the longstanding rule in R. v. Turner that constrains the (...) use in the courtroom of expert evidence from the behavioural sciences, but for the way in which the arguments presented by the Crown in Grimmond resonate with enduring feminist critiques regarding the treatment of women in rape trials. The theoretical issues raised by the decision include the quest for context to counter rigid evidential frameworks, and the choice of a child sexual abuse case as the medium for challenging the boundaries of the admissibility of expert evidence in the courtroom. The ramifications of Grimmond are tangible as legislation intended to benefit children and women has already been enacted by the Scottish Parliament to ameliorate the effects of the decision. This article suggests that while this legislation should be given a cautious welcome it remains to be seen whether the heralded benefits will actually materialise. (shrink)

ABSTRACTAnxious individuals report disproportionately negative expectations concerning the future, termed the negative expectancy bias. In contrast, ageing is associated with an inflated expectancy for positive future events. A recent study [Steinman, S. A., Smyth, F. L., Bucks, R. S., MacLeod, C., & Teachman, B. A.. Anxiety-linked expectancy bias across the adult lifespan. Cognition and Emotion, 27, 345–355. doi:10.1080/02699931.2012.711743] found using an interpretation bias task, a negative expectancy bias in young adults and positive expectancy bias in older adults with high trait (...) anxiety. Extending this, the current study examined expectancy bias for positive, negative and ambiguously emotionally toned information in younger and older adults with clinical levels of depression and anxiety to community control groups, thus allowing examination of both disorder status and age on biases. Clinical participants reported a pervasive tendency to expect negative events relative to positive regardless o... (shrink)

There is limited knowledge about sleep in adolescents with elevated levels of anxiety treated within primary health care settings, potentially resulting in sleep problems not being sufficiently addressed by primary health care workers. In the current study self-reported anxiety, insomnia, sleep onset latency, sleep duration, and depressive symptoms were assessed in 313 adolescents referred to treatment for anxiety within primary health care. Results showed that 38.1% of the adolescents met criteria for insomnia, 34.8% reported short sleep duration, and 83.1% reported (...) long sleep onset latency. Total anxiety symptoms were related to all sleep variables after controlling for age and sex. Furthermore, all anxiety symptom sub-types were associated with insomnia and sleep onset latency, whereas most anxiety subtypes were associated with sleep duration. Adolescents’ depressive symptoms accounted for most of the anxiety-sleep associations, emphasizing the importance of depressive symptoms for sleep. However, anxiety was associated with insomnia and sleep onset latency also among youth with low levels of depressive symptoms. The findings suggests that primary health care workers should assess sleep duration, sleep onset latency, and insomnia in help-seeking adolescents with anxiety. (shrink)

Research ethics committees (RECs) evaluate whether the risk-benefit ratio of a study is acceptable. Decentralized clinical trials (DCTs) are a novel approach for conducting clinical trials that potentially bring important benefits for research, including several collateral benefits. The position of collateral benefits in risk-benefit assessments is currently unclear. DCTs raise therefore questions about how these benefits should be assessed. This paper aims to reconsider the different types of research benefits, and their position in risk-benefit assessments. We first propose (...) a categorization of research benefits, based on the types of benefits that can be distinguished from the literature and ethical guidelines. Secondly, we will reconsider the position of collateral benefits. We argue that these benefits are not fundamentally different from other benefits of research and can therefore be included in risk-benefit assessments of DCTs. (shrink)

In an adversarial common law courtroom, where one party tries to defeat the other by using words as weapons, polysemous words more often than not pose a problem to the court interpreter. Unlike in dyadic communication, where ambiguity can be easily clarified with the speaker by the hearer, court interpreters’ freedom to clarify with speakers is to a large extent restricted by their code of ethics. Interpreters therefore can only rely on the context for disambiguating polysemous words. This study illustrates (...) the problem of polysemy in an interpreter-mediated rape trial. It exemplifies how the interpreter’s goal to avoid contradictions by making her interpretation of a polysemous word consistent with the preceding context runs counter to that of the bilingual cross-examiner, whose primary goal is to identify inconsistencies in the hostile witness’s testimony in order to discredit him. This study also manifests a denial of the interpreter’s latitude in the interpretation of contextual clues and her loss of power in a courtroom with the presence of other bilinguals. (shrink)

This paper analyses the discourse surrounding a high-profile sexual assault case in South Korea. While most research on language and sexual violence has focused on the media portrayal or online resistance movement, not much has focused on the language and the law. Using Critical Discourse Analysis and rhetoric, this present paper seeks to show the importance of value of paying closer attention to legal decision-making process, showing how this can make a significant contribution to the literature. The analysis reveals two (...) distinctive discourses at work. One is that victims must embody and display certain characteristics as a ‘pure and destroyed’ individual in order to avoid being dismissed or appearing untrustworthy. The second is that the perpetrators represent themselves as victims seeking to makes it the goal of the court to protect the perpetrators’ rights, rather than those of the victims. (shrink)

