Research

 

You will find a complete range of our monographs, muti-authored and edited works including peer-reviewed, original scholarly research across the social sciences and aligned disciplines. We publish long and short form research and you can browse the complete Bristol University Press and Policy Press archive of over 1,500 titles.

Policy Press also publishes policy reviews and polemic work which aim to challenge policy and practice in certain fields. These books have a practitioner in mind and are practical, accessible in style, as well as being academically sound and referenced.
 

Books: Research

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In Chapter 8, we draw together our analysis to reflect on the question: What is to be done about sexual history evidence? While we are sceptical of the capacity and ability of law to ‘solve’ the problems associated with sexual violence, we see some promise in a normatively embedded approach to law that matches the aspirations of the imaginary domain (Cornell, 1995), through which we continue to envision and strive for the equality and social justice we want to see. To this end, we gather the most promising options open to law and policymakers, as we see them, and reflect on avenues for further thought and research. Ultimately, doing the difficult and painstaking work that thoughtful research on sexual violence requires demands both dexterity and reflexivity in respect of the commitments we make to each other and ourselves, whether through or with the law or outside it, as well as to the horizons of possibility for the future.

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This chapter traces the emergence of sexual history as a concept of relevance and the form this has taken in relation to different conceptions of the harm/wrong in rape. This helps us to see both why a complainant’s sexual history came to be regarded as relevant to determining whether an offence has occurred and the varying ideas of what is meant by sexual history for these purposes. The historical and cultural contingency of rape as a crime is also highlighted, and law’s alignment with culturally male perspectives of female sexuality is exposed and analysed. By the end of the chapter, the reader will have a better understanding of what is meant by sexual history evidence and its doctrinal and fundamentally gendered roots. This lays the grounds for consideration of legal and policy efforts to restrict its use.

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This chapter explores the evolution and development of conceptions of rape, from a predominantly property crime, perpetrated against a (male) property holder, then to an offence concerned with protecting women’s chastity (viewed largely in terms of standards of morality/decency), and finally to the modern conception of rape as a violation of sexual autonomy. The chapter draws both on legal and non-legal materials to present a contextualised analysis of rape law in action from 1200 to the present day.

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The chapter locates the issue of sexual history evidence in a contemporary context, focusing on the way it was used in the Ched Evans trial in 2016 and the public debate this provoked. The public profile of the Evans case provides a compelling setting in which to raise the key questions the book wishes to address and to highlight their contemporary significance, including: What is meant by sexual history evidence? Why is it thought to be relevant in the context of rape trials? What good/harm does it do in relation to the broader quest for justice? How effective has the law been in repressing its inappropriate use? How accurate is the view of many commentators that it is now only used ‘exceptionally’? Uniting these themes and questions is a single overall aim: to cast new light on the way in which rape victims are apprehended, assessed and ultimately abandoned by the criminal justice system.

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This chapter tracks the development of a legal and policy impetus to restrict the use of sexual history evidence in rape trials through several similar common law jurisdictions. The chapter explores the law at the time of writing in England, Wales and Northern Ireland, the Irish Republic, Australia, Scotland, New Zealand, Canada and the United States. It assesses the (in)effectiveness of these legal reforms against their primary policy aims, not all of which are the same. The chapter highlights the difficulties reformers face in drawing a clear line between ‘legitimate’ and ‘illegitimate’ uses of sexual history evidence and the irrepressibility of narratives in trial discourse which promote the use of sexual history evidence in problematic ways. We highlight the limits of criminal justice, its normative underpinnings, and their historical and cultural specificity to demonstrate (and critique) the modes of and justifications for weighting the balance of justice so heavily in favour of the defendant.

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Chapter 6 probes basic assumptions underpinning claims of relevance and their allegedly logical or ‘common sense’ character. Drawing on perspectives from feminist theories of knowledge, the chapter asks: How do we know that sexual history is relevant, and what counts as ‘knowledge’ for these purposes? The chapter argues that the predominant way in which knowledge is generated and validated in law is problematic because it is based on the idea that what we know corresponds with what is real and, more importantly, that what is real is separate or independent from what we know. This representation/reality dichotomy, which is at the heart of modernist conceptions of knowledge, objectivity and truth, has been the focus of extensive critique by feminist and other critical scholars on the grounds that it enables the presentation of the knowledge of the powerful as objective and impartial when in fact it is subjective and interest-laden. Taking this critique of objective knowledge, the chapter shows how claims of relevance in a sexual history context are reliant on generalised assumptions and beliefs about women’s sexual behaviour which, upon examination, are often highly contestable.

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Chapter 7 explores the construction of subjectivities in rape law discourse, with a particular focus on the role and function of sexual history evidence as a subjectivity erasing and constituting tool. Within the context of the rape trial, we focus on unpacking the subjectivities of both the defendant and the complainant, considering the impact of the introduction of sexual history evidence on the construction of subjectivity and also on the types of stories prosecution and defence lawyers are able to tell about the defendant and complainant. In broad terms, we argue sexual history evidence is a useful and extraordinarily effective specular tool in the rape trial that functions to redirect the court’s attention away from the defendant while simultaneously activating a particular understanding of feminine subjectivity, which helps to undercut a linear story of violation a prosecutor might be trying to tell.

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The use of a rape victim’s sexual history as evidence attracted intense public attention after the acquittal of footballer Ched Evans in 2017. Set within the context of a criminal justice system widely perceived to be failing rape victims, the use of sexual history evidence remains a flashpoint of contention around rape law reform.

This accessible book mounts an important interrogation into the use of a victim’s sexual history as evidence in rape trials. Adopting a critical multidisciplinary perspective underpinned by feminist theory, the authors explore the role and significance of sexual history evidence in criminal justice responses to rape.

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In Chapter 5, we assess the veracity of the claim which reverberated around the legal and political establishment after Evans that sexual history evidence is only rarely or exceptionally considered in rape trials. Again, focusing primarily on empirical studies conducted in England and Wales, but drawing also on overseas studies, the chapter summarises significant past studies of sexual history evidence (for example Adler [1987] and Lees [1996]), identifies and details the various contemporary studies, from Kelly et al (2006) to Smith (2018) and Daly (2022), highlighting the methods applied, scope, limitations and gaps in current knowledge to present as comprehensive picture as possible of the extent of the problem contemporaneously. Chapter 5 is critical in establishing the persistence of problems with sexual history evidence notwithstanding legal reforms, staunchly problematising claims that this kind of evidence features only exceptionally in rape trials.

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This chapter focuses on the birth of the prison starting with an exploration of what punishment was in the 18th century before prisons were established. There is a brief discussion of transportation, the punishments that were used to inflict pain and the public spectacle of punishment – the death penalty. The chapter moves on to discuss what Foucault (1977) called the punishment of the soul and the centralisation of imprisonment as the main method of punishment. It presents the work of the Victorians, who are credited with the invention of the modern prison, using a series of examples to illustrate the shifts in approaches to punishment. There is also a discussion of early prison reformers, namely John Howard and Elizabeth Fry, as a way of introducing the notion that the current problems faced by prisons are not new but have been ingrained in their very fabric from their creation.

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