Debating Criminal law and Feminism on BBC Radio
Law Professor. Advisor. Commentator.
Expert on Violence Against Women & Girls
Sexual Violence & Justice
Central to my work on sexual violence are the perspectives of victims and survivors, particularly their understandings of what justice looks like them. My research developed the concept of ‘kaleidoscopic justice‘ with my colleague Nicole Westmarland to better reflect the varied, complex, ever-changing nature of survivors’ justice interests which both include, and go beyond, criminal justice. This builds on research forging different approaches to tackling sexual violence, including our investigations of restorative justice in cases of sexual violence and domestic abuse.
My research has also challenged the common use of sexual history evidence in sexual assault trials, questions of anonymity for rape defendants and argued for reduced sentencing in specific rape cases. I am part of the pioneering Home Office funded Project Soteria seeking to transform rape investigations. This work all builds on earlier collaborations including the book Rethinking Rape Law: international and comparative perspectives (2010) co-edited with Vanessa Munro.
Tackling sexual violence requires fundamental changes to the criminal justice system, as well as active development of transformative and restorative justice approaches, with survivors rights and interests at heart.
News & Articles
What does justice mean to survivors of sexual violence? It means many things – it’s complex, nuanced and means different things to different survivors. But what is definitely clear is that justice is not limited to conventional criminal justice outcomes, to convictions and long prison sentences, though that is important for some. Survivors seek recognition of their experiences, dignity of treatment, their voice being heard. They want consequences – often focussing on education and rehabilitation. Prevention is central to their ideas of justice.
Working with sexual violence survivors, we describe these various justice ideas as ‘kaleidoscopic justice’ to explain the fluidity and complexity of their ideas of justice. Justice here is understood as a constantly shifting, ever-evolving, lived experience. Survivors are seeking consequences – including but not limited to criminal justice – recognition of their experiences, dignity of treatment, voice, and seeing education and prevention as central to their idea of justice.
Read the full research article and the policy briefing here.
This research has helped to frame sexual violence policy debates, particularly emphasising victims’ interests and rights beyond the criminal justice process. Some victim support organisations have embedded it in their practice, activists engage with it and some survivors have referred to these ideas in their own writings and evidence to law reform commissions, including in Australia. In 2020, the concept of kaleidoscopic justice was the focus for a UN Women webinar debate on justice and sexual harassment. Together with Magdalena Furgalska, I have considered how the idea of kaleidoscopic justice can advance our understanding of sexual violence at universities.
Restorative Justice in Cases of Domestic Abuse
Do the police use restorative justice to deal with reports of domestic abuse? Together with colleagues Nicole Westmarland and Kelly Johnson, we set out to investigate this question and found troubling results, published in 2018. We found that in stark contrast to official police guidance, every police force in the UK – except Scotland – used ‘out of court resolutions’ to respond to over 5,000 domestic abuse incidents (including intimate partner abuse). Some of these incidents related to offences with sentencing tariffs of up to life imprisonment. Such widespread use of community resolutions and restorative justice – what we are calling out of court resolutions – has been taking place under the radar and contrary to best practice. Read the research in full for free here and a policy briefing here.
Our research on police use of community resolutions for domestic abuse led to policy and practice changes in the police. I gave oral and written evidence to Parliament’s Justice Committee inquiry into restorative justice, sharing our research findings and the Committee recommended change in its report. This was then followed up by the Government and College of Policing. You can watch the live session here.
In related research, we undertook an in-depth study of one police force’s response to domestic abuse using restorative approaches. This followed a conference organised with Durham Police on policing domestic abuse. This conference initiated many changes to police policy and procedures within Durham constabulary.
In an article for the Restorative Justice Council, I examine the options for using restorative approaches in domestic abuse cases, cautioning against its use in cases of intimate partner abuse and coercive control, but being open to engaging with survivors.
