Spot the rapist?

Rape has got nothing to do with 'normal' heterosex, explains Sara Hinchliffe of Feminists for Justice

But now the argument that rape is commonplace, and that there is little real distinction between rape and what many men see as sex, is being recycled by respectable feminists and taken on board by policymakers. Rape is increasingly assumed not to be a rare sort of violent assault, but an aspect of male sexual behaviour. The argument put forward by feminist theorists Liz Kelly and Jill Radford - that the law on rape should be reformed to take account of women's experience of sexual violence as 'normal' - has now been mainstreamed.

In Women, Violence and Male Power, Hester, Kelly and Radford argue that the distinction between consensual sex and rape is problematic. 'One of the major problems in proving rape in court is that much so-called consensual heterosex is coercive if not forced....The law suggests that clear distinctions can be drawn between violence and non-violence and thereby between abusive and "normal" men.' The debate about rape law reform has been heavily influenced by feminist contentions that there is an epidemic of rape, where only a tiny minority of cases is reported in the first place.

Special witness protection measures for complainants in rape cases announced in 'Speaking up for justice', the Home Office report released last year, are now going through parliament in the Youth Justice and Criminal Evidence Bill. In March the government announced a wide-ranging review of sex offences, including rape. Once a subject only of interest to feminists, rape is now at the centre of the legislative process and at the forefront of the public mind. And the agenda is being set by feminist reformers close to the ear of the New Labour government.

Why has this happened? Most commentators focus on the claim that the criminal justice system is failing to convict enough rapists. They point to the way that, although the number of reported rapes has trebled in the past 15 years or so, the absolute number of convictions has remained roughly constant. Consequently the attrition rate in rape cases has soared, as only about 10 percent of reported rapes result in a conviction. The argument is that so many women cannot be falsely reporting rape, and that the criminal justice system is simply failing to deliver justice for raped women. Many writers cite surveys (usually those carried out by Koss and by Russell in the USA) which claim that one in four women is the victim of rape. Natasha Walter's recent book The New Feminism cites figures claiming that 22 to 41 percent of women suffer from rape, to prove that the law cannot cope with women's experience of sexual abuse.

But a closer look at these frightening figures indicates that there is something other than an 'epidemic' of rape going on. The surveys tend to adopt bizarrely broad definitions of rape. For example, the Koss survey (carried out for Ms magazine in 1985) counts as rape cases where women answered 'yes' to the question 'have you had sexual intercourse when you didn't want to because a man gave you alcohol or drugs?'. As both respected academics and investigative journalists have pointed out, this elides a whole spectrum of experiences, from assault to entirely consensual sex. There can be no comparison between the woman violently raped while semi-conscious and drugged, and one who is bought a lot of cocktails, goes home with a man and in the morning wishes she had not. The latter used to be called seduction - but seduction is now seen as a crime that we had simply failed to recognise.

The fact that Koss' work is cited again and again as proof of widespread rape is an indication of a willingness to believe that rape and normal sex are closely related, if not one and the same thing. The figures seem to prove that women are being abused by the men they think of as their sexual partners. Rape is defined as the endpoint of a long 'continuum' of male violence, in which all heterosex is viewed as suspect.

It is striking that a large majority of the women categorised as victims by the researchers did not interpret their experience as rape. Take Koss' survey. Of those subjects she lists as rape victims, a startling 73 percent did not say they had been raped, and 42 percent of them had sex with their 'attacker' on a further occasion. Rather than indicating women's dissatisfaction with the criminal justice system, these figures would seem to indicate that women have a reasonably commonsensical assessment of their experiences - one which does not expect all sex to be wonderful and which anticipates mistakes, confusions and regrets.

But we should not underestimate the impact now being made by the argument that women should reinterpret many of their sexual experiences as rape. Take the rise of the 'date rape' phenomenon. According to Home Office figures, the percentage of rape cases defined as date rape has risen from 35 percent in 1985 to 50 percent in 1996. The proportion of 'stranger' rapes has decreased from 30 percent in 1985 to eight percent in 1996. The rise in date rape cases may well account for a substantial proportion of the rise in the overall number of reported cases. Of course, it may be the case that those thousands of women were brutally raped. But might it also be that many of these women are reporting 'rapes' that are more like sexual misunderstandings than violent assaults?

The old feminist campaign slogan that rape is an act of violence, pioneered by Germaine Greer and Susan Brownmiller, is rarely heard these days. Today, the feminist argument that is most influential is the one that says that rape is really about sex. According to Professor Sue Lees, 'calling rape violence fails to address the coercive nature of some male sexual behaviour' (Carnal Knowledge, 1997, p258). Lees is the nation's favourite professor, consultant and broadcaster on rape, and her ideas are highly influential. What she means is that 'some' men's 'normal' sexual behaviour is close to rape. She means that although they probably do not have the intention to rape, that's what they do.

But the legal definition of rape has always rested on the criminal intention of the man to commit the crime. The law has consistently held that a man cannot commit rape by accident, mistake or misunderstanding. This makes sense if you see rape as I do - as a violent assault, qualitatively different from our normal sexual experiences, however unsatisfactory they may be. This seems to me a matter of common sense; and it is a view still supported by Greer, who has argued that there should be no specific crime of rape, and that it should be prosecuted as assault.

The view that rape is a violent assault which has nothing to do with normal sexual experiences has much to commend it. It would help remove some of the stigma and guilt associated with rape victims. It would clarify the crucial point that rape is a violent crime carried out by men who wish to hurt and humiliate their victims. Rape is like having your fingernails pulled out at the roots; by contrast, seduction is more like a manicure. It can be well or badly done and you may not be happy with the results - but you agreed to have it done. But such a view of rape as a distinct violent assault is deeply unpopular among feminists today, who, like Lees, appear to want to argue that heterosex itself is problematic and necessarily abusive.

The leading feminists who have been at the forefront of identifying the 'epidemic' of rape have been particularly influential in articulating the agenda for reform, and in helping to change public perceptions of what rape is about. Feminist demands that personal life and private behaviour belong on the political agenda have coalesced with a social policy agenda under New Labour that does not hold back from intervening forcefully into individuals' private lives. Eroding the distinction between rape and normal sexual relationships and behaviour inflates both the rape statistics and the feminist campaigners' sense of their own importance. It also gives the government a more powerful argument for regulating people's personal relationships.

The claim that sex and rape are just part of one long continuum is likely to be revisited time and again as the law is reviewed. At the moment the law rightly draws clear distinctions between rape and sex, between rapists and lovers, between violent assault and consensual sex. If the feminist reformers get their way, we may well see these distinctions become increasingly blurred. How long before 'normal' heterosex becomes a crime?

Feminists for Justice is campaigning for civil liberties and women's rights in the rape reform debate. Contact Sara Hinchliffe at the Graduate Research Centre in Social Sciences, University of Sussex, Falmer, Brighton, BN1 9QM