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3 INTRODUCTION The issue of rape has been a provocative and antagonistic area of western law development and social evaluation. Most western countries have significantly engaged in reviewing their sexual offences codes in the last 30 years and many have enacted legal improvements as a result thereof. RAPE: Any person (‘A’) who unlawfully and intentionally commits an act of sexual penetration with a complainant (‘B’), without the consent of B, is guilty of the offence rape.

4 O’Malley states” the strength of a society’s commitment to certain core value such as bodily integrity, personal autonomy and gender equality can be measured by the effectiveness with which it outlaws sexual aggression and exploitation, the extend to which it tolerates consensual, non-exploitative sexual relations, and the fairness with which it treats both victims and perpetrators of sexual crime”

5 The presentation will attempt to discuss rape in a sociological and criminological perspective encompassing a historical law, feminist perspective, and historical context of influential theories about rapists’ motives.

6 Historical Perspective Brownmiller is of the view that women have been subdued to male desire and wishes and that by the design of the human body the woman was forced to accept man as the protector and subjugator. The influence of the major religions also had an important role to play in society’s view of the woman and her place in the society.

7 Christianity traditionally places women in a submissive role and requires a wife to ‘honour and obey’ her husband. Deuteronomy 5: “ If a man happens to meet a virgin who is not pledged to be married and rapes her and they are discovered, he shall pay the girl’s father fifty shekels of silver. He must marry the girl, for he has violated her. He can never divorce her as long as he lives”

8 The scripture places the woman as the possession of her farther and then after payment and marriage the rapist. Historically the law of rape was concerned almost exclusively with the theft of virginity. It was not possible for a women of lower class to successfully prosecute a man of higher standing in society.

9 Women were treated with suspicion and proof of discharge of semen was essential. In 1828 proof of discharge of semen became unnecessary, proof of penetration became sufficient.

10 Feminism Feminism has played a leading role in changing the laws on rape and how the crime is perceived sociologically. The feminist movement have made major contributions to the collective understanding of sexual violence. Feminist theories represent a variation of insights, viewpoints and conflicts which have emerged from feminist writing the past 40 years.

11 The feminist wave of the late 1960’s has placed rape and treatment of rape victims by society, and its laws as one of its primary focuses. Women such as Catherine Mackinnon, Susan Griffin and Susan Brownmiller were prominent in shaping feminist theory. Their theory suggest that we live in a male influenced rape-supportive culture, and that rape is both socially produced and socially legitimate.

12 The court room and the victim Feminists complaint that the victim was treated as if she was on trial during the trial. They were of the view that it was due to the judicial application of male biased laws that disempowered women in court. Example: a women had to proof that she tried to physically resist the attack. Presently the failure to offer resistance does not constitute consent.

13 Consent There is a problem of the societal perception of what consent actually may be. In a U.S case a grand jury in Austin decided that a woman gave consent because she had asked the rapist to wear a condom. A jury might decide that there was consent when in the situation, the victim should have known better.

14 Example: a victim went back to a house for a drink at night or even had been an acquaintance of the suspect before the rape, the jury may decide that this had indicated to the suspect that she was giving consent. These perceptions are prevalent in society resulting in the victim becoming a subject to secondary victimisation through disbelief, blame or a general lack of sympathy and support.

15 This places women on a pedestal where it is expected that they should always be virtuous and angelic in their actions and behaviour. This implies that women should not drink to much, be sexually active, dress provocatively or even frequent bars or clubs. If they do and get raped they become “legitimate victims”.

16 Sexual history The introduction of “rape shield” laws has somewhat reduced the practice of introducing a victim’s past sexual history as evidence in court. The judge now has discretion to give the defence permission to introduce such evidence only if it would be unfair to the defendant to refuse to allow the evidence.

17 This provision involves embarrassment and an unfair judgement of the victims character and is enough to prevent a victim from going to court. The Sexual Offenders Act 2001 has improved the situation as it allows a victim the right to legal representation should the defence introduce evidence of the victim's past sexual history.

18 The victim, the police and the legal profession Research reports that there are a 3.5 underreported rapes for every reported rape. Some of the reasons for this is the victim's perception of how they will be treated by the authorities.

19 Victims normally worries about the following: That she will not be credible in the eyes of the law if certain factors are not present Lack of an eyewitness Presence of the lack of physical injury Whether the victim had a previous relationship with the offender Whether there was a delay in reporting What she was wearing when it happened Her character

20 The victim might be ashamed and fearful of what others may say or think. She may also fear the in-depth interviewing by the police. The fear of what she experienced might not be real rape. Research indicates that police takes rape more seriously if it is reported immediately. The rational seems to be that if a victim reports a rape late that she was persuaded to report the rape.

