Understanding Rape Through the Consensus and Conflict Approaches - Research Paper Example

Understanding Rape Through the Consensus and Conflict Approaches This paper aims to investigate the crime of rape through the competing lenses of the consensus approach and the conflict approach to criminal justice. It begins by laying down the crucial concepts underlying the consensus and conflict approaches, wherein consensus approach perceives the criminal justice system as a means by which social control is established , and the conflict approach perceives it as riddled with class fault lines and a means to perpetuate existing power arrangements. The paper then analyzes how each of the approaches would explain the crime of rape, and where these differences lie. The paper focuses on two issues: the male-centric conception of rape in current law, and the rape and gender violence as linked to other categories of differentiation. The sociological theories that underpin our understanding of crime and punishment, as well as the justice system have long been the subject of debate by opposing ideological camps. The divergent approaches of “consensus” and “conflict” and what approach is the most appropriate lens with which to understand crimes remains to be discussed today, with the debates evolving to meet more modern and complex contemporary problems. It is imperative to begin by defining the concepts. Reid (119) defined the consensus approach as one that “views the emerging norms and laws of society as representative of the common feeling about what is right and proper; that is, they represent a consensus of views—a mechanism for maintaining social order.” It looks at society as a homogenous whole, without factions or frictions, and making a collective determination on what is right and what is wrong. For example, taking a very recent incident, the harsh punishments meted against the London street rioters might be deemed appropriate among proponents of the consensus theorists: indeed, the destruction of private property and petty larceny go against collective values and the State must bear down heavily upon those who seek to trample those values. In contrast, the proponents of the conflict theory look at society not as a homogenous whole, but as one wracked by class fault lines. Therefore, laws are not simply collectively-agreed upon rules that establish social order and ensure the efficient and harmonious functioning of society, they are a means by which those who have wealth and power ensure that existing hierarchical arrangements are perpetuated. Whilst Karl Marx did not theorize specifically on criminal justice, his philosophies illumine the conflict theory as applied to criminal justice. To quote Reid once more (120): In the conflict perspective of Marx and Engels, crime may be viewed in terms of the social structure characterized by social class conflict, which they saw as an inevitable by-product of capitalism. They argued that private ownership of property results in the poverty of some members of society, as those who own the means of production exploit those who do not. The latter turn to crime as a result of poverty. Consequently, proponents of the conflict approaches would tend to look at the penalties imposed by the orthodox criminal justice system, and the general manner with which justice is dispensed, as not class-neutral but as privileging those who are in the dominant classes. If the conflict theorists were to analyze the London riots, therefore, they would look beyond the issues of law and order, and explain the incident as indicative of a bigger social malaise: poverty, inequitable access to education, health care and other social services, and the like. Thus the stringent penalties imposed on the rioters would be perceived as another means of hegemonic social control that does not address the structural roots of the problem. The consensus approach has generally defined the paradigm of current criminal justice policies in the modern capitalist world. It is best manifest in statements such as that of David Cameron, the current Prime Minister of England: “We need a criminal justice system that scores a heavy line between right and wrong. In short, all the action necessary to help mend our broken society.” (Cameron: 2011). It is also well-represented in the pro-death penalty, anti-crime discourse, the War on Terror, the War on Drugs, the immigration debate. On the other hand, conflict theorists critique the consensus approach and claim that the criminal justice system as presently structured is a means by which the dominant class wields its power over the dominated class. Argues Horowitz, “the wielding of such power to a new social class is the purpose of the State, which in turn enters the historical picture as the central agency of coercion while posing as the agency of social consensus.” (1962: 178) Rape and Gender Violence It is easy enough to analyze certain crimes against the divergent lenses of the consensus and conflict approaches. For crimes such as theft, illegal immigration, terrorism, it is easy to tease out the clefts where the class biases can possibly emerge. For cases of rape and sexual violence, however, the analysis would