Scripts
of Rape
Wendy
Larcombe Compelling Engagements:
Feminism, Rape Law and Romance Fiction. Sydney: The Federation Press, 2005.
Reviewed
by JaneMaree Maher
Larcombe’s Compelling Engagements: Feminism,
Rape Law and Romance Fiction interrogates the ‘conventionally 
gendered subjectivities’
(1) produced in both rape at law and romance fictions. She is interested in how
the scripts and narratives in both spheres regulate the ‘conduct of sexual
relations’ (1) and how relatively narrow gender conventions persist in the face
of ‘extensive feminist engagement’ (1). These two diverse areas of culture are
thematically connected, Larcombe suggests, by their concentration on the
regulation and management of heterosexual exchange. This intersection of
feminist critical jurisprudence and critical literary studies is not novel –
other scholars have focused on the romance scripts in rape trials, but
Larcombe’s account pushes beyond existing formulations, arguing that
the trust and
anticipation of female consumers [of rape law and romance fiction] is secured
by reproducing female subjectivity, and in particular, heterosexual
subjectivity as a “problem”, a security risk. The ostensible solution in both
discourses is to regulate or transform male desires (141).
The issue with this transaction,
Larcombe suggests, is that the desires of the female subjects are already
profoundly disciplined by institutions like law and concepts of ‘love’.
Feminist legal critics have
mounted a sustained attack on Western legal systems and their treatment of women
in cases of sexual assault. Many, like Susan Erlich (2001), Sue Lees (1997) and
Sharon Marcus (1992), have focused on the oppressive construction of rape in
legal discourses. But it is Larcombe’s close focus on wrongful intent (mens
rea) as an under-examined element of rape at law that distinguishes Compelling Engagements. For Larcombe,
‘the accused’s, rather than the victim’s, state of mind constitutes the
linchpin of rape at law’ (21). This means that
the difference between
sex and rape is visible on, and to, law, then, through its examination of the
parties’ state of mind at the time of the relevant events … The law’s only
interest in the [victim’s] state of mind is whether she was consenting or not
to the particular act of sexual penetration with the particular person, at the
relevant time … In no way is the victim able to specify or qualify the
circumstances of her non-consent/ consent to sexual penetration or, more
generally, her desired or perceived relation to the accused (21-22).
This structural inequity, where
the law is attentive to the state of the accused’s mind diminishes the
complainant’s ability to ‘limit or restrict consent to sexual penetration for
particular purposes’ (23). Larcombe argues that ‘rape at law has already been
defined as a product of his attitude to her non-consent. That is, rape requires
a specific relation between the parties’ state of mind – but it is a relation
that only operates one way’ (22). These constraints affect what Larcombe terms
‘the legal imagination’, since the focus on the rapist’s state of mind, the
disregard for the state of mind of the complainant and the law’s structural
alignment with the mental state of the accused shape the particular
‘sexualisation of the complainant’ (30). As Larcombe argues, ‘this is an
important failing’ – for the law cannot know ‘that the “nature” of the act of
sexual penetration is altered for the victim depending on her perception of the
accused’s intentions’ (2005: 23). ‘The law cannot imagine a victim who may
desire sex while not wanting to be raped’ (23).
Larcombe’s attentiveness to the
elements of rape at law offers a cogent account of the fear of false complaint
in cases of sexual assault. She argues that this fear ‘outstrips the
expectation of false complaint in other areas of the criminal law’ and ‘is not
explained by the “actual” rates of false complaint as empirically measured’
(103). The strength of the myth of the false complainant betrays an anxiety
that
law’s punitive powers
may be put to work in the complainant’s interests. In other words, there is a
concern that the machinery of sentencing and incarceration will not only be
activated by a woman’s word, but manipulated and harnessed into the woman’s
service (110).
Justice is not available to be of
service to women in cases of sexual assault, Larcombe suggests. For a
complainant to receive justice, ‘she must demonstrate a desire to put herself
at the service of state regulation (and not vice versa)’ (112).
For Larcombe, the critical link
between rape scripts in law and romance fiction is the way romance fiction
reproduces ‘gender hierarchy and a fiction of vulnerable feminine subjectivity’
(6). Larcombe explores the writing, production, distribution and content of
Harlequin Mills and Boon fiction in Australia, arguing that love is the
critical element that allows for the modification of ‘the hero’s desires’ the
renegotiation of the ‘terms of heterosexual exchange’ (34). Despite
responsiveness ‘to readers’ desires and preferences and to changes in women’s
social and familial roles’ (138), these fictions continue to represent the
negotiation of that heterosexual exchange as ‘the ultimate guarantor of
feminine satisfaction’ (138).
This slender volume is deeply
compelling. Larcombe’s premise of reading the intersecting scripts of rape at
law and romance fictions extends well beyond identifying commonalities because,
in her view, changes to rape law based on a call to eradicate ‘outdated and
unrealistic fiction(s) of femininity’ (6) may not be successful when there are clear
cultural investments in just such fictions of femininity in other cultural
spheres. As the victim of rape is constrained by the available feminised
subject position, the ideal reader of romance is enjoined to believe in the
promise of the fiction. Larcombe draws attention to ‘the political and
financial economies of the criminal justice system and the [Harlequin Mills and
Boon] publishing business’ (134) in order to help explain the persistence of
particular models of feminine subjectivity.
Larcombe begins this book with an
implicit question - how is it that the gendered scripts of sexual assault
persist? - despite the fact that feminist interventions into rape law have been
heard and acted upon. There have been, in most Australian jurisdictions, substantive
changes to legislation and to procedures surrounding sexual assault, although
it is widely acknowledged that these have not extended far enough in many
cases, or changed the experience of victims sufficiently. In Victoria, for
example in 1991, significant changes to the terms of consent as well as the
definition of rape itself sought to broaden the range of acts and assaults
captured by the law. But the legal change resulted in a drop in the number of
prosecutions mounted and in the number of convictions secured (Victorian Law
Reform Commission, 2004). These depressing statistics provide a clear platform
for Larcombe to question whether the expansion of legal effects and
applications in the area of sexual assault really work to ‘transform … the application
and effects of legal jurisdiction’ (137). As Compelling Engagements focuses our attention on ‘the legal
construction of “rape” and particularly the investigation of the accused’s
knowledge of non-consent’ (30) and on the operation of particular feminist
critiques, it does assist us to understand the need for more direct
confrontation with ‘anachronistic feminine figures’ (134), both at law and
elsewhere. Larcombe’s work also provides some new critical frameworks to help
us in this task.
JaneMaree
Maher is a Senior Lecturer at the Centre for Women’s Studies & Gender
Research at Monash University
References
Ehrlich, Susan. (2001). Representing rape: language and
sexual consent. New York: Routledge.
Lees, Sue. (1997). Ruling passions: sexual violence,
reputation, and the law. Buckingham, Philadelphia: Open University Press.
Marcus, Sharon. (1992). Fighting Bodies, Fighting words: A
Theory and Politics of Rape Prevention. In Judith Butler and Joan Scott (Eds.),
Feminists Theorize the Political (pp. 385-403). London & New York:
Routledge.
Victorian Law Reform Commission. (2004). Sexual Offences: Final Report August 2004