Victimization and Gender Research Paper

What Does Gender Mean?

It is beyond doubt that gender as a word is now increasingly used not only in everyday language and but also routinely in policies and practices. The word gender is frequently used in monitoring and other questionnaires in which people are routinely asked: what gender are you? However, in asking this question, those same documents follow this up by providing the respondent with the option of the choice of being either male or female: categories that denote sex. These practices illustrate, more profoundly than in any other way, both the embrace of gender as a word and the deep confusion between sex and gender that this embrace exemplifies. In many ways gender has become the word that has, in a rather unthinking way, replaced sex. In a chapter of this kind then it is important to appreciate what this author takes, not only the words sex and gender to mean, but also what they refer to as concepts.

Put simply, sex is a biological given. A person is either male or female. Whilst there might be some confusion about the nature of this biological given for a small percentage of people, being male or being female is a biologically ascribed attribute. Gender refers to the socially achieved qualities of being male or female, that is, being a man or a woman. More specifically the concept of gender alludes to socially constructed understandings of masculinity and femininity. So, whilst everyone is biologically either male or female, sociologically, being male or being female does not necessarily equate with being masculine or being feminine. These latter attributes refer to the social expectations associated with biological characteristics and they are expectations that may vary over time, space, and place. Moreover, it is important to remember that the term “gender,” by implication, refers to both men and women.

Why should being clear on the distinction to be made between these terms matter for understandings of gender, victimization and the criminal justice system? In part the answer to this question is important because of the observations already made concerning the substitution of the word sex for gender. The mere substitution of one word for another in policy and practice might at first glance suggest that, the questions that gendered understandings of the world pose, have been addressed. However, such an understanding would be superficial, since gendered approaches demand changes at the level of conceptual understanding as well as practices so informed, rather than merely a change in words.

One way of making sense of how the conflation between sex and gender has come about is to situate this within the broader policy drive for gender mainstreaming. In particular, it is through the conduit of gender mainstreaming that sexual violence has become a part of the policy agenda on a global scale, from the United Nations to the European Community, to national governments. Moreover it is this drive that sets a framework for policy development for their respective member states and/or organizations. Indeed Fraser (2009) posits that as a result of these activities, gender equality is now part of the social mainstream but has yet to be realized in practice. Whilst Fraser (2009) is addressing a wide range of equality issues (unequal pay and so on), the gap between theory and practice that she comments on is a very pertinent one for the criminal justice system. It is this gap between theory and practice, that forces a consideration of the implications for making sense of the ambivalent relationship between what is known about the relationship between gender and victimization and what it is that is done in the light of this knowledge.

By implication the question of gender challenges not only intellectual understandings of victimization but also what is to be done on the basis of those understandings. In addressing this challenge this chapter will do three things. First it will briefly reflect upon the domain assumptions associated with the concept of victim and victimology: the theoretical context. Second, it will map these concepts against the domain assumptions of the criminal justice system in which one particular kind of victimization that poses considerable challenges to that system will be considered, men and women who present themselves as victims of rape: the policy context. Finally it will reflect upon the extent to which the experiences of the rape complainant are matched by the criminal justice response: the gap between theory and policy.

The Theoretical Context: What Does The Term ‘Victim’ Mean?

When the word “victim” is gendered, as in French for example, being la victime, it is feminine. The links between this word and being feminine implies that the passivity and powerlessness associated with being a victim are also feminine qualities. This link is problematic for those working within the feminist movement who prefer to use the term “survivor” to try to capture women’s resistance to victimization. At the same time the tensions between being a victim or being a survivor are also problematic for others interested in criminal victimization since this either/or distinction fails to capture the processes of victimization. In other words it is possible that an individual at different points in time in relation to different events could be an active victim, as passive victim, an active survivor, a passive survivor, or at a point on a whole range of experiences in between. The label “victim,” a consequence, seems quite sterile when considered in this way.