Clare McGlynn giving evidence to Justice Committee inquiry into Restorative Justice together with Polly Neate of Women’s Aid and Dame Diana Barran of Safe Lives
Restorative Justice in Cases of Sexual Violence
I began this work with Nicole Westmarland in 2012 when we investigated the experiences of Lucy who is a survivor of child rape and other forms of sexual abuse. Lucy participated in a restorative justice conference and her positive experience, and the insights from the other professionals involved in the conference, suggests the possibility that restorative justice may provide some measure of justice for survivors of sexual violence. Lucy's experiences changed my approach and has influenced my work ever since.
You can read our research briefing which summarises Lucy's experiences and our research findings, as well as reading the full research findings and academic article here.
In relation to universities, I have suggested they should develop restorative justice for sexual misconduct cases as this can encourage early admissions of responsibility and provide recognition of victims’ experiences.
Universities should offer restorative justice for sexual misconduct victims (Times Higher Education)
Sexual Offences & Sexual History Evidence
Sexual History Evidence in Rape Trials
A key controversy in rape and sexual assault trials is the use of sexual history evidence, often used to discredit the complainant. In 2017, I undertook a comprehensive review of this area of law, particularly examining the controversial Ched Evans case where the complainant’s sexual activity with men other than the defendant was allowed at trial. My research challenges the use of sexual history evidence and sets out how the law should be reformed. My policy briefing summarises my main recommendations for change and a blog in the Huffington Post responded to the Government’s then refusal to reform the law.
The Government has now recognised the need for reform, asking the English Law Commission to undertake a review and I have participated in the review’s consultation process. My research is a key reference in the field, with my article already being viewed/downloaded 50,000 times and widely cited. The 2019 Gillen review of legislation in Northern Ireland referred to ‘leaning heavily’ on my ‘arresting analysis’. I have also participated in legal debates, for example providing a detailed response to arguments against reform in the Criminal Law Review where I suggest that we need to have a balanced, nuanced and respectful debate about the options for reform. Also in this field, as part of the feminist judgments project, I re-wrote the landmark decision in R v A (2001) which permitted sexual history evidence to be admitted in certain situations: my judgment is excerpted here in The Guardian.
Transforming Police Investigations of Rape, Operation Soteria
I am part of the large Home Office funded Project Soteria project, working with the police to transform how they investigate rape and sexual assault offences. In particular, I am working with Kelly Johnson on ensuring victim’s rights and interests are central in such investigations, respecting and protecting victim’s rights to procedural justice.
Challenging Anti-Carceral Feminism
Within feminist and activist communities, there is an increasingly heated debate over the use of the criminal law to tackle violence against women. My work over decades has foregrounded sexual violence survivors’ perspectives and interests which has focused my work on both reforming the criminal justice system and investigating the use and value of alternatives such as restorative justice. In my recent article Challenging Anti-Carceral Feminism, I respond to recent debates, making the case for criminal law and criminal justice reforms to meet the rights and interests of those victims who seek criminal redress, as well as supporting innovative and transformative approaches. I call for a more nuanced debate and you can read more here and you can listen to me discuss this research on the BBC radio programme Thinking Allowed here.
Rethinking Rape Law
This work all builds on earlier research examining anonymity for rape defendants, rape as a form of torture and a collaboration and conference ‘rethinking rape law’ in 2008. This conference, funded by the British Academy, brought to Durham University Prof Catharine MacKinnon and Navanethem Pillay, former UN Human Rights Commissioner and President of the International Tribunal for Rwanda, to re-examine the law on rape. This resulted in the book Rethinking Rape Law: international and comparative perspectives (2010) co-edited with Vanessa Munro.
Challenging anti-carceral feminism: Criminalisation, justice and continuum thinking
McGlynn, Clare (2022). Women's Studies International Forum 93: 102614
While anti-carceral feminism – which challenges the use of the criminal law and criminal justice system to tackle violence against women – is increasingly dominant, this article builds on an emerging body of work contesting its central premises. In particular, this article emphasises that some sexual violence survivors seek criminal justice redress and examines the work of feminist organisations both supporting survivors and demanding radical change. It argues that some anti-carceral feminism risks reifying existing criminal laws and reproducing sexual violence myths and stereotypes. In doing so, it defends criminalisation of ‘new’ and emerging forms of abuse and offers ‘continuum thinking’ (Boyle, 2019) as a way of moving beyond the polarised and binary approaches of current debates and activism. The aim is to encourage a nuanced, complex approach to the criminal law and criminalisation which recognises both a role for criminal justice and alternatives; which listens to the voices of all survivors, including those whose understanding of justice includes criminal justice; and which is fully alive to the risks and challenges that all justice approaches entail whether state or community based.