21 Factors impacting on police attitude towards the victim: If the victim was hitching a ride Drinking or being under the influence of drugs If the victim has a prior sex history with the suspect The victim’s occupation (sex worker, lap dancer) These male controled standards are patronizing to the victim.

22 This treatment of victims by authorities is not restricted to any one jurisdiction. It is a global phenomena. Jennifer Temkin revealed that barristers have the same preconceptions as the police. She also pointed out that it is difficult to achieve a prosecution in rape due to the lack of supporting evidence due to the victim not being able to remember the exact details of the rape.

23 The report found that a variety of methods are employed to present the victim in a certain light when trying to defend the accused: Using female barristers Harassing the complainant Trapping the complainant: lulling her into a false sense of security and then trying to trick her into saying something incriminating Keeping her calm as this makes her seem less credible.

24 MARXIST THEORY For Bonger, the roots of crime lay in the exploitative and alienating conditions of capitalism. Bonger believed, all individuals in capitalist societies are infected by egoism, and all are therefore prone to crime.

25 MARXIST THEORY Poverty was a major cause of crime for Bonger, but it worked by way of its effects on family structure (broken homes) and poor parental supervision of their children. Bonger has been criticized by other Marxists, but he firmly believed that only by transforming society from capitalism to socialism would it be possible to regain the altruistic sentiment and reduce crime

26 Modern Marxist Criminology William Chambliss (1976) views some criminal behaviour as “no more than the ‘rightful’ behaviour of persons exploited by the present economic relationships” Marxist criminologists also appear to view the class struggle as the only source of all crime and to view “real” crime as violations of human rights, such as racism, sexism, imperialism, and capitalism, and accuse other criminologists of being parties to class oppression.

27 MARXIST (1980) LEFT REALISTS Acknowledge that predatory street crime is a real source of concern among the working class, who are the primary victims of it. They understood that they have to translate their concern for the poor into practical, realistic social policies. This theoretical shift embraces the interrelatedness of the offender, the victim, the community, and the state in the causes of crime.

28 MARXIST (1980) LEFT REALISTS It also signals a return to a more orthodox Marxist view of criminals as people whose activities are against the interests of the working class as well as those of the ruling class. Left realists have been criticized by more traditional Marxists who see their advocacy of solutions to the crime problem within the context of capitalism as a sell-out (Bohm, 2001).

29 Marx, Max Weber (1864–1920) saw societal relationships as best characterized by conflict. While Marx saw cultural ideas as moulded by the economic system, Weber saw a culture’s economic system being moulded by its ideas. Marx emphasized economic conflict between only two social classes, Weber saw conflict arising from multiple sources, with economic conflict often being subordinate to other conflicts.

30 Marx, Max Weber (1864–1920) saw societal relationships as best characterized by conflict. Marx envisioned the end of conflict with the destruction of capitalism, while Weber contended that it will always exist, regardless of the social, economic, or political nature of society, and that it was functional because of its role in bringing disputes into the open for public debate.

31 CONCEPTMARXISTCONFLICT Concept of crime Some view crime as: the revolutionary actions of the oppressed, the socially harmful acts of “class traitors,” and others see it as violations of human rights. Conflict theorists refuse to pass moral judgment because they view criminal conduct as morally neutral with no inherent properties that distinguish it from conforming behaviour. Crime doesn’t exist until a powerful interest group is able to criminalize the activities of another less powerful group.

32 CONCEPTMARXISTCONFLICT Cause of crime The dehumanizing conditions of capitalism. Capitalism generates egoism and alienates people from themselves and from others. The distribution of political power that leads to some interest groups being able to criminalize the acts of other interest groups.

33 CONCEPTMARXISTCONFLICT Cure for crime With the overthrow of the capitalist mode of production, the natural goodness of humanity will emerge, and there will be no more criminal behaviour. As long as people have different interests and as long as some groups have more power than others, crime will exist. Since interest and power differences are part of the human condition, crime will always be with us.


35 Feminist Criminology Feminists see women as oppressed both by gender inequality (their social position in a sexist culture) and by class inequality (their economic position in a capitalist society). Some feminists believe the answer to women’s oppression is the overthrow of the two-headed monster—capitalism and patriarchy.

36 A patriarchal society is one in which “masculine” traits such as competitiveness, aggressiveness, autonomy, and individualism are valued, and “feminine” traits such as intimacy, connection, cooperation, nurturance, while appreciated, are downplayed (Grana, 2002). Many feminist criminologists have concluded that male - centered theories have limited applicability to females because they focus on male frustration in their efforts to obtain success goals (status, resources) and ignore female relationship goals (marriage, family) (Leonard, 1995)

37 Why the need for a special feminist theory?: Most female offenders tend to be found in the same places as their male counterparts—i.e., among single-parent families located in poor, socially disorganized neighbourhoods. Male and female crime rates increase or decrease together across different nations and communities, indicating that females are responsive to the same environmental conditions as males (Campbell, 2009).

38 Power-Control Theory John Hagan’s (1989) Power-control theory: views gender differences in antisocial behaviour as a function of power differences in the family, and states that these arise from the positions the spouses occupy in the workforce.

39 Power-Control Theory Where fathers are the sole breadwinner and mothers are housewives and/or have menial jobs, a patriarchal family structure results, especially if the father is in a position of authority at work.

40 Power-Control Theory The patriarchal family is one in which the workplace experiences are reproduced, and it is said to be “unbalanced” in favour of the father.

41 Power-Control Theory Patriarchal families are viewed as granting greater freedom to boys to prepare them for traditional male roles, while daughters are socialized to be feminine, conforming, and domesticated.

42 What is the motive?

43 This continuing interest in rapists’ motives has few parallels in mainstream criminology. With rare exceptions, modern criminologists usually examine non-motivational causes of crime such as the criminal’s childhood, his personality, his peers, his alcoholism, and at the societal level—demographic and economic trends as well as policing and sentencing policies. For many years, most criminologists have treated criminals’ motives (in the sense of goals) as irrelevant to public policies.

44 Why do some offenders like to steal cash, others like stolen cash plus a chance to beat upon its owner, and still others like violent sex The motives of criminal (and of human) behaviour are as varied as the behaviour itself; we come to an understanding of the general processes shaping crime only

45 Any more than it is obvious that the best way to understand the economy is by discovering why some persons keep their money in the bank, others use it to buy tickets to boxing matches, and still others use it to buy the favours of a prostitute.

46 What rapists said: they are trying to overcome anxieties about their masculinity. These might be due to “virtually absent” fathers combined with dominant, overly protective mothers, doubts about their attractiveness to women, or repressed homosexual inclinations. 1 Freud believed that when young boys first realize that girls do not have penises they assume that girls are created by fathers who castrated their sons.

47 Relying on another Freudian concept, some authors asserted that rapists have a Madonna–prostitute complex. Men with this complex divide women into two types: a)those they love and consider worthy of respect (Madonnas), and b)those they regard as inferior and seek to defile and degrade (prostitutes).

48 They only enjoy sex with the latter: “Where such men love, they have no desire, and where they desire, they cannot love.” As a result, these men cannot be sexually satisfied with their wives or girlfriends, whom they love and respect. So they rape disreputable women toward whom they feel nothing but contempt but with whom they can find sexual satisfaction

49 Psychoanalysts inconsistent conclusions: Are rapists men whose mothers were too warm or too cold? Are they latent homosexuals? Are they trying to overcome castration complexes? Do they worship their girlfriends as “Madonnas,” or are they angry (as one study concluded) at promiscuous girlfriends? The usual answer was that there are several types of rapists, but the typologies and explanations differed from one author to another

50 Some authors interpret the findings of the studies as evidence that rapists are: more obsessed with sex less able or willing to control their sexual impulses subject to more frequent or more intense physical desires for sexual gratification. One may then infer that their rapes were sexually motivated

51 Most common findings Rapists are more sexually advanced and inclined to prefer casual encounters to faithful relationships Do not necessarily mean that they have unusual strong or frequent physical cravings for sex. Sexual maturity may be due to a poor family or peer environment, lack of moral and concrete reserves, and general delinquency.

52 A man’s sexual practices are affected by his personality and values—for instance, his anti-social tendencies, Some of the other items on sexualisation scales, such as ingesting of pornography and visits to strip clubs, are also subject to multiple interpretations. Even the most probative items, such as frequency of orgasms, may be affected by factors other than the strength of one’s sex drive—for example, religious attitudes toward masturbation and premarital sex.

53 Conclusion The offence of rape is a complex and multi facetted crime that has far reaching consequences for its victims and society. It is therefore imperative that laws are updated and are gender neutralised.

54 Conclusion Better services must be provided for victims to degenerate crime if future generations are to live in an equal and fare society. Theorist are not prepared to say that the sexualisation studies, suggestive though they are, are suffice to show that most rapists’ motives are primarily sexual.

55 The end Thank you


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