Abhorred and under-charged: Why was rape so rarely charged in the past?

Laura Lammasniemi
Associate Professor at Warwick School of Law

I have spent the past few years researching the history of sexual offences trials. I have read hundreds of court files in various archives and scrolled through countless newspaper reports. Amid all these files and microfilms, there is one charge that rarely features: rape. In this post, I want to explore why rape was so rarely prosecuted in the 19th and early 20th centuries.

In the 19th century, rape was a serious charge, for which the death penalty had only been abolished in 1841. Even though sexual offending was considered culturally and socially indefensible, rape was a severely under-charged offence. Earlier studies (Simpson, 1984; Clark, 1987) show that rape was rarely prosecuted in the preceding centuries too and that the conviction rates were very low. When compared to other violent crime, in the 19th century rape charges still constituted only a small fraction of cases in the criminal courts (Wiener, 2004). There are multiple reasons for this.

Engaged research about child welfare and Indigenous parents

Robert Leckey
Faculty of Law, McGill University

This project emerged from discussions with alumni of mine who were volunteers at the Native Women’s Shelter of Montreal. Workers at the shelter were troubled by the negative experiences of First Nations and other Indigenous parents dealing with the child welfare system. They wondered if there was potential to improve the experience by using judicial mediation, or adapting procedure and practice. They wanted to know the views of state workers with experience in the child welfare system, namely, social workers, lawyers, and judges, so we interviewed a sample of them.

Tackling modern slavery: equipping ‘first responders’ in the settlement sector

Keren David
PhD Candidate, School of Social Sciences
University of New South Wales, Australia

Modern slavery is a complex and clandestine social issue that is poorly understood in Australia. Despite significant legislative reform enacted over the past few decades by the Australian government to criminalise different forms of modern slavery, these exploitative practices remain mostly hidden and are notoriously difficult to detect and address (Davy, 2017; Zirnsak et al., 2017). People with migrant and refugee backgrounds are particularly susceptible to exploitation due to various reasons, including limited language skills and unfamiliarity with legal systems in host countries (UN, 2013; Zirnsak et al., 2017).

Punitive Welfare on the Margins of the State: Narratives of Punishment and (In)Justice in Masiphumelele

Gail Super

Assistant Professor
University of Toronto, Department of Sociology (Mississauga), cross-appointed to the Centre for Criminology and Sociolegal Studies

Vigilantes have a complex relationship with the state. Although they are breaking the law when they inflict or threaten violence against suspected criminals or alleged norm transgressors, they often claim to be enforcing the law, or assisting the police, in the absence of the state. In my article, Punitive Welfare on the Margins of the State: Narratives of Punishment and (In)Justice in Masiphumelele, published recently in Social and Legal Studies, I develop the concept of punitive welfarism to explain the way violence is mixed with more caring approaches to crime and criminality in marginalized communities in South Africa.

I analyze the vigilante violence that erupted in 2015 in Masiphumelele, a densely populated former black township in the south of Cape Town, in the wake of the brutal murder of a 13-year-old in his home, by suspected drug users. This tragedy triggered a two-month long violent anti-drug campaign by the Masiphumelele Youth Forum, a loose formation of residents which emerged after the murder with the specific intention to expel drug-dealers from Masi. At least eight people (some claimed that it was 22) died at the hands of the vigilantes, others were expelled, and/or assaulted. The campaign eventually fractured and collapsed. There was disagreement among participants about what constituted a ‘dangerous drug’, and eventually rumours started to circulate that some of the vigilantes were themselves dealing in drugs. By 2018, when I conducted my research, many of the dealers had returned.

Public Trust in Hong Kong’s Judicial Independence Hangs in the balance

Dr Man Yee Karen Lee
Senior Lecturer in Law
Asia Pacific College of Business and Law
Charles Darwin University, Australia

Hong Kong politics has been in the news since 2019, when a so-called “Extradition Bill” – which would allow criminal suspects to be sent to Mainland China for trial – set off a wave of mass protests, dubbed the “Anti-extradition Bill Movement”, which lasted into early 2020. The initial peaceful protests later descended into often violent running street battles between the police and young protesters, which led to accusations of police brutality and saw public trust in the force – once deemed Asia’s finest – plunging. On the other hand, the Hong Kong government’s surprise turn to invoke a colonial-era emergency law to ban face masks – a symbol of resistance at the time – has further alienated frontline activists, most of them young people. Anti-government protests have become a collective memory since the emergence of Covid-19, and the imposition of the National Security Law on the territory by China on 1 July 2020. However, underneath the façade of stability is a society that remains restive and grows ever more distrustful of the authorities, which in recent times include, of all things, the courts.