There is, however, another problem associated with the word “victim” that is derived from appreciating the process whereby an individual becomes identified as a victim. This is connected with Christie’s (1986) concept of the “ideal victim.” In other words, there are certain assumptions attached to the label “victim” that mean not everyone actually acquires the label of victim. For Christie the “ideal victim” is the Little Red Riding Hood fairy story victim; a young, innocent female out doing good deeds, who is attacked by an unknown stranger. Indeed this “ideal victim” fits all the common sense stereotypes of the “legitimate” victim of rape, as will become clear in the example to be developed in this chapter. It can result in some people being “deserving” victims, that is acquire the label of victim very readily and easily, and others as “undeserving” victims and may never acquire the label of victim at all. This distinction between deserving and undeserving victims and how it impacts upon experiences of the criminal justice process is one of the issues that we shall be concerned with. This distinction suggests a hierarchy of victimization experiences with some people more likely to be recognized and embrace the label of victim. Such a hierarchy alludes to a third problem intrinsically associated with the term victim: it is also a highly gendered. As shall be seen men and women find themselves in potentially quite different places in this hierarchy even though they may have experienced the same kind of criminal victimization. It will be informative, then, to reflect upon how this concept has become gendered and what kind of impact this gendering has. But first, a few words on the interconnected domain assumptions of victimology.

The origins of victimology are located in the work of Von Hentig and Mendelsohn, amongst others. Like many other like-minded intellectuals of the late 1940s and the 1950s they were perplexed by the events that had happened in Germany during that time. That perplexity led Von Hentig and Mendelsohn to think about the dynamics of victimization, though being lawyers how they understood those dynamics was very much at the level of the individual and very much informed by their legal training. Both of them were concerned to develop ways of thinking about the victim that would enable the victim to be differentiated from the non-victim. In other words both were clearly suggesting that there is a normal person who, when the victim is measured against them, the victim falls short. Each developed victim typologies. Von Hentig’s typology worked with a notion of “victim proneness.” He argued that there were some people, by virtue of their socio-economic characteristics who were much more likely to be victims (in this case of crime) than other people. These he identified as being women, children, the elderly, the mentally subnormal etc. If this categorization is thought about from a gendered perspective it suggests that Von Hentig thought the normal person against whom the victim was to be measured was the white, heterosexual male. Von Hentig’s work has been very influential in the development of victimological thinking and is perhaps most keenly identified in the concept of “lifestyle” that has informed much criminal victimization survey work.

Mendelsohn adopted a more legalistic framework in developing his typology. His underlying concept was the notion of “victim culpability.” Using this concept he developed a six-fold typology from the victim who could be shown to be completely innocent, to the victim who started as a perpetrator and during the course of an incident ends as the victim. Arguably his typology is guided by what might be considered a reasonable or rational way of making sense of any particular incident given the nature of the law. Again gendered thinking suggests that his understanding of reasonable equates with that which the white, heterosexual male would consider reasonable. This is especially demonstrated in the later work that was generated from Mendelsohn’s ideas, in which victim culpability became translated into “victim precipitation.” The furore that greeted the publication of Amir’s (1971) work, whose analysis of police data on recorded rapes that suggested 19 % of these were “victim precipitated” stands as a case in point. That furore, driven by the feminist movement, railed against the way in which this work perpetuated myths about rape. However, as shall be demonstrated, such concepts, and the myths that they serve, still have considerable cultural and professional resonance despite their questionable acceptability intellectually.

From these beginnings the concepts of lifestyle and victim precipitation have formed the core of much traditional victimological work and illustrates the influence of positivism on victimology. This kind of victimology reflects an emphasis on measuring differences, seeing those differences as being somehow abnormal, and looking for explanations of those differences that lie outside of individual choice. In all of this, the development of the concept of lifestyle has been of central importance in perpetuating certain assumptions about criminal victimization and how to measure it so we shall consider its relevance to the discussion here in a little more detail.

