Godden 2009 Rape

Title Information


Author: Nicola Godden

Title: Rape and the Civil Law

Subtitle: An Alternative Route to Justice

Thesis: Masters Thesis, Durham University

Year: 2009

Pages: viii + 116pp.

Language: English

Keywords: 20th Century, 21st Century | English History | Prosecution: Laws



Full Text


Link: Durham e-Theses (Free Access)



Additional Information


Abstract: »Over the past three decades there has been a considerable amount of attention paid to the problem of rape and how the law and legal system should address it. And yet, in spite of significant legislative changes and political goodwill, attrition rates remain high and conviction rates low. In light of this, this thesis will explore the civil law, and in particular the trespass to the person torts, as an alternative route to justice. By placing the crime of rape within the framework of tort law it seeks to provide an alternative perspective from which to interrogate the harm of rape. Exploring the small body of case law, it will consider the extent to which tort law can respond to and might disrupt the distorting presence of ‘rape myths’. It outlines the purpose(s) of tort law and the reasons as to why civil claims for rape (or acts like rape) may or may not be pursued, before considering its gendered limitations. Further, the strengths and shortcomings of the civil law’s procedural rules and structures that differ from the criminal law will be explored, as well as the extent to which tort law may contribute to maintaining a problematic conception of rape. The thesis concludes that while tort law is unlikely to provide an ideal route to justice, it might – at least for some – offer an alternative avenue to redress; and placing rape in the context of tort law – with different purposes, substance and procedures to the criminal law – might reshape and reframe debates, allowing us to rethink rape and the possible legal responses.« (Source: Durham e-Theses)

Contents:

  Statute List (p. iv)
  Case List (p. v)
  Acknowledgements (p. viii)
  1. Introduction (p. 1)
    1.1 Rape: The Legal Context (p. 1)
    1.2 Chapter Outlines (p. 3)
  Part 1: Rape and the Criminal Law (p. 7)
  2. Conceptions and Definitions of Rape (p. 8)
    2.1 Introduction (p. 8)
    2.2 Violence or Sex? (p. 8)
    2.3 Sex without Consent (p. 11)
    2.4 Freedom of Choice and Gender Inequality (p. 12)
      2.4.a Consent v. Coercive Circumstances (p. 12)
      2.4.b The Harm of Rape (p. 13)
      2.4.c The Context of Consent and Harm (p. 15)
    2.5 The Legal Definition of Rape: The Sexual Offences Act 2003 (p. 16)
      2.5.a The Gendered Act of Rape (p. 17)
      2.5.b Consent (p. 18)
      2.5.c Belief in Consent (p. 19)
    2.6 Conclusions (p. 20)
  3. Rape, 'Myths' and the Criminal Justice System (p. 22)
    3.1 Introduction (p. 22)
    3.2 'Rape Myths' (p. 22)
    3.3 The Justice Gap (p. 25)
      3.3.a Reporting and Recording Rape (p. 25)
      3.3.b Prosecuting and Convicting Rape (p. 27)
    3.4 Measures to Dispel Rape Myths (p. 29)
    3.5 Conclusions (p. 31)
      3.5.a Myths and Stories Law Tells (p. 31)
      3.5.b Alternative Possibilities (p. 33)
  Part 2: Rape and the Civil Law (p. 35)
  4. Tort Law and Rape (p. 36)
    4.1 Introduction (p. 36)
    4.2 The Purpose(s) of Tort Law (p. 37)
    4.3 Rape and the Trespass to the Person Torts (p. 39)
      4.3.a Battery (p. 40)
      4.3.b Assault (p. 41)
      4.3.c False Imprisonment (p. 42)
      4.3.d Consent (p. 42)
    4.4 Tort Law, Gender and Gendered Harms (p. 46)
      4.4.a The Standard of Reason and Reasoning (p. 47)
      4.4.b The Individual, Autonomy and Harm (p. 50)
    4.5 Rape Myths and Claims in Tort: A Case Study (p. 53)
    4.6 Conclusions (p. 57)
  5. Procedural Differences (p. 59)
    5.1 Introduction (p. 59)
    5.2 A Lower Standard of Proof: Justice via the Back Door? (p. 60)
      5.2.a The Standard of Proof in 'Serious' Civil Cases (p. 62)
      5.2.b After Re H: The Confusion Continues (p. 64)
    5.3 The Civil Justice System and 'Rape Trials' (p. 66)
      5.3.a Sexual History Evidence (p. 69)
      5.3.b Mode of Trial (p. 72)
    5.4 Conclusions (p. 76)
  6. Financial Considerations (p. 78)
    6.1 Introduction (p. 78)
    6.2 Costs (p. 78)
    6.3 Third Parties Who Pay (p. 80)
      6.3.a Vicarious Liability (p. 80)
      6.3.b The Criminal Injuries Compensation Scheme (p. 83)
    6.4 Damages (p. 85)
      6.4.a The Level of Damages (p. 86)
      6.4.b Compensating or Reifying the Harms of Rape? (p. 88)
    6.5 Conclusions (p. 90)
  7. Concluding Thoughts (p. 92)
    7.1 Where to From Here: The Criminal or Civil Law? (p. 92)
      7.1a Civil Claims in Addition to a Successful Criminal Prosecution (p. 92)
      7.1.b Civil Claims in Addition to an Unsuccessful Criminal Complaint (p. 93)
      7.1.c Civil Claims in the Absence of a Criminal Complaint (p. 95)
    7.2 'Less Serious' Rapes? (p. 96)
    7.3 The Necessity of the Criminal Law? (p. 99)
    7.4 Redressing Rape: The Possibilities and Pitfalls of Tort Law (p. 101)
  Bibliography (p. 107)

Added: November 8, 2014 – Last updated: December 13, 2014