The story behind ‘Performing Expertise’

Dr Emma Rowden
Senior Lecturer in Architectural History and Theory, Oxford Brookes University

Professor Anne Wallace
Adjunct Professor, La Trobe Law School, La Trobe University

Social & Legal Studies recently published an article that we co-authored, entitled ‘Performing Expertise: The Design of Audiovisual Links and the Construction of the Remote Expert Witness in Court’ (2018). This is the latest in a series of articles we have written, (some with other co-authors, some on our own and others individually: Rowden, Wallace and Goodman-Delahunty, 2011; Rowden et al 2013; Wallace, 2013; Wallace, Roach Anleu and Mack, 2017; Rowden, 2018; Wallace, Roach Anleu and Mack , 2018; Rowden and Wallace 2019b) that draw on qualitative data collected as part of a research project that explored the use of audio-visual links (‘AVL’) in Australian courts.

In this blog, we discuss the purpose of the article, situating it in the broader context of existing research into the use of this technology in courts.  We also reflect on our experience as researchers in the larger project and the nature and evolution of our collaboration as researchers from two different disciplines (law and architecture).

Domestic Violence Law is for Everyone: not lawyers and judges alone

Amrita Mukhopadhyay
PhD candidate, Western Sydney University

The idea for this paper arose from the picture above – a yellow board hanging precariously from the tree with the name of a person, a legal professional, who is authorized to register marriages. This was the only legal contact I could see as I wandered around the streets of Kolkata during the field study for a doctoral trip. I did not know any lawyers, or anyone who knew a lawyer, or who provided legal services, and did not know of any office I could go to obtain a copy of the Protection of Women from Domestic Violence Act 2005 (PWDVA).

Handling Criminal Cases: On the Interactions between Danish Criminal Justice Agencies and Defendants, Prisoners, and Victims

Louise Victoria Johansen
Associate Professor, University of Copenhagen

Social & Legal Studies recently published my article, ‘‘Impressed’ by Feelings – How Judges Perceive Defendants’ Emotional Expressions in Danish Courtrooms’, in the April 2019 print issue. The article presents some of my findings from a 3-year project about the articulation of differences within the Danish criminal justice system. It considers how judges perceive defendants’ emotions, and how these perceptions are influenced by expectations and evaluations according to defendants’ different social positions. Judges meet defendants with specific norms about how one should express feelings depending on one’s age, gender, ethnicity, etc. Using emotions as a lens gave my project the possibility of studying how categorization processes happen through specific social situations such as court trials, and through linguistic and bodily communication. The concept of ‘emotion’ thus offers a dynamic approach to intersecting categories such as gender, age, etc. by highlighting the processes through which they come about.

In the following, I reflect on the broader project that this article was embedded in, and subsequently, what the project brought with it.

Embodiment and Vulnerability in Policy-Making

Rebecca Hewer
Centre for Biomedicine, Self and Society
The University of Edinburgh

The summer of my doctoral fieldwork, which took place almost entirely in London, was hot. And – given that London is ill-prepared for extreme weather – it was also red-faced-and-sticky. My enduring memory of that time is of standing in Liverpool Street Station, staring up at black and yellow departure boards, as sweat dripped down the back of my legs. This is, in all probability, the synthesis of many memories: I was frequently in Liverpool Street Station, a hub for travel across a city I daily traversed in search of new participants. Casting my mind back to that time, I am also reminded of a measure of pain. On the hottest day of the year, as temperatures teetered on the precipice of 40 degrees centigrade, a close friend called to say that the cancer she had long been fighting had won, that she had stopped treatment, and was preparing to die. On the hottest day of the year, I closed the curtains and stayed at home. And towards the end of my fieldwork, I injured a tendon in my left foot and became entirely dependent on crutches. Unable to negotiate the vastness of London, I returned to my home, Edinburgh, and finished my final interviews via the less-than-ideal medium of Skype.

Access to Justice for Youth in the Public Sphere

Naomi Nichols
Assistant Professor, Faculty of Education
McGill University, Canada

In 2017, I published an article in Social & Legal Studies called: “The Social Organization of Access to Justice for Youth in ‘Unsafe’ Urban Neighbourhoods.” The article was produced as part of a larger project[1], spanning Canada’s two largest urban centres (Toronto, Ontario and Montreal, Quebec) and examining young people’s experiences of relational and procedural fairness across a range of public sector contexts: schooling, neighbourhood policing, child protection, social housing, social assistance and so forth. The project itself was comprised of two distinctive studies. The studies differed in terms of the specific research methods we used and the areas of research focus, which young people articulated. They were linked by the use of participatory institutional ethnographic research strategies and a shared focus on young people’s experiences of procedural and relational fairness on the frontlines of the public sector.