The concept of lifestyle was developed initially and related to criminal victimization by Hindelang et al. (1978). This book presents a way of thinking about personal victimization in which lifestyle refers to “routine daily activities, both vocational activities (work, school, keeping house etc.) and leisure activities” (ibid: 241) and in which individuals are constrained by role expectations and structural characteristics that are reflections of their demographic positions (class, age, sex, ethnicity etc.). The authors argue that there is a direct link between an individual’s routine daily activity and their exposure to high-risk victimization situations from which personal victimization occurs. It is important to note the implicit acceptance of the view that the chances of personal victimization vary in relation to the amount of time spent in public places. This assumption does two things simultaneously. First it reflects a very male view of what constitutes a problematic arena for people: the public. As a result it hides the world of the private (all that goes on “behind closed doors”) as being an arena in which personal victimization might occur. In other words this assumption hides the world of women, children, and some men. Second, in focusing on what goes on in public it implicitly accepts the view that this is the context in which legitimate criminal victimization might occur. Thus the victim out doing good deeds who is attacked in public by a stranger stands as an “ideal victim” (Christie 1986) provided that the victim was out doing good deeds and did nothing to “invite” the attack.

Centering lifestyle reflects an interesting twist in the domain assumptions of victimology. No longer is the white, male exempt from victim status, as in the work of Von Hentig and Mendelsohn. The concept of lifestyle centers the importance of public space and places men in the foreground of potential victimhood with women and children in the background, in the world of the private. However, despite the potential of this assumptional twist, the early criminal victimization work that emanated from this development did little to build on its potential for problematizing men and masculinity. Indeed, it was not until the early 1990s, arguably as a consequence of the input of radical feminism, that the conundrums that this work generated (for example, the empirical finding that whilst men were most at risk from criminal victimization they expressed the least concern about it) were subjected to closer (gendered) scrutiny.

What feminist work did was, not only to offer a different conceptual apparatus, informed by the concept of patriarchy, with which to understand women’s lives in general, it applied that apparatus to the crimes that affected women’s lives. Those crime that occurred in private, behind closed doors; mainly rape and “domestic” violence. From this viewpoint the key variable in understanding women’s experiences including their experiences of criminal victimization is, therefore, men’s power over women. Put simply radical feminism clearly focuses attention on all those criminal victimizations that go on in private between people who are for the most part known to each other. This included rape, sexual assault, and domestic violence. The seminal work of Russell (1990) marked a key turning point in placing these acts on the criminological and victimological agenda, aided by the conceptual development of a ‘continuum of sexual violence’ introduced by Kelly (1988). This work rendered men, and their relationship with masculinity, as centrally problematic to understandings of the nature of women’s victimization. In so doing it made men as victims of such violence invisible (see also Graham 2006). Conceptually this in itself was problematic since it did not resonate with the relatively small volume of work that suggested men too could be victims of such violence and that it occurred in the community as well as in prison.

In one intervention on this invisibility, Goodey (1997) used the phrase “big boys don’t cry” to help explain how it was that young men struggled with being victimized. Put simply it contradicted their understanding of themselves as men. The epidemiological work of Coxell et al. (1999) on non-consensual sex between men, the pioneering work of Lees (1999) on male victims’ experiences of the criminal justice system, the in-depth interviewing work with male victim of rape reported by Allen (2002), all add both quantitative and qualitative depth to our understandings of men’s differential experiences of violence, victimization, and their responses to it. More recently further detail has been added to this picture in appreciating how blame works for male and female victims of rape (Davies et al. 2006), the continued efficacy of the stranger rape stereotype as mediated by gender (Anderson 2007), the comparative role of shame in reporting behaviors (Weiss 2010), and the persistent inability of the law to recognize the gendered nature of the act of rape i.e. that it includes men as victims (Graham 2006). The work referenced here affords just a snapshot of the ongoing intellectual engagement with rape as both a male dominated act and a male experienced process of victimization.

To summarize, whilst much victimological work leaves the impression that victims are not likely to be male, this is clearly empirically not the case. Much male violence is committed against other men, and in recent years there has been an increasing awareness that much of that male violence against other men is also sexual violence. So quite clearly men can be victims even if they have been relatively hidden from the victimological gaze. The empirical fact of their (sexual) victimization, however, has not only been relatively invisible in conceptual understandings of victimization, but also in criminal justice responses to such victimization. The next section considers the extent to which, despite this intellectual context, gendered understandings have permeated or failed to permeate policy responses to sexual victimization of both men and women.

The Policy Context: Implementation Failure?

