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Contextualising consent: the problem of rape and romance

2005; Routledge; Volume: 20; Issue: 46 Linguagem: Inglês

10.1080/0816464042000334519

1465-3303

Nina Philadelphoff-Puren,

Law in Society and Culture

Click to increase image sizeClick to decrease image size Notes See ‘Top Lawyer Says Juries Fail on Rape’, Age, 19 November 2001; and ‘On Rape and Retribution’, Age, 24 November 2001. See ‘Top Lawyers Says Juries Fail on Rape’ where Professor Marcia Neave argues that juries are reluctant to convict in cases where women knew their attacker and suffered minimal injuries: ‘Many people still think that if you haven't fought, you have consented. A lot of people are not actually physically injured. But they have been sexually assaulted.’ See Laura Russo, ‘Date Rape: a Hidden Crime’, Trends and Issues in Crime and Criminal Justice, no. 157 (Australian Institute of Criminology) Canberra, 2000, p. 2. See particularly Carole Pateman, ‘Women and Consent’, Political Theory, vol. 8, no. 2, 1980, for the contradictions that inhere within contract theory in relation to women's consent; and Catherine A. MacKinnon, Towards a Feminist Theory of the State (Harvard University Press) Cambridge, MA and London, 1989, p. 173, for a discussion of those contradictions in the context of rape law. Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton University Press) Princeton, NJ, 1995, p. 163. There is a significant feminist literature on the question of romance and popular romance in particular. For an early and influential investigation into the relation between popular romance narratives, feminine subjectivity and patriarchal inequality, see Tania Modleski, ‘The Disappearing Act: Harlequin Romances’, Loving with a Vengeance: Mass-produced Fantasies for Women (Archon Books) Hamden, CT, 1982; for an analysis of the role of teen-romance in the production of feminine subjectivity and heterosexuality, see Linda K. Christian-Smith, Becoming a Woman through Romance (Routledge) New York and London, 1990; for the now-classic analysis of the function of popular romance in the lives of female readers, and the role it may play in strategies of resistance, see Janice Radway, Reading the Romance: Women, Patriarchy and Popular Literature (Verso) London, 1987; for a reflection on the question of popular romance in the context of economics, see Leslie Rabine, ‘Romance in the Age of Electronics: Harlequin Enterprises’ in Robyn R. Warhol and Diane Price Hernl (eds), Feminisms: an Anthology of Literary Theory and Criticism (Rutgers University Press) New Brunswick, NJ, 1997; for the view that popular romance reiterates the structures of economic inequality and patriarchal relations, see P. Gilbert and S. Taylor, Fashioning the Feminine: Girls, Popular Literature and Schooling (Allen & Unwin) Sydney, 1991; and Anne Cranny-Francis, Engendered Fictions: Analysing Gender in the Construction and Reception of Texts (New South Wales University Press) Sydney, 1992; for an outstanding collection of feminist investigations into various romantic phenomena from a broad range of contemporary theoretical perspectives, see Lynne Pearce and Jackie Stacey (eds), Romance Revisited (New York University Press) New York and London, 1995. For example, see Alison Young, ‘The Waste Land of the Law, the Wordless Song of the Rape Victim’, Melbourne University Law Review, vol. 22, no. 2, 1998; Ngaire Naffine, ‘Windows on the Legal Mind: the Evocation of Rape in Legal Writings’, Melbourne University Law Review, vol. 18, 1992, and ‘Possession: Erotic Love in the Law of Rape’, Modern Law Review, vol. 57; Kathryn Gravdal, Ravishing Maidens: Writing Rape in Medieval French Literature and Law (University of Pennsylvania Press) Philadelphia, 1991; Lois Pineau, ‘Date-rape: a Feminist Analysis’ in Leslie Francis (ed.), Date Rape: Feminism, Philosophy and the Law (Pennsylvania State University Press) University Park, 1996; Lynne Henderson, ‘Rape and Responsibility’, Law and Philosophy, vol. 11, 1992. Gravdal, Ravishing Maidens, p. 14. For a fascinating discussion of this point, see Lynn