Kaleidoscopic Justice: Sexual Violence and Victim-Survivors’ Perceptions of Justice
McGlynn, Clare & Westmarland, Nicole (2019). Social and Legal Studies 28(2): 179-201
This article proposes a more multifaceted way of thinking about victim-survivors’ perceptions of justice; what we have termed ‘kaleidoscopic justice’. Developed from an empirical investigation with 20 victim-survivors of sexual violence, kaleidoscopic justice understands justice as a constantly shifting pattern; justice constantly refracted through new experiences or understandings; justice as an ever-evolving, nuanced and lived experience. Within this framework, a number of justice themes emerged, namely justice as consequences, recognition, dignity, voice, prevention and connectedness. This approach develops current understandings, in particular by emphasizing the fluidity of justice, as well as the centrality of prevention and connectedness in sexual violence survivors’ understandings of justice. We suggest that it is only by better understanding victim-survivor perspectives on justice, and embedding the concept of kaleidoscopic justice, that we can begin to address the sexual violence ‘justice gap’.
Read the Policy Briefing here.
Using restorative justice approaches to police domestic violence and abuse
Westmarland, N., McGlynn, C. & Humphreys, C. (2018). Journal of Gender-Based Violence 2(2): 339-358
The use of restorative justice in cases of domestic abuse is highly controversial. While little is known about how restorative approaches are used by the police, recent research shows they are used on a widespread basis to respond to domestic abuse throughout England and Wales (Westmarland et al, 2018). This study delves deeper, to look at 62 cases within one police force. Qualitative police data extracted from force systems were analysed to discover in what type of domestic abuse incidents restorative approaches are used, and what type of approaches are used. We argue that while the language of restorative justice was used, the spirit of restorative justice was often missing. In some cases, the police seem to be using the language of restorative justice to respond to cases they do not think would benefit from further criminal justice intervention (a ‘new NFA’ (No Further Action)). We conclude that further differentiation between different forms of domestic abuse and different forms of restorative approach is needed to enable a more informed conversation. Further, it is essential that the domestic abuse sector work more closely with restorative justice communities in order to more safely and more appropriately consider the challenges and opportunities that restorative approaches may offer.
Challenging the law on sexual history evidence: a response to Dent and Paul
McGlynn, Clare (2018). The Criminal Law Review 2018(3): 216-228
Responds to an article by N. Dent and S. Paul, "In defence of section 41", Crim. L.R. 2017, 8, 613-627, defending current policy on use of sexual history evidence in trials under the Youth Justice and Criminal Evidence Act 1999 s.41, with reference to R. v Evans (Chedwyn) (CA). Challenges their rejection of criticisms of the current regime, including that it may cause victim blaming and that Evans opens the floodgates to admitting such evidence.
Under the radar: the widespread use of 'Out of Court resolutions' in policing domestic violence and abuse in the United Kingdom
McGlynn, Clare, Westmarland, Nicole & Johnson, Kelly (2018). The British Journal of Criminology 58(1): 1-16
The suitability of ‘out of court resolutions’ (restorative justice and community resolutions) in cases of domestic abuse is theoretically contentious and empirically under-researched. This study investigated the nature and extent of out of court resolutions for domestic abuse using the Freedom of Information Act. Out of court resolutions were used by every UK police force except Scotland to respond to over 5,000 domestic abuse incidents (including intimate partner abuse) in 2014. Some of these incidents related to offences with sentencing tariffs up to life imprisonment. Such widespread use has been taking place ‘under the radar’ in stark contrast to police guidance, has immediate implications for policy and practice, and fundamentally shifts the research terrain in this field.
