Sex crime legislation: Proactive and anti-therapeutic effects

International Journal of Law and Psychiatry

Volumn 33, Issue 5-6, 2010, Pages 329-335

  Diesen, Christian ^a   Diesen, Eva F ^a  

^a STOCKHOLM UNIVERSITY   (Sweden)

Author keywords

False allegations; Legislation; Rape; Therapeutic jurisprudence

Indexed keywords

ARTICLE; CRIMINAL LAW; GUILT; HUMAN; INFORMED CONSENT; JURISPRUDENCE; LEGAL PROCEDURE; MEDICOLEGAL ASPECT; PERSUASIVE COMMUNICATION; PSYCHOLOGICAL WELL BEING; PSYCHOTRAUMA; RAPE; SEXUAL CRIME; SOCIAL SUPPORT; VICTIM;

COERCION; CRIME VICTIMS; CROSS-CULTURAL COMPARISON; FEMALE; GUILT; HUMANS; LAW ENFORCEMENT; POWER (PSYCHOLOGY); PROSTITUTION; RAPE; SOCIAL VALUES; SPOUSE ABUSE; STRESS DISORDERS, POST-TRAUMATIC; SWEDEN; VIOLENCE;

EID: 78650306665     PISSN: 01602527     EISSN: None     Source Type: Journal    
DOI: 10.1016/j.ijlp.2010.09.018     Document Type: Article

References (41)