require more complexity. At a superficial level, it would seem that the conflict and consensus approaches would overlap neatly – the consensus approach because of a blanket abhorrence towards crime, and rape being one of the vilest crimes there is; and the conflict approach, because of of the (valid) perception of rape as not simply about sex and violence, but about the power of a perceived dominant gender (male) over a perceived weaker gender (female). In a sense, rape is subjugation, and must be seen against a bigger social context wherein “dichotomous, mutually exclusive categories that shape our understanding of the world are gendered and they are key to the production and reproduction of violence at all levels” (Confrontini 2006, p. 333). However, upon closer look, there are very marked differences between how these two approaches perceive, understand and explain rape. As the consensus approach is rather straightforward, i.e., rape is forcing another person, usually a woman, to engage in sexual activity against her will – a reprehensible act that must be punished, we look at the dichotomies between the consensus and conflict approaches mainly by examining the critiques leveled against the consensus approach by the conflict approach. Male-constructed rape law Firstly, in the way rape law is constructed, the conflict approach tends to see the rape laws as gendered, and skewed against women. Feminists who have called for the reform of rape law have demonstrated that “the law of rape historically has regulated competing male interests in controlling sexual access to females, rather than protecting women’s interest in controlling their own bodies and sexuality”. (Roberts, 1993: 359). This is a fascinating proposition, and jibes with the conflict theory of criminal justice, which looks as criminal laws as having an agenda supportive of a dominant class. In the case of rape, the dominant class might be the male gender. This is further reaffirmed by other scholars. According to Schafran, (1993: 397): (I)n the law, men’s life experience has been treated as the norm. For example, rape laws are a codification of men’s fears of false accusations…. The “maleness” of law is expressed in many different ways – among them, laws and regulations; the cases that lawyers take or refuse; what is taught in law schools; what is taught in law schools; and how judges, juries and other decision makers interpret, apply and enforce the laws – and in many more areas of the law than is usually realized. A good example of this is the way rape cases are prosecuted and the evidence required to convict a rapist. Because rape often takes place in confined and private places, there is a greater probability in rape cases than in other criminal cases that there would be no other witness but the victim himself or herself to testify to the veracity of the claims. Hence, there is a greater deal of subjectivity and in many cases, the victim herself feels as if she is put on trial – with the truth and acceptability of her testimony dependent on how closely she resembles society’s perception of how a woman should be and behave, and how she fits into her “assigned gender role”. To understand this notion of assigned gender roles, it is imperative to consider the notion of gender as social construct and see how men and women are assigned different social roles and are treated or considered differently because of perceived biological differences. As expressed by Lorber (1994: 56) – Western society’s values legitimate gendering by claiming that it all comes from physiology – female and male procreative differences. But gender and sex are not equivalent, and gender as a social construction does not flow automatically from genitalia and reproductive organs, the main physiological differences of females and males. In the construction of ascribed social statuses, physiological differences such as sex, stage of development, color of skin, and size are crude markers. And yet, unfortunately, it is these crude markers that too often determine the outcome of rape trials. If a woman is tomboyish, unattractive, or in any other sense, short of the acceptable standard of “femaleness”, such “condition” has tended to cast doubt on the validity of the rape case – again looking at rape through the vantage point of the male. Only an attractive woman can arouse a man’s sexual libido, the logic might go. Yet another example is the persist notion that rape must be accompanied by physical force or violence, e.g., there must be signs of struggle. Not only is this wrong from a legal perspective, because it is blind to the many other ways that a women might be compelled to have sex against her will even without the use of brute force (e.g., blackmail), it also frames the issue of rape simply as an issue of physical violence, no different from other cases of physical assault. This fails to account for the power relations embedded within a crime of rape. Says Roberts, “The greatest challenge to feminist reformers has been crafting a legal remedy for this political aspect of rape’s injury to women – one that accounts for rape’s violation of both women’s bodies and humanity, and that grasps how rape is both criminal and