Charting the nature and extent of sexual violence and developing appropriate policy responses to this problem is fraught with difficulties. Nevertheless is it the case that much effort over the last 20 years has been focused on improving the response of all the criminal justice agencies to the rape victim across many different jurisdictions. These improvements have ranged from the development of specialized police units designed to respond to rape complainants, to the establishment of specialized investigative procedures, specialist health responses, to changes in the law. In addition legislation designed to curtail the use of questioning about the past sexual history or character of complainants has been introduced both in the UK, Australia, New Zealand, and United States of America. Nevertheless the conviction rate for rape cases in England and Wales remains low at 5.6 %, a finding replicated across Europe and elsewhere (Daly and Bouhours 2009). Her Majesty’s Crown Prosecution Service Inspectorate Thematic Report published in 2007 attempted to offer some understanding of why the conviction rate remains so low in England and Wales despite the evidence that the reporting of complaints of rape has increased. Its findings reveal that, of 573 recorded complaints of rape (and it must be noted that all these cases involved female complainants), in 491 (85.7 %) of the cases the suspect and the victim knew each other, in 102 of these cases (20.8 %) and the victim withdrew the charges, leaving 398 cases. Of these the suspect was charged in 160 cases, the main reason for not charging was insufficient evidence (229 cases). Of 160 cases in which the suspect was charged, 75 case files were examined further that revealed that out of these 75 cases there were 39 convictions, 20 as a result of a guilty plea, 19 on the basis of a jury decision.

This snapshot of what happens to cases in England and Wales is illustrative of problems experienced across a range of jurisdictions. It points to not only the problem of attrition but also the points at which cases of rape pose problems for the criminal justice system. This data points to at least three of these critical moments; the point at which the incident is reported (this involves the police); the point at which a case for charging a suspect is being made (this involves the Crown Prosecution Service), and the point of conviction (this involves the court and the jury). Indeed the Stern Review (2010: 8), of how rape is handled in the UK, concluded that despite these problems the

…policies are the right ones and we have only a few changes to recommend. In some areas the policies are applied consistently and with commitment by all involved. The policies are not the problem. The failures are in the implementation.

Is this analysis correct? The following summary of the Warboys case (Brown and Walklate 2011: 2–3), provides some insight into why this analysis might not be the appropriate one.

Warboys was the driver of a London black cab. He was first identified as a suspect in cases of sexual assault reported to the police in July 2007 but it was not until February 2008 that he was charged with a large number of such offences dating back to October 2006. He was found guilty and sentenced in April 2009. Some 80 victims contacted the police after Warboys’ arrest, many of whom had not previously reported their assault to the police. The Independent Police Complaints Commission’s (IPPC) enquiry into this case noted that not only there were failures to comply with Standard Operating Procedures for the investigation of rape but also systemic failures to identify and link offences. The IPCC concluded that there had been a poor initial investigative response, a failure to trust victims, failures in front line supervision, lack of cross checking systems to link similar offences, and they found that the detective sergeant missed crucial investigative opportunities. Such a catalogue of failings is not peculiar to the UK. Jordan (2008) documents a similar set of failings during the investigation of a case in New Zealand that revealed majors flaws within policing practices and the wider criminal justice system.

As has already been suggested, embedded here are patterns of a bigger picture relating to sexual violence, like for example, under reporting, attrition of cases as they drop out at key stages of the criminal justice process, disbelieving of complaints, and giving men’s explanations for what happened greater credence. For example, in England and Wales the British Crime Survey reveals that a significant number of victims still tell no one about their assaults with only 11 % making a report to the police (Povey et al. 2009). Indeed in Brown et al. (2010a), two-fifths (40 %) told no one about their experience and while men and women were equally likely to tell someone, who they told varied somewhat. Of those who did tell, the most common confidantes were friends, relatives or neighbors (44 %). The way in which women’s (and men’s) experiences of rape and sexual assault are silenced, within and out-with the criminal justice system, is subjected to critical analysis by Jordan (2011). This is an analysis that needs to be considered against criminal victimization survey data. For example, Povey et al. (2009) also report that nearly 1 in 4 women (23.3 %) and 1 in 33 men (3 %) men had experienced some form of sexual assault (including attempts) since the age of 16. For rape (including attempts) the prevalence was nearly 1 in 20 women (4.6 %) and 1 in 200 men (0.5 %) since the age of 16. Taken together, findings like these speak volumes as to the nature and extent of such violence and the wider (lack of) recognition of it.

As the thematic report referenced above indicates much work remains to be done in supporting complainants of rape through the criminal justice process. However this need for support needs to be put into a wider context as Jordan’s (2011) analysis suggests. Complaints of sexual assault face challenges in being heard and responded to in a wider cultural context. For example, an Amnesty International sponsored poll (ICM 2005) revealed that 26 % of those asked thought that a woman was partially or totally responsible for being raped if she was wearing sexy or revealing clothing, and more than one in five held the same view of a woman who had had many sexual partners, with 30 % “blaming the woman” if she was drunk. These findings echo those of Brown et al. (2010b) and highlight the kinds of attitudes that are exploited in the criminal court during the course of a trial.

Women’s experiences of the rape trial arguably are still governed by the need to be beyond reproach or blame in every respect especially in the witness box. The process of cross-examination in the witness box is, more often than not, designed to render a woman’s evidence less than believable on the grounds of her womanhood rather than the quality of her evidence. It is well established that trials involving sexual offences requires counsel to test the credibility of complainants. This, of course, is a strategy not confined to sexual offence trials though it is argued that the impact of such questioning is qualitatively more traumatic in these cases than in those involving other kinds of offences. Moreover, Burman (2009: 394) reports that, despite legislative changes made in Scotland intended to improve women’s experiences of the witness box:

The 2002 Act has clearly not gone in the direction intended; it has resulted in neither a decrease in the use of sexual history and character evidence overall, nor a tighter focus on the type of questioning that is allowed. Rather, it has resulted in the introduction of much more sexual history and character evidence than under the 1995 Act. The proportion of trials with applications to introduce prohibited evidence have increased markedly, questioning on sexual history and character is now sought by both the prosecution and the defence, the numbers of multiple applications have doubled and the “belt and braces” approach adopted by the defence means that the questioning or evidence sought in written applications is now far more detailed and extensive than that sought in verbal applications made during the trial under the 1995 Act.

Whilst less well documented, the finding reviewed above can also be translated to men’s experiences of the criminal justice process as victims of sexual assault. Rumney (2008: 4) reports that “While some men do report a positive response, some police officers and other criminal justice professionals appear to attach to gay men or those they perceive as gay highly questionable assumptions regarding credibility, trauma and truthfulness.” Of course, assumptions in respect of homosexuality, and indeed, experiences of homophobia have the potential to permeate men’s experiences of reporting sexual assault despite the empirical data pointing to the fact that the majority of sexual assaults are committed by heterosexual men on other men both within and out-with the context of prison. As Lees (1997: 106) has commented:

One of the most damaging insults to be thrown at a man is to call him a woman, a bitch or a cunt. The act of coercive buggery can be seen as a means of taking away manhood, of emasculating other men and thereby enhancing one’s own power.

Experiences at court, then, can not only challenge a woman’s testimony based on her qualities of womanhood, they can also challenge a man’s based on his qualities of manhood. In each case these qualities are measured against normal forms of femininity and normal forms of masculinity. These are forms that are permeated with assumptions around what constitutes normal heterosexuality. Thus, in facing questioning at court, the issue of penetration, various legislative interventions in different jurisdictions notwithstanding, still remains crucial to a rape trial: who did what to whom with what implement. The focus on the penis characterizes that which Smart (1989) has called the celebration of phallocentrism. A celebration that tells us much that is implicit in the law with respect to gender and why the rape trial proceeds in the way that it does.

The celebration of the penis privileges a male centered view of both female and male sexuality. Women do not know what they want; they have to be persuaded. So a woman whose dress or behavior challenges this assumption is problematic. Men cannot be blamed for acting on deep-seated sexual needs: in the face of temptation these are uncontrollable. As a result the few who are convicted must be the psychologically deranged “other men” in whose name, men as a group, dare not speak. Moreover it is this manhood that proves equally problematic for the male complainant of rape. As Allen’s (2002) typology of men’s reactions to having been the victim of rape, clearly indicates the necessity of understanding these through the lens of what it is to be a man. Thus presumptions surrounding appropriate manhood (masculinity) render the male complainant of rape hugely problematic for the criminal justice system in general and the criminal trial in particular, given the implicit celebration of (heterosexual) phallocentrism commented on above. Naffine (1997: 119) suggests:

It is not only women who suffer from the culture of the strong man, though it is women who are consistently dispossessed by it….. There are a range of other masculinities which are simultaneously implied and then cast out. They are by implication, rendered unnatural and undesirable. Thus are the men who depart from the masculine ideal rendered silent.

Thus sexual assault and rape are framed by deep-seated understandings of who the law is for and what can be achieved in the recourse to law. This frame inexorably regresses to very conservative understandings about who can do what to whom with what kind of implement. Such conservatism inherently buys into ideal typical notions of victimhood that are differently informed for women and for men, but in each case can result in a silencing of their respective voices. The question remains: is this resistance to gendered understandings of sexual violence, implementation failure, as many policy and practitioners would claim, or reflection of a deeper problem?

Current Issues And Controversies: Implementation Failure Or Conceptual Failure?

The foregoing discussion offers an overview of the extent to which addressing sexual violence, rape in particular, has been responded to as a social problem. This overview clearly implies that whilst there has been a good deal of policy activity directed towards addressing sexual violence against women, there has been less attention paid to the problem of sexual violence against men. Moreover, despite the desire to improve policy and professional responses to women as complainants of sexual violence, whilst much is promised, much also remains to be delivered, leaving responses to men as complainants arguably further in the shade. This overview also implies a deeply held believe that the criminal justice systems could “do better”; that is, could implement agreed policies much more effectively. A good deal of the debate around how a better response might be achieved has focused on the question of attrition and, what attrition actually means, which is neither simple nor straightforward. Yet it is also important to note that criminal justice system policies and practices does not act within a vacuum. As the foregoing discussion has also intimated, there are inherently conservative images embedded in the law around sexuality and difference and there are similarly conservative views articulated in public opinion around the factors that contribute to sexual violence. Moreover such views are held about men and women as victims and perpetrators (Anderson 2007). In the face of such conservative forces, implementation failure seems not only a likely outcome but also, arguably, an unfair charge.

Mooney (2007: 269) comments that the values whereby men’s violence to women is sustained in the face of public imperatives otherwise “exist throughout the width and breadth of popular culture.” For example, consider the vicarious pleasure gained by some young males in witnessing violence on a “good night out” (Winlow and Hall 2006). Thus violence becomes part of everyday life; as is the case of a woman living with violence who judges that the risk of poverty and homelessness are worse than the violence she knows she will be subjected to. This is the ordinary violence of everyday life. In fading out the voices of those who know this, as Jordan (2011) suggests, the ordinariness of violence is rendered absent. So too is the ordinariness of the (sexual) violence that men commit against each other both within and out-with the prison. So to answer, Mooney (2007) it is with the ordinary nature violence in which it can be both public anathema and a private common place all at the same time. It is within these tensions that the problems of the “implementation gap” are to be found.

Conclusions And Future Research

In a recent commentary on her own conceptual intervention on sexual violence Kelly (2011: xxiii) suggests that “neither recognition nor redistribution provide an adequate framework for understanding the persistence of gender inequality, VAW [violence against women] and the intersections involved” and that the apparent policy failures that have ensued from over 20 years of campaigning, “need new theoretical framings, which place the continuum of violence at the core of gender inequality.” In other words, what we have witnessed, and what has been articulated in this chapter, is not implementation failure, but conceptual failure. This does not necessarily mean that current policies should be dropped but does mean that greater recognition that gender refers to men and women is required. By implication, more work is needed in considering sexual violence from a gendered perspective. Work that does not assume what might be known about women’s experiences also translates to men’s, but considers how a gendered understanding might transform their respective experiences of the criminal justice system as both women and men as victims, offenders and professionals working within the criminal justice system.

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