“Silly Girls” and “Nice Young Lads”
| DOI | 10.1177/1557085115578163 |
| Date | 01 July 2015 |
| Published date | 01 July 2015 |
| Subject Matter | Articles |
research-article2015
Article
Feminist Criminology
2015, Vol. 10(3) 279 –298
“Silly Girls” and “Nice
© The Author(s) 2015
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DOI: 10.1177/1557085115578163
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Vindication in the Perceptions
of Medico-Legal Practitioners
in Rape Cases
Lesley McMillan1 and Deborah White2
Abstract
In this article, we explore perceptions and presumptions in relation to rape, raped
women, and rapists, among medico-legal professionals who perform forensic medical
examinations in rape cases. We draw upon data from in-depth interviews conducted
with forensic medical examiners and forensic nurse practitioners in one area of
England. Findings reveal that many of these personnel hold particular views centered
broadly on the vilification of victims and the vindication of perpetrators. We conclude
that these perceptions and presumptions may hold concerning implications for both
victim experiences and evidentiary and judicial outcomes.
Keywords
rape, sexual assault, criminal justice, forensic evidence, medico-legal
Introduction
Following years of feminist efforts and campaigns addressing sexual violence and the
failure of states to adequately respond, the rape of women is still prevalent across the
globe (Htun & Weldon, 2012; Kessler, Sonnega, Bromet, Hughes, & Nelson, 1995;
UNICEF, 1997). Despite some successes resulting in significant legal and procedural
reform (Corrigan, 2013; McMillan, 2007) and generally improved institutional pro-
cessing of rape cases in many jurisdictions, judicial outcomes remain poor with low
1Glasgow Caledonian University, UK
2Trent University, Ontario, Canada
Corresponding Author:
Lesley McMillan, Professor of Sociology and Criminology, Glasgow Caledonian University, Cowcaddens
Road, Glasgow G4 0BA, UK.
Email: Lesley.McMillan@gcu.ac.uk
280
Feminist Criminology 10(3)
conviction rates and high levels of case loss (attrition) (Harris & Grace, 1999; Lea,
Lanvers, & Shaw, 2003; McMillan, 2010, 2011). In trying to account for the lack of
justice for raped women, a great deal of research has been conducted on the policies
and practices of legal and law enforcement professionals, examining the ways in
which these may serve as barriers for those navigating criminal justice systems (see,
for example, Jordan, 2001, 2004; Kelly, Lovett, & Regan, 2005; McMillan, 2010;
Temkin 1997, 1999; Temkin & Krahe, 2008). It has also been shown that the attitudes
and beliefs held by criminal justice personnel can influence women’s post-assault
experiences and frequent inclinations to drop out of the process, thereby determining
the fate of their cases.
With respect to attrition, the majority of rape cases are lost at the early investigative
stages of the justice process (Harris & Grace, 1999; Lea et al., 2003; McMillan, 2010)
as a result of victim withdrawal, as well as decisions by police that certain cases are
problematic or false. Some research has demonstrated the perpetuation of certain ste-
reotypes among police officers (Kelly et al., 2005; McMillan, 2010; Temkin, 1997,
1999) and “a culture of suspicion” found even in those who are specialists in rape alle-
gations (Kelly et al., 2005, p. 51). Lea et al. (2003) reported that although many officers
were sympathetic to rape victims there was still evidence to suggest that a number held
what the authors called “traditional views” of rape and rape victims and these officers
were inclined to more frequently suspect false allegations and/or attempts to seek atten-
tion. These findings are particularly notable as sensitive and sympathetic handling of
cases is vital to women’s experience of reporting rape and likely to influence whether
or not they choose to withdraw from the legal process (Jordan, 2001; Kelly et al., 2005;
McMillan & Thomas, 2009; Temkin, 1997, 1999). This underscores the significance of
the initial institutional phase for both victim experience and case outcome, and rein-
forces the need for research into the actors involved at this point.
The Forensic Medical Examination
A key component of the early investigative stage is the forensic medical examination.
