Punishing Rape

Posted on: 20 September 2022 by Dr Alice Ievins in Blog

On 3rd October 2021, then UK Prime Minister Boris Johnson appeared on the BBC’s Andrew Marr Show. It was just a few days after Wayne Couzens, a serving Metropolitan police officer, had been given a whole life sentence for the kidnap, rape and murder of Sarah Everard. Andrew Marr opened the segment by asking Johnson what women should do if they are stopped by a police officer. Johnson insisted that we should trust the police.

The right response to the violence inflicted by Couzens, Johnson maintained, was not less but more policing: ‘What I want you to know is that we will stop at nothing to make sure that we get more rapists behind bars.’ (The Andrew Marr interview can be viewed on BBC iPlayer).

Johnson is not notoriously a feminist, but his promise provides a good example of mainstream feminist thought about the best response to sexual violence: that more punishment, more widely distributed, is the best route to justice. Disturbed by low rates of charging, prosecution and conviction of sexual violence, feminist advocates of punishment have in recent decades tried to alter the legal and penal system so that convictions are more common and punishments are more severe (McGlynn, 2010).

In many ways they have been successful. Over the last forty years, the number of men in prison for sex offences has increased as both a number and a proportion of the prison population. In 1980, men convicted of sex offences made up four per cent of the prison population. By 2000, they were 10 per cent (Mann, 2016), and by its peak in 2018, 19 per cent of all men in prison were currently serving a sentence for a sex offence (Ministry of Justice, 2018). Nevertheless, campaigners continue to be disturbed by stubbornly low rates of charging and conviction for sexual violence, which Victims’ Commissioner Vera Baird (2020) has described as reflecting ‘the effective de-criminalisation of rape’.

The push for more convictions is driven in part by the belief that prisons keep people safe, and partly by trust in the denunciatory power of punishment, of which imprisonment is the archetypal form. This trust is based on straightforward logic: if it is through sending people to prison that we show that we disapprove of their actions, and if we need to more steadfastly denounce rape, then we need to send more people who have committed rape to prison.

But the simplicity of this logic enables a lack of curiosity about the nature and experience of punishment. It is striking that when people call for feminist legal reform, they tend to stop at the gate of the prison and to pay very little attention either to what happens inside it or to what happens after people are released. This is a mistake.

The prison is not just the endpoint of a legal process, the destination of those who receive certain types of convictions, but it is the space in which that punishment is delivered. If we think that punishment matters, then we need to know what punishment looks like. To know what punishment looks like, we need to know what it expresses.

If one goal of punishment is to send a message about the wrongness of sexual violence, we need to work out whether our techniques of punishment actually send this message. What does sending people to prison, and what happens to them while they are in there, say to them about who they are and what they have done? How do prisoners respond to these messages? What sort of moral community do they form with their peers? What ideas about sexual violence do they carry out with them when they are released? Does any of this have any relationship to justice?

In my soon-to-be-published book, The Stains of Imprisonment, I try to answer some of these questions.

In 2015, as a PhD student interested in understanding the experience of imprisonment and the contours of penal power, I had conducted an ethnographic study of a medium-security English prison which only held men convicted of sex offences. I had spent five months visiting the prison four days a week, using keys to walk the wings unescorted, and interviewing staff members and prisoners.

In the beginning, my focus was directed by the standard research questions asked by sociologists of imprisonment: what was life in these prisons like? How did power work there? What sorts of social relationships did prisoners form with each other and with prison staff? Did prisoners comply or resist, and why? But over time I realised I also needed to ask new questions.

The environment I encountered was complex and sometimes disturbing. Some people in the prison were overwhelmed by remorse and self-disgust, which in most cases had preceded their entry into custody.

But a great many others – about a third of the people I had interviewed – steadfastly maintained that they were not guilty of the offences for which they had been sentenced. And other – again, a third – acknowledged that they had done something which was technically illegal, but about which they felt very little guilt.

Rape myths (Burt, 1980), both about the frequency and ease with which women make false accusations and the nature of ‘real rape’, were a significant part of public discourse, and went uncorrected by prison staff. There was a widespread sense in the prison that sexual risk was potentially everywhere, and prisoners and staff exerted a lot of energy observing their peers, looking for any signs of potential deviance. As a result, many prisoners were profoundly uncomfortable about existing in their bodies in the proximity of women. At the same time, some troubling sexual dynamics between prisoners went unmonitored by staff.

In the years that followed my fieldwork, and as the #MeToo movement increased the prominence of conversations about how to respond justly to sexual violence, I became increasingly uncomfortable about the disjunction between the public discussion about how to respond to sexual violence and what I had seen in prison.

I entirely agreed that we needed to do more in response to sexual violence, but I kept picturing the prison and questioning how that environment could possibly help. When writing the book, I decided to shift my focus and ask instead whether what the prison morally communicated – said to prisoners about who they were and what they had done – took us closer to or further from justice.

The book’s argument is pessimistic. I argue that the prison functioned as a denunciatory institution, sending messages which were so forceful, so shaming, so distorted and so permanent that they both discouraged prisoners from acknowledging what they had done and gave them tools with which they could evade responsibility.

It did this for two key reasons, both of which are symptomatic of modern punishment. First, modern prisons hide their morally communicative functions. In the prison I studied, this left very little space in which prisoners’ offences, the circumstances that surround them, or even just wider discussions about sexual violence and gender justice, could be discussed. Second, being convicted of a sex offence has permanent, personal and painful social and legal consequences. The prisoners I worked with were thus stained by their convictions, motivating them to do whatever they could to mitigate the stain.

Does this matter? I think so. Even if you think that prisons are an inevitable and necessary part of our social landscape (and not everyone does), it is troubling that we punish in a way which pushes people away from accepting responsibility for what they have done.

Philosopher Margaret Urban Walker (2006) argues that communities have three obligations when serious moral norms have been breached: to encourage the wrongdoer to take responsibility, to reiterate the importance of the broken standards, and to validate victims and their needs. My study of this prison suggests that modern practices of imprisonment do not help us meet the first of these obligations. More work needs to be done on what effect prisons have on the second and third.

References

Baird, V. (2020). 2019/20 Annual Report. Victims Commissioner. 

Burt, M. R. (1980). Cultural myths and supports for rape. Journal of Personality and Social Psychology, 38(2), 217-30. 

Mann, R. E. (2016). Sex offenders in prison. In Y. Jewkes, J. Bennett and B. Crewe (Eds.), Handbook on prisons (2nd ed, 246-64). Routledge.

McGlynn, C. (2010). Feminist activism and rape law reform in England and Wales: A Sisyphean struggle. In C. McGlynn and V. E. Munro (Eds.) Rethinking Rape Law: International and Comparative Perspectives (139-53). Routledge.

Ministry of Justice (2018). Offender Management Statistics Bulletin, England and Wales. Ministry of Justice. 

Walker, M. U. (2006). Moral repair: Reconstructing moral relations after wrongdoing. Cambridge University Press.

Biography

Dr Alice Ievins is a Lecturer in Criminology at the department of Sociology, Social Policy and Criminology at the University of Liverpool. Her research is about punishment and imprisonment, particularly for men convicted of sex offences, and she teaches on graduate and postgraduate courses on methods, punishment, crime and justice, and violence. She is on twitter at @AliceIevins.