Understanding acquittals in rape cases: Whose criminal justice system is it anyway? by Arushi Garg
Arushi Garg is a current DPhil student at the Centre for Criminology and a stipendiary lecturer in Tort Law at St Hilda’s College. In July 2019, she will take up a post as lecturer in criminal law at Sheffield University. Arushi tweets @arushigarg90
My doctoral project provides a socio-legal account of rape prosecutions in Delhi. It explores the hypothesis that rape adjudication is best understood by examining the implementation of the law in its current postcolonial context, rather than by referring solely to its formal scope. Drawing on postcolonial feminist theory, I ask: What are the factors associated with acquittal and conviction in rape prosecutions in Delhi? The data sources I use to answer this question include trial court judgments, ethnographic observation of rape trials and interviews with victims, lawyers, judges and victim-support personnel.
I have published part of my research findings elsewhere. Here, I focus on what I found was the most prominent factor associated with acquittals in rape cases. In more than half of the cases I analysed, the defendant was acquitted where the victim refused to support the prosecution. There can be many reasons for why this happens. On one hand, the defendant might have intimidated or threatened the victim. Pressure might also be exerted by members of her own family, such as where they have accepted a bribe from the defendant. However, there may be other cases where the victim feels less invested in the idea of ‘legal justice.’ This usually happens in two ways.
First, the victim might become alienated from the legal system on account of the secondary victimisation. She might be treated with disbelief, contempt or hostility by criminal justice officials who endorse regressive, stereotypical beliefs about sexual violence (popularly called rape myths). She may also have to expend a great amount of time, energy and money in keeping track of the progress in the criminal case. Secondly, victims might have different priorities from those presumed by the legal system. For example, in some cases, sexual assault is perpetrated to punish women who assert their material rights against the defendant. A successful rape prosecution will at best result in the defendant going to prison. But it may be more important for victims to have their property dispute with him resolved; to regain access to their housing; to secure repayment of the debt owed to them. If the defendant offers to resolve this property dispute in exchange for their support during the trial, they may choose to accept this offer. Within the limited choices available to them, they might judge this to be the most rational option available to them.
These factors play out in a society with multiple social stratifications, such as caste, class and disability. Their impact is not felt in the same way by all women. For example, women with precarious employment may be especially affected by the material costs of supporting a case. If they are daily wage workers, each day spent supporting the investigation or prosecution is a day for which they will not get paid. My thesis thus brings out the importance of understanding how intertwined legal and social justice are. It emphasises the need to render the legal system accessible for all women, and not just the privileged few.
Women’s experiences of immigration detention and deportation, by Dr Alice Gerlach
Alice is a Lecturer in Criminology at Oxford Brookes University in the School of History, Philosophy and Culture. She completed her DPhil at the Oxford University Centre for Criminology in 2018. Alice tweets @AliceGerlach
I conduct research in the sub-field of border criminology, which is interested in the intersection between immigration control and criminal justice. Specifically, my work concentrates on the experiences of women who have spent time in immigration detention in the UK. For my DPhil dissertation I interviewed women in Yarl’s Wood Immigration Removal Centre, as well as others who have been released and dispersed in the community. I also worked with women who had been deported from Yarl’s Wood to Jamaica. Detention, all the women made clear, is a painful and distressing experience. Specifically, they reported feeling as though they were not treated with dignity and respect. For many, the effects of their confinement under immigration powers are long-lasting, with enduring negative impacts on their self-worth and self-esteem.
During my research I worked with local civil servants in Jamaica to suggest some alternatives and new ideas to the British High Commission, who run programs supporting some of those who are returned to the island. This work sought to operationalise some of the issues raised by the women I interviewed, for example, to provide funds to help women with the educational costs for their children. In the UK I met with civil servants from the shadow Home Secretary’s office to feedback my findings on the experience of women in immigration detention, providing additional evidence for an urgent question in the House of Commons on Yarl’s Wood immigration removal centre.
Since finishing my doctoral work in July 2018, I have taken up a lectureship in Criminology at Oxford Brookes University where we are developing a new undergraduate degree in criminology. There alongside my colleagues I am thinking about how to integrate issues of gender into teaching alongside policy-oriented scholarship. Later this year, I hope to return to Yarl’s Wood, with Mary Bosworth, to continue our survey research there on the quality of life, not just focusing on the women this time, but also on staff perspectives as well.
Sentencing Mothers to imprisonment, by Dr Shona Minson.
Shona is a British Academy postdoctoral research fellow at the Centre for Criminology. Shona tweets @ShonaMinson.
Beginning working life as a barrister practising family and criminal law, I moved into academic research following a career break to have children. I was perturbed by the gendered nature of imprisonment and the ways that a prison system designed by men for the detention of men, is used to punish women. Women are such an afterthought in the system that as late as 1997 (according to Lord Ramsbotham, then Chief Inspector of Prisons), injuries to women in prison were recorded on a diagram of a man’s body. The punishment and practice of imprisonment do not take account of how the deprivation of liberty affects women, particularly as mothers and primary caregivers. I found little research on the experience of mothers in prison, and the impact of their imprisonment on their children. A view of ‘offending’ mothers as ‘doubly deviant’ causes their motherhood and children to become invisible within criminal justice proceedings.
When children are separated by the state from their parents in family courts the welfare of the child is the paramount consideration of the court, and the child is provided with legal representation. Yet criminal courts separated children from their mothers without giving any consideration to the child’s welfare or the impact of removing a mother from her child. The Corston Report (2007) found that of 1400 women serving a first sentence in HMP Holloway, 42 did not know who was looking after their children. With such matters in mind, I undertook DPhil research using a child’s rights framework to analyse the place of children in maternal sentencing decisions. I used semi-structured interviews with children whose mothers were in prison; the adults who were caring for the children in their mothers’ absence; and Crown Court judges. I found that children suffer harm as a consequence of their mothers’ imprisonment, and there is significant stigma surrounding a mothers’ incarceration. Although Sentencing Guidelines and case law allow sentencers to consider the impact of a sentence upon a defendant’s child(ren), sentencing practice is inconsistent, and judges have little understanding of the ways in which a child’s life and relationship with their mother is changed through imprisonment. Nor do sentencers consider the impact of a sentence of imprisonment on the people who take on the care of the children in the absence of the mother and this caregiving disproportionately affects women.
I wanted my research to bring change for women and their children. So, funded by an ESRC Impact Acceleration Award and the Prison Reform Trust I worked in collaboration with the Judicial College, the Magistrates Association, the Criminal Bar Association, The Law Society, and the National Probation Service to create a series of films and briefing papers: ‘Safeguarding Children when Sentencing Mothers’. The four films explain the law and the impact of maternal imprisonment on children and are aimed at four different audiences; women facing sentence; sentencers, advocates, and probation staff. Launched in January 2018 the films are embedded in training for the judiciary, magistracy, and probation and the film for women has been widely circulated by organisations working with women in the criminal justice system and on YouTube.
In March 2018 I invited the Joint Committee on Human Rights to consider conducting an inquiry into the right to family life of children whose mothers are imprisoned. That inquiry is now underway. I am hopeful that recommendations from the Committee will improve the provision of services and support for children whose mothers are in prison.