A. Higgins, ‘Screen/Memory: Rape and its Alibis in Last Year at Marienbad’ in Lynn A. Higgins and Brenda R. Silver (eds), Rape and Representation (Columbia University Press) New York, 1991, p. 307, who writes that: [R]ape is a special kind of crime in relation to narrative. It differs from other violent crimes in the kind of alibi it permits. To prove his innocence, someone suspected of murder must show he himself was elsewhere or that the murder was committed by another person. He can rarely claim that no crime occurred. Murder is not a crime whose noncommission can be narrated. Rape, on the other hand, can be discursively transformed into another kind of story. This is exactly the sort of thing that happens when rape is rewritten retrospectively into ‘persuasion’, ‘seduction’, or even ‘romance’. Jacques Derrida, Of Grammatology, Gayatri Chakravorty Spivak (trans.) (Johns Hopkins University Press) Baltimore, 1974, p. 145. It is interesting to note that this point does not go unnoticed by romance readers. Commenting on ‘forced seduction’ as a plot device, one reader remarks that: ‘[I]n the final analysis, the woman says no and the guy “forces” it anyway. Heaven forbid if legal beagle hold up either [of these romance novels] as a legal defense by saying this is written by women for women and it reflect [sic] what women want.’ Laurie's News and Views [web page] Issue no. 55, July 1998, available at , accessed 5 March 2003, p. 6. See Melanie Heenan and Helen McKelvie, The Crimes (Rape) Act 1991: an Evaluation Report, Rape Law Reform Evaluation Project, Report no. 2, Attorney General's Legislation and Policy Branch (Department of Justice) Victoria, Melbourne, 1997. p. 297, where it is noted that, despite comprehensive reforms to definitions of consent, some judges were recorded making directions to the jury like the following: ‘The fact that a woman says no, does not necessarily mean that she is not consenting. She may say one thing and yet behave in a way which is quite inconsistent with her spoken refusal.’ It is important to note that the various genres of romance published by Harlequin Mills & Boon show that popular romance cannot be analysed as a monolithic form. The various imprints published by the company designate distinct romantic territories, requiring different kinds of character, locations, plot structures and levels of sexual explicitness. See ‘Editorial Guidelines’ (Harlequin Enterprises) Sydney, 2001. In this novel, the heroine escapes from a man who is trying to attack her, only to be raped by the hero, who thinks she is a prostitute. The heroine becomes pregnant after this assault and marries the hero, with whom she eventually falls in love. See Janice A. Radway, Reading the Romance: Women, Patriarchy and Popular Literature (Verso) London and New York, 1984, p. 142, for a discussion of the reaction of romance readers to this novel. Radway notes that the readers she worked with ‘did not blame the hero for violating a woman but rather for lacking the perception to see that the heroine was not a prostitute’. As Radway notes, this reaction denotes anger not for ‘men's lack of respect for female integrity but [for] their inability to discriminate between innocent women and bad’. Laurie's News and Views [web page] Issue no. 55, July 1998, available at , accessed 5 March 2003. See ‘Editorial Guidelines’. For a brief selection of her novels in this style, see Charlotte Lamb, Hot Surrender (Harlequin Mills & Boon) Richmond, Surrey, 1999; The Seduction Business (Mills & Boon) Richmond, Surrey, 1999; The Marriage War (Harlequin Mills & Boon) Richmond, Surrey, 1997; Hot Blood (Mills & Boon) Richmond, Surrey, 1996; Angry Desire (Mills & Boon) Richmond, Surrey, 1995; and Haunted Dreams (Mills & Boon) Richmond, Surrey, 1995. Charlotte Lamb, The Boss's Virgin (Harlequin Mills & Boon) Richmond, Surrey, 2001. Lamb, The Boss's Virgin, p. 23. Lamb, The Boss's Virgin, p. 28. Lamb, The Boss's Virgin, p. 29. Lamb, The Boss's Virgin, p. 69. Lamb, The Boss's Virgin, pp. 71–3. Lamb, The Boss's Virgin, p. 79. Lamb, The Boss's Virgin, pp. 142–3. Lamb, The Boss's Virgin, p. 