Rape Trials and Sexual History Evidence: reforming the law on third party evidence
McGlynn, Clare (2017). Journal of Criminal Law 81(5): 367-392
Despite repeated legislative attempts to restrict the use of sexual history evidence in rape trials, it continues to be admitted in many cases, causing considerable debate and leading to further attempts to reform the law. In this light, this article examines afresh the admissibility of sexual history evidence in rape trials. It focuses particularly on evidence relating to persons other than the accused (third-party evidence), following the recent controversial judgment of the Court of Appeal in R v Ched Evans where such evidence was introduced. The justifications for restricting sexual history evidence are considered, as well as research data on how often it is being used. Following an analysis of the current law, the article concludes that urgent reform is needed and a number of law reform options are examined.
Read the Policy Briefing here.
Seeking Justice for Survivors of Sexual Violence: recognition, voice and consequences
McGlynn, C., Downes, J. & Westmarland, N. (2017)
This chapter describes the emerging body of evidence by sharing the preliminary findings of a study investigating the justice perspectives of a group of sexual violence survivors. It focuses on recognition, voice and consequences to draw out the implications for the further development of restorative approaches in cases of sexual violence. The chapter describes that survivors' understandings of justice extend beyond the parameters of conventional and restorative approaches, echoes the participants in Herman's study whose views of justice were 'neither restorative nor retributive in the conventional sense'. Justice was not synonymous with the conventional criminal justice system for the participants. Kaleidoscopic justice is justice as a continually shifting pattern; justice constantly refracted through new circumstances, experiences and understandings; justice as non-linear, with multiple beginnings and possible endings; and justice as a lived, on-going and ever-evolving experience without certain ending or result.
"I just wanted him to hear me": sexual violence and the possibilities of restorative justice
McGlynn, Clare, Westmarland, Nicole & Godden, Nikki (2012).Journal of Law and Society 39(2): 213-240
The use of restorative justice in cases of sexual violence is highly contentious. Resistance comes from those who argue that it may trivialise violence against women, re-victimise the vulnerable and endanger the safety of victim-survivors. On the other hand, from the perspective of victim-survivors, it may enable us to hear their stories more holistically; it may offer greater control, validation and may reduce victim-blaming. It may also provide an additional opportunity to secure some form of justice. Debate over the validity of these competing claims has largely taken place in an empirical vacuum. To begin to remedy this gap in our knowledge, and particularly our understanding of victim-survivor perspectives, this article considers the results of an exploratory study which investigated a restorative justice conference involving an adult survivor of child rape and other sexual abuse. The results of this case study, while necessarily tentative, provide good ground to consider afresh the possibilities of restorative justice in cases of sexual violence. We suggest that for those victim-survivors who wish to pursue this option, restorative justice may offer the potential to secure some measure of justice.
Rape, Defendant Anonymity and Human Rights: adopting a "wider perspective"
McGlynn, C (2011). The Criminal Law Review (3): 199-215
For six months during 2010, debate raged over the Coalition Government’s plan to grant anonymity to those accused of rape. This contentious public debate focused almost exclusively on rape-specific arguments for or against rape defendant anonymity, to the exclusion of broader criminal justice and human rights concerns. This resulted in an impoverished debate which, specifically, gave no consideration to recent jurisprudence in which the highest courts have examined the appropriate balance between freedom of speech and the protection of privacy when considering defendant anonymity orders. This article remedies this lacuna, analysing this case law and applying its insights to the proposal to grant anonymity to rape defendants. While the Government’s proposal has been abandoned for the time being, this article lays the groundwork for a more reasoned and human rights conscious debate in the future, when such a reform will no doubt be proposed once again.
Feminism, Rape and the Search for Justice
McGlynn, C (2011). Oxford Journal of Legal Studies 31(4): 825-842
Justice for rape victims has become synonymous with punitive state punishment. Taking rape seriously is equated with increasing convictions and prison sentences and consequently most feminist activism has been focused on reforming the conventional criminal justice system to secure these aims. While important reforms have been made, justice continues to elude many victims. Many feel re-victimized by a system which marginalizes their interests and denies them a voice. Restorative justice offers the potential to secure justice for rape victims, but feminist resistance has resulted in few programmes tackling