derived from ordinary relations between men and women. (1993: 360)” And then there are cases of how rape and other forms of gender violence are made invisible against a larger backdrop of violence. This is particularly true in post-conflict settings, when there is an eager frenzy to assign individual criminal responsibility on war crimes and crimes against humanity. Gender violence and rape, when not used as a systematic policy or as a means to derive military advantage, are treated as lesser crimes, when the impact on the person is as great as state-perpetrated torture and the like. Distressingly, studies find that violence against women spike during a post-conflict situation. According to Chingkin and Charlesworth (2006:946): “This can occur due to post-traumatic stress, the need of men to reassert control in their homes, which had been headed by women during the war, or the sense of dislocation, powerlessness, and unemployment that combatants may face upon return.” The fact that some of these forms of ignored violence are more deeply-rooted, systematic and insidious, yet invisible from legal scrutiny should be of critical concern. Rape and other categories of differentiation Conflict theorists would also look at how the current rape law and rape prevention policies obscure other categories of differentiation such as race and economic class. There is a need to look into how these categories of differentiation interrelate with gender to create subordination and vulnerability. Iglesias (1996) says: The material impact on women’s lives when they acquiesce in this double standard and allow their choices to be driven by the psycho-social pressures of the “good mother” narratives is at least in the discourse of white feminism, economic subordination, increased dependence and greater vulnerability to their male partners… Cumulatively, these narratives help construct a society in which women’s sexual vulnerability is continually reproduced by the interpersonal practices, legal institutions, and public policies through which our sexuality is repeatedly assaulted and repressed. (915) In a sense, race and class and gender are similar in that it triggers the process of differentiation, and these differentials are legitimized and ratified in order to support existing power structures or arrangements. Race and gender and class differentials therefore, operate to strengthen one another and create filtering mechanisms that determine what people can get, and how, as well as the relationships between the group that gets and the group that does not. The classifications brought on by race, gender and class create monolithic homogenous aggrupations that highlights only similarities and obscures valid differences that need to be investigated. This affects even anti-rape and gender violence policies. Let us look at the example of law enforcement strategies against gender violence in a household context. Indeed, the agenda of law enforcement officials should not simply be to prevent crime for that one time, but also ensure that the offender would not relapse and the victim is protected in the long-term from similar violations. The Minneapolis Domestic Violence Experiment is a very interesting experiment because when the experiment was repeated in Miami, Milwaukee, Colorado Springs, Omaha and Charlotte, it was discovered that “compulsory arrest reduces violence against middle-class women at the expense of those (often black) who are poor.” (Sherman, et. al.: 1992, 443). The consensus-approach would be race-neutral and would apply law enforcement policies in a blanket manner. In contrast, the conflict-approach would be sensitive to these cleavages and differences. Conclusion In conclusion, whilst there is merit in understanding both approaches, it is perhaps not wise to adopt an overly-dogmatic view and choose just one exclusively. There are times when it is indeed wise to be sensitive to class fault lines and look at the structural problems of racial, economic, gender unevenness that have given rise to crime, as well as adopt a critical perspective on the laws as they are currently crafted. However, there are also times when these structural issues are used as a justification (not merely explanation) for criminal behavior and individual accountability must be exacted. The point is striking the correct balance – indeed, a statement easier said than done, and continues to be a challenge for these complex times. References Chinkin, C. and H. Charlesworth (2006) "Building Women into peace: the lnternational Legal Framework," 27 Third World Quarterly (5). Confortini C.C. (2006) “Galtung, violence, and gender: the case for a peace studies/feminism alliance”. Peace and Change 31.3. 333-367. Print. Horowitz, I. (1962). “Conflict and Cooperation: A Sociological Inventory”. Social Forces. 41 Soc. F. Lorber, Judith. Paradoxes of Gender. New Haven: Yale University Press, 1995. Print. Reid, S.T. (2008). Crime and Criminology. New York City: Oxford University Press USA. Roberts, D. (1993) “Rape, Violence and Women’s Autonomy”. Chicago-Kent Law Review. 69. 359-388. Print. Schafran, L. (1993). “Is the Law Male? Let Me Count the Ways”. Chicago-Kent Law Review. 69. 397-414. Print. Read More