148. Pateman, ‘Women and Consent’, p. 152. The Queen v. Gary Alan Hughes, District Court, Townsville, 30 March 1998 (8 April 1998). All page numbers refer to the transcript of proceedings provided by the State Reporting Bureau, Queensland. The Queen v. Gary Alan Hughes, p. 290. The Queen v. Gary Alan Hughes, p. 316. The Queen v. Gary Alan Hughes, p. 343. The Queen v. Gary Alan Hughes, p. 159. The Queen v. Gary Alan Hughes, p. 436. Pateman, ‘Women and Consent’, p. 155. Pateman, ‘Women and Consent’, p. 155. Lamb, The Boss's Virgin, p. 145. The Queen v. Gary Alan Hughes, p. 53. The Queen v. Gary Alan Hughes, p. 437. R. v. Hughes [1998] QCA 279 (18 September 1998). The Queen v. Gary Alan Hughes, p. 228. This debate can be found in Leslie Francis (ed.), Date Rape: Feminism, Philosophy and Law (Pennsylvania State University Press) University Park, 1996. This collection reprints Lois Pineau's essay on date rape (first printed as ‘Date-rape: a Feminist Analysis’, Law and Philosophy, vol. 8, no. 2, 1989) with a series of responses from legal academics. Pineau, ‘Date-rape’, p. 23. It is important to note that the principles of Pineau's model of communicative sexuality can be seen to subtend the definition of consent in the Crimes (Rape) Act 1991 in Victoria. For example, Section 37 (a) states that a judge must tell a jury that ‘the fact that a person did not say or do anything to indicate free agreement to a sexual act is normally enough to show that the act took place without that person's free agreement’. See Heenan and McKelvie, The Crimes (Rape) Act 1991, pp. 294–7, for a discussion of the effect of this definition in practice. While many judges have explained the definition to the jury in a manner that accords with the spirit of the legislation, some judges persist in articulating outdated views about female expressions of consent. Catherine Wells, ‘Date Rape and the Law: Another Feminist View’ in Francis (ed.), Date Rape. Wells, ‘Date Rape and the Law’, p. 40. Lois Pineau, ‘A Response to My Critics’ in Francis (ed.), Date Rape. Pineau, ‘A Response’, p. 76. Pineau, ‘A Response’, p. 79, my emphasis. For an argument critical of this manoeuvre in feminist texts on consent, see Judith Vega, ‘Coercion and Consent: Classical Liberal Concepts in Texts on Sexual Violence’, International Journal of the Sociology of Law, vol. 16, 1988, p. 77. Pineau, ‘A Response’, p. 80. Pineau, ‘A Response’, p. 80. Christine de Pizan, The Book of the City of Ladies, Earl Jeffrey Richards (trans.) (Persea Books) New York, 1982, pp. 160–2. In this famous passage, de Pizan is in dialogue with Rectitude, who narrates examples of famous ladies who resist sexual assault rather than desiring it. The passage continues: ‘Then I, Christine, spoke as follows, “My lady, I truly believe what you are saying, and I am certain that there are plenty of beautiful women who are virtuous and chaste and who know how to protect themselves well from the entrapments of deceitful men. I am therefore troubled and grieved when men argue that many women want to be raped and that it does not bother them at all to be raped by men even when they verbally protest. It would be hard to believe that such great villainy is actually pleasant for them.”’ For an analysis of the complexity of de Pizan's position on sexual assault and the function of her illuminations in this context, see Diane Wolfthal, ‘“The Greatest Possible Sorrow”: Christine de Pizan and the Representation of Rape’ in Images of Rape: The ‘Heroic’ Tradition and its Alternatives (Cambridge University Press) Cambridge, 1999. Wendy Brown, Politics Out of History (Princeton University Press) Princeton, NJ and Oxford, 2001. Brown, Politics, p. 36. See Carol Smart, Feminism and the Power of Law (Routledge), London, 1989, p. 164, where she notes that ‘it is law's power to define and disqualify which should become the focus of feminist strategy rather than law reform as such’. On the relationship between legal interpretations of rape and cultural texts, see Terry Threadgold, ‘Critical Theory, Feminisms, the Judiciary and Rape’, Australian Feminist Law Journal, vol. 1, 1993, pp. 7–26.