Open Access: This paper will connect literature on epistemic injustice with literature on victims and perpetrators, to argue that in addition to considering the credibility deficit suffered by many victims, we should also consider the credibility excess accorded to many perpetrators. Epistemic injustice, as discussed by Miranda Fricker, considers ways in which someone might be wronged in their capacity as a knower. Testimonial injustice occurs when there is a credibility deficit as a result of identity-prejudicial stereotypes. However, criticisms of Fricker (...) have pointed out that credibility is part of a more complex system that includes both deficits and excesses. I will use these points to argue that we should look closer at sources of credibility excess in cases of sexual assault. This means that in addition to considering sources of victim blaming by looking at ways in which “ideal” victims are constructed, we also need to consider ways in which “ideal” perpetrators are constructed. (shrink)

Judicial bias in sexual assault cases is generally associated with the conduct of sitting judges who engage in victim blaming and reserve the full protection of the law to ideal victims. However, this paper seeks to examine the role of the Canadian Judicial Council (CJC) in perpetuating sexist stereotypes in the legal realm. It does so by juxtaposing the CJC’s handling of two judicial misconduct complaints, one in which a male judge exhibited bias against women while adjudicating a sexual assault (...) trial and a second in which graphic, sexual pictures of a female judge were posted on the internet without her knowledge or consent. The proposition offered is that the CJC’s gendered record in disposing of the two judicial misconduct cases was similarly informed by the notional ideal victim, further perpetuating sexism both in Canadian courtrooms and among the judiciary. (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)

This article charts a genealogy of marital rape law reform in South Australia in the 1970s, arguing that the new laws were based on constructing the marital rapist as a certain kind of man. South Australia is a significant case study, as it was one of the first Western jurisdictions to attempt to criminalise marital rape. Despite South Australia’s generally progressive politics, the legislation was highly contested, and resulted, in the end, only in a partial criminalization. To overcome the strident (...) opposition to rape law reform, we show that supporters explicitly developed a discourse focusing on concepts of sexual normativity and deviance. The marital rapist, it was argued, had deviated from patriarchal standards of masculine decency: this, not the rape itself, was crucial to determining whether his conduct was unlawful. (shrink)

Rape conviction rates have fallen to all-time lows in recent years, prompting governments to explore a range of strategies to improve them. This paper argues that, while the current legal impunity for rape cannot be condoned, increasing conviction rates is not in itself a valid objective of law reform. The paper problematises the measure of rape law that conviction rates provide by developing an account of (some) feminist aims for rape law reform. Three feminist aims and associated measures are explained—all (...) of which look beyond conviction rates to qualitative and victim-centred outcomes of criminal justice processes. Applying these measures, I argue that strategies designed solely to increase conviction rates are more likely to work against, rather than in support of, feminist aims. The paper thus underscores the need for continued feminist engagement with rape law reform, broadly conceived, notwithstanding its acute limitations for feminist anti-violence politics. (shrink)