This essay introduces the ‘she said, he said’ paradox for Title IX investigations. ‘She said, he said’ cases are accusations of rape, followed by denials, with no further significant case-specific evidence available to the evaluator. In such cases, usually the accusation is true. Title IX investigations adjudicate sexual misconduct accusations in US educational institutions; I address whether they should be governed by the ‘preponderance of the evidence’ standard of proof or the higher ‘clear and convincing evidence’ standard. -/- Orthodoxy (...) holds that the ‘preponderance’ standard is satisfied if the evidence adduced renders the litigated claim more likely than not. On this view, I argue, ‘she said, he said’ cases satisfy the ‘preponderance’ standard. But this consequence conflicts with plausible liberal and feminist claims. In this essay I contrast the ‘she said, he said’ paradox with legal epistemology’s proof paradox. I explain how both paradoxes arise from the distinction between individualised and non-individualised evidence, and I critically evaluate responses to the ‘she said, he said’ paradox. (shrink)

Dehumanisation is a puzzling phenomenon. Nazi propaganda likened the Jews to rats, but also portrayed them as ‘poisoners of culture’. In the Soviet Union, the Stalinist regime called opponents vermin, yet put them on show trials. During the Rwandan genocide, the Hutus identified the Tutsis with cockroaches, but nonetheless raped Tutsi women. These examples reveal tensions in the way in which dehumanisers perceive, portray and treat victims. Dehumanisation seems to require that perpetrators both deny and acknowledge the humanity of (...) their victims in certain ways. Several scholars have proposed solutions to this so-called ‘paradox of dehumanisation’ that question the usefulness of dehumanisation as a concept to explain genocidal violence, claim that dehumanisation is characterised by an unstable belief in the non-human essence of the dehumanised, or contend that dehumanisation revolves around a denial of metaphysical human status. The main aim of this article is to present a novel framework for theorising dehumanisation that offers a more straightforward solution to this paradox based on the idea that perpetrators deny their victims’ human standing in a moral sense without necessarily negating their biological human status or human subjectivity. The article illustrates this framework through examples drawn from Primo Levi’s memoirs of Auschwitz. (shrink)

Consider a terrible situation that too many women find themselves in: 85,000 women are raped in England and Wales alone every year. Many of these women do not bring their cases to trial. There are multiple reasons that they might not want to testify in the courts. The incredibly low conviction rate is one. Another reason, however, might be that these women do not want the fact that they were raped to become the most salient thing about them. More specifically, (...) they do not want it to be the thing that others attend to the most—that others find most noticeable and memorable. In this paper, I introduce the notion of ‘harmful salience perspectives’ to help to explain this and related phenomena. This refers either to attention on things that should not be salient, or not enough attention on things that deserve to be made salient. Following ideas within the feminist literature on objectification, I argue that we can be harmed when aspects of our identity that do not reflect our personhood—our agency, rationality, personality, and so on—are more prominent in the minds of others than aspects that do reflect our personhood. Crucially, these ways of attending do not need to implicate false beliefs and harmful ideologies to be harmful, but can be harmful in their own right. (shrink)

Dehumanisation is a puzzling phenomenon. Nazi propaganda likened the Jews to rats, but also portrayed them as ‘poisoners of culture’. In the Soviet Union, the Stalinist regime called opponents vermin, yet put them on show trials. During the Rwandan genocide, the Hutus identified the Tutsis with cockroaches, but nonetheless raped Tutsi women. These examples reveal tensions in the way in which dehumanisers perceive, portray and treat victims. Dehumanisation seems to require that perpetrators both deny and acknowledge the humanity of (...) their victims in certain ways. Several scholars have proposed solutions to this so-called ‘paradox of dehumanisation’ that question the usefulness of dehumanisation as a concept to explain genocidal violence, claim that dehumanisation is characterised by an unstable belief in the non-human essence of the dehumanised, or contend that dehumanisation revolves around a denial of metaphysical human status. The main aim of this article is to present a novel framework for theorising dehumanisation that offers a more straightforward solution to this paradox based on the idea that perpetrators deny their victims’ human standing in a moral sense without necessarily negating their biological human status or human subjectivity. The article illustrates this framework through examples drawn from Primo Levi’s memoirs of Auschwitz. (shrink)

When Cool finally realized that false memories had been planted, she sued the psychiatrist for malpractice. In March 1997, after five weeks of trial, her case was settled out of court for $2.4 million. Nadean Cool is not the only patient to develop false memories as a result of questionable therapy. In Missouri in 1992 a church counselor helped Beth Rutherford to remember during therapy that her father, a clergyman, had regularly raped her between the ages of seven and 14 (...) and that her mother sometimes helped him by holding her down. Under her therapist's guidance, Rutherford developed memories of her father twice impregnating her and forcing her to abort the fetus herself with a coat hanger.The father had to resign from his post as a clergyman when the allegations were made public. Later medical examination of the daughter revealed, however, that she was still a virgin at age 22 and had never been pregnant. The daughter sued the therapist and received a $1-million settlement in 1996. (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, rather than (...) simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)