Better the Devil You Know? ‘Real Rape’ Stereotypes and the Relevance of a Previous Relationship in (Mock) Juror Deliberations

• Published in: The international journal of evidence & proof Vol. 17; no. 4; pp. 299 - 322
• Main Authors: Ellison, Louise, Munro, Vanessa E.
• Format: Journal Article
• Language: English
• Published: London, England SAGE Publications 01-10-2013
• Subjects: Jury; Rape; Credibility; Sex; Relationship
• ISSN: 1365-7127; 1740-5572
• DOI: 10.1350/ijep.2013.17.4.433

It has become commonplace in commentaries on the ‘justice gap’ in rape cases to lament the existence of a ‘real rape’ stereotype which prevents assaults involving known assailants, which take place in private spaces and perhaps without the use of additional physical violence, from being accepted as genuine and/or serious violations, whether by police, prosecutors or jurors. In previous work, we have urged caution lest too much reliance on the ‘real rape’ stereotype disguise the complexities at play in framing jurors' responses to rape cases involving acquaintances. In this article, we take these reflections further, drawing on a recent study conducted by the authors in which 160 members of the public were recruited and, having observed one of four mini trial reconstructions involving an alleged rape by the complainant's ex-partner, were divided into juries and asked to deliberate towards a verdict. Though the vast majority of our jurors were receptive, in principle, to the idea that a woman could be raped by a man with whom she had previously had a relationship—and indeed often noted the statistical prevalence of such assaults—participants continued to consider these cases to be ‘less clear-cut’, ‘more delicate’ and ‘a lot harder’ than rapes involving a stranger. In line with our previous findings in the context of acquaintance rapes, the fact of a familiarity between the trial parties created an opportunity for jurors to invoke and rely upon engrained expectations regarding resistance and sexual (mis)communication, which—when combined with persuasive strategies that interpreted the standard of proof as requiring nothing short of absolute certainty—mitigated against the likelihood of returning a guilty verdict. Significantly, though, as we will illustrate in this article, the fact of a previous intimate relationship interacted with these expectations in heightened and often quite specific ways to create new tropes.