Citation

Warner K. Legal Stud. 2000; 20(4): 592-611.

Copyright

(Copyright © 2000, Society of Legal Scholars, Publisher John Wiley and Sons)

DOI

10.1111/j.1748-121X.2000.tb00161.x

PMID

unavailable

Abstract

The failure of rape law to convict more men and to protect more women appears to be attributable to the fact that underlying, and assumed by, the law is a male dominated conception of aggressive and possessive male sexuality and a misunderstanding of the real wrong of rape. The sentencing stage of criminal proceedings offers courts the opportunity to challenge these attitudes. Court of Appeal sentencing decisions in cases of marital and relationship rape are analysed and sentencing principles and practice which endorse and reinforce a male dominated conception of sexuality and the wrong of rape are criticised. So, it is argued, an intimate relationship between the offender and the victim should not be a mitigating factor. Nor should forgiveness be a special mitigating factor in cases of marital rape. And attempts to mitigate rape by explaining it in terms of emotional stress, an excess of seductive zeal or other ways that treat aggressive male sexual behaviour and female passivity as the norm, should not be countenanced. Instead, sentencing guidance should foster attitudes which conceive of sexuality as an expression of equal and sharing relationships.