The purpose of the examination is twofold: evidence collection from the victim’s
body, which may take the form of observation of anogenital and extragenital injuries
and collection of swabs and specimens (including semen, sperm, urine, and blood),
and health care for the victim (Du Mont & White 2007; Mulla, 2011). Medico-legal
evidence is used as a means of corroborating a victim’s account of a sexual assault (Du
Mont & White, 2007). It may be utilized to determine the use of force, identity of an
assailant, resistance, recent sexual activity, and the inability to consent to such sexual
activity due to incapacitation through substance consumption. Although practices may
vary, the documentation and bodily evidence collected are typically sealed and given
to police for possible use by investigators and prosecutors should the case move for-
ward. The common belief is that this evidence can be instrumental in determining
judicial outcomes (United States Department of Justice, 2013).
Historically, the forensic medical examination was seen largely as a means of col-
lecting evidence for the justice process, and the care of victims was not a key priority.
McMillan and White
281
However, as a result of feminist critique over the last several decades that challenged
the response given to rape victims in many locations, the scope and nature of the foren-
sic medical examination has changed to often incorporate both evidence collection for
investigation and prosecution and the care and medical treatment of the rape complain-
ant (Du Mont & White, 2007; Rees, 2010). As such, the role of the forensic medical
professional is generally regarded as a dual one. For some, this has resulted in a tension
arising from the contradiction inherent in simultaneously “objectively” gathering evi-
dence and caring for and supporting the complainant (Du Mont & Parnis, 2000, 2001;
Kelly, Moon, Bradshaw, & Savage, 1998; Kelly, Moon, Savage, & Bradshaw, 1996;
Parnis & Du Mont, 2002, 2006; Rees, 2010; Savage, Moon, Kelly, & Bradshaw, 1997).
In England, where the research discussed in this article was carried out, the organi-
zation of forensic medical services has historically been the responsibility of police
rather than health care. Traditionally, doctors were contracted by police to carry out
examinations, which largely prioritized the forensic aspect over the medical or care
elements (Pillai & Paul, 2006). Early studies of forensic intervention in England in the
1980s revealed several problems with this approach, including a large number of
examinations being conducted in police stations rather than specialist suites or health
care settings, a shortage of female physicians, and the frequently insensitive manner of
the attending physician (Corbett, 1987; Women’s National Commission, 1985). Later,
Gregory and Lees (1999) and Temkin (1996) highlighted victims’ negative experi-
ences of the forensic examination process, particularly around the insensitivity of male
doctors.
In 2002, a joint inspection of Her Majesty’s Crown Prosecution Service Inspectorate
and Her Majesty’s Inspectorate of Constabulary revealed that although some improve-
ments had been made, problems remained with the availability of female physicians,
high variability in training standards with many receiving no formal training, dishar-
mony in the professional relationships between police and physicians, difficulty
retaining physicians (especially women), and a “less than sensitive” approach to vic-
tims among a minority of physicians, which led to some victims withdrawing their
participation in the investigation (Her Majesty’s Crown Prosecution Service
Inspectorate (HMCPSI) & Her Majesty’s Majesty’s Inspectorate of Contabulary
(HMIC), 2002, p. 23). Their subsequent report (HMCPSI & HMIC, 2007) raised simi-
lar concerns around poor availability of physicians and the lack of consistency in how
they are employed, varying levels of expertise and services for victims, and a growing
trend toward private outsourcing. With respect to training of forensic physicians there
has been no consistent approach, and as such, standards have been changeable.
Although the HMCPSI & HMIC report of 2002 recommended training to the level of
the Diploma in Medical Jurisprudence, the 2007 follow-up report showed little evi-
dence that this had occurred.
Mary Pillai and Sheila Paul (2006) discussed the variations in service delivery in
England in 2005, highlighting the geographical disparity in services offered to victims
where some had access to a “one stop shop” Sexual Assault Referral Centre (SARC)
model designed to cater to victims’ forensic, medical, and support needs, and others
relied on the traditional model of police delivery. SARCs, introduced to address many
282
Feminist Criminology 10(3)
of the criticisms noted above, were intended to offer victims services such as testing
for sexually transmitted infections and pregnancy, antibiotic or HIV prophylaxis,
Hepatitis B vaccination, access to counseling and support, and the opportunity to
access services without police involvement wherein they could participate in an exam-
ination and have samples retrieved and deep frozen while deciding whether to proceed
with a complaint to...
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