1. Main report: Christian Diesen & Eva F. Diesen, Övergrepp Mot Kvinnor Och Barn-Den Rättsliga Hanteringen ("The Legal Handling of Sex Crimes and Family Violence"), Stockholm; Norstedts Juridik (2009).
2. Liz Kelly & Jo Lovett, Different systems, similar outcomes? Tracking attrition in reported rape cases across europe, Daphne II Study (EU), London; CWASU (2009).
3. Following the judgment of the European Court of Human Rights in the case M.C. v. Bulgaria, the Council of Europe has recommended that the law should be formulated so that it does not require violence.
4. The states of the United States have their own rape laws, but most appear to be based on a similar approach, with violence as the point of departure, and with various more or less extensive alternatives to coercion (extortion, dependent status, disability, etc.). Since most states have removed the resistance requisite from the law and in practice convicted in cases of acquaintance rape on the basis of non-consent, the trend is clear towards "a modern rape law." Seventeen states (and the District Of Columbia) have already reformulated the rape law to a non-consent requisite, see Leslie Robinson It is what it is: Legal Recognition of Acquaintance Rape 6 Ave Maria L. Rev. 627 (2008).
5. Robinson, supra note 4. See also Donald Dripps, After Rape Law: Will the Turn to Consent Normalize the Prosecution of Sexual Assault? 41 Akron L. Rev. 957 (2009).
6. Cathrine MacKinnon, paper at the conference "Rethinking Rape Law," Durham University (2008).
7. If the woman was married and suspicions remained, there was also a risk at one period of time that she might also be prosecuted for whoring.
8. In Sweden, injuries were registered in only 24% of the reported rape cases (2004); Kelly & Lovett supra note 2.
9. In Sweden, only 13% of the rape reports (2006) were assaults by strangers, Diesen & Diesen, supra note 1 at 21.
10. Susan Estrich, Real Rape: How the legal system victimizes women who say no, Cambridge (MA), Harvard University Press (1987).
11. Philip Rumney, False Allegations of Rape, 65 Cambridge law journal 128 (2006), with references at 141-144.
12. Liz Kelly & Linda Regan, A gap or a chasm? attrition in reported rape cases, Home Office Research Study 293, London (2005) at 50; Diesen & Diesen, supra note 1 at 56.
13. See Patricia A. Resick, The Psychological Impact of Rape, 8 Journal of Interpersonal Violence 223 (1993) with references.
14. Liz Kelly, Surviving sexual violence, Cambridge; Polity Press (1988) at 161; Colleen Ward, Stress, Coping and Adjustment in Victims Sexual Assault: The Role of Psychological Defense Mechanisms 1:2 Counselling Psychology QUARTERLY 165 (1988); and Rebecca Macy, Paula S. Nurius & Jeanette Norris, Latent Profiles among Sexual Assault Survivors: Implications for Defensive Coping and Resistance, 22 Journal of interpersonal violence 543 (2007).
15. See Amanda Konradi, Understanding Rape Survivors Preparations for Court: Accounting for the Influence of Legal Knowledge, Cultural Stereotypes, Personal Efficacy and Prosecutor Contact, 2 Violence Against Women 25 (1996). On a more general level, see E. Allen Lind & Tom R. Tyler, The social psychology of procedural justice (1988).
16. Ann Burgess & Linda Holmstrom, Rape Trauma Syndrome, 131 American journal of psychiatry 981 (1974); L. Kelly, supra note 14 at 190-214; and Patricia A. Resick, supra note 15. See also Sharon M. Wasco, Conceptualizing the Harm done by Rape: Applications of Trauma Theory to Experiences of Sexual Assault, 4 Trauma, violence & abuse 309 (2003).
17. Swedish Justice Department, Anmälan och utredning av sexualbrott ['Reporting and investigation of sex crimes'] (Ju 2004:1) 66-74; Liz Kelly, supra note 14 at 219. Certainly this conclusion is linked to the trial as a - real or expected - bad experience.
18. In Sweden, 2% of suspects who were questioned confessed; Diesen & Diesen, supra note 1 at 45. Regarding strategies for encouraging taking of responsibility-by the suspect, see Astrid Birgden, Dealing with the Resistant Criminal Client: A Psychologically-minded Strategy for more Effective Legal Counselling, 38 (2) Criminal Law Bulletin 225 (2002), reprinted in D.B. Wexler (Ed.), Rehabilitating lawyers: principles of therapeutic jurisprudence for criminal law practice, Durham, NC (2008).
19. Ulf Holmberg, Police interviews with victims and suspects of violent and sexual crimes (diss.), Stockholm (2004).
20. E. Shepherd, Ethical Interviewing, Policing 7, London 1991. See also Rebecca Milne & Ray Bull, Investigative interviewing; psychology and practice, Chichester 1999.
21. Kelly & Lovett 2009, supra note 2.
22. Id. Another feature of this is that the penalty is normally significantly lower in countries with a mixed bench; in Sweden, for example, the average sanction for rape is 2.5years in prison.
23. Term launched by Norwegian criminologist Nils Christie in The Ideal Victim, in E. Fattah (Ed.), From crime policy to victim policy, Basingstoke; MacMillan (1986).
24. In the EU-study (2009), these were factors (linked to the suspect) that increased the odds for prosecution in rape cases; Kelly & Lovett supra note 2.
25. Robert C Davis, Ellen Brickman & Timothy Baker, Supportive and Unsupportive Aspects of the Behavior of Others to Rape: Effects on Concurrent Victim Adjustment, 19 American Journal Of Community Psychology 443 (1991); and Sharon M Wasco, supra note 18.
26. Jennifer Temkin & Barbara Krahé, sexual assault and the justice gap, Oxford; Hunt Publishing (2008).
27. In recent years, the Home Office has pursued campaigns primarily directed at young men concerning the meaning of the law and the importance of ensuring that the woman definitely says "yes"; but it can be questioned whether these campaigns have had any effect yet; Temkin & Krahé, supra note 26.
28. One good example of proactive legislation is the prohibition of corporal punishment for children introduced in Sweden (first in the world) in 1969. This type of prohibition can now be found in 23 countries.
29. The question of a statutory amendment is under investigation; a bill will be presented in 2010. In 2005, when the act was last amended, an alternative based on non-consent was rejected, among other things for the reason that such a law had not resulted in more prosecutions in England.
30. Such appointments are in practice often made with some delay. Nowadays, the right to victim's counsel basically applies to all victims of sexual or violent crimes.
31. The new crimes for protection of women's integrity were introduced in the Penal Law in 1998 (Prop.1997/98:55).
32. Official Swedish statistics from the Swedish National Council for Crime Prevention (BRÅ); the figures relate to victims of all ages. In 2008, 3994 of the reports related to victims over the age of 15.
33. Kelly & Lovett 2009; supra note 2.8
34. The provision on rape was amended in 2005 so that it also includes powerless victims, that is, persons who are asleep, unconscious, disabled, etc. (which was previously classified as the less serious offense of sexual exploitation), but this extension represents only a small part of the increase in reports; Diesen & Diesen 2009, supra note 1 at 14. However, many people may have been given the impression that the law no longer requires violence/threats.
35. Diesen & Diesen 2009 supra note 1 at 22.
36. See P. Hora, W. Schma & J. Rosenthal, Therapeutic Jurisprudence and the Drug Treatment Court Movement, 74 Notre Dame Law Review (1999).
37. See Bruce J. Winick, The Side Effects of Incompetency Labeling and the Implications for Mental Health Law, in D. Wexler & B. Winick (Eds.), Law in a therapeutic key: developments in therapeutic jurisprudence, Carolina Press (1996), at 17-58; and David B. Wexler, The Development of Therapeutic Jurisprudence: From Theory to Practice, 68 Revista Juridica universidad de puerto rico 691, (1999).
38. See David Wexler, Reflections on the Scope of Therapeutic Jurisprudence, in Law in a therapeutic key, supra note 37 at 817.
39. Ulf Holmberg, Psychological Well-being, Humanity and Dominance in Police Interviews: Causes and Effects, paper at the XXXI International conference on Law and Mental Health (IALMH), New York 2009.
40. However, as described above, there are many other counterproductive factors; for example, the form of the process.
41. To get this effect it is important that the suspect as well is treated with respect during the process, see E. Allen Lind & Tom R. Tyler, supra note 15 at 5-8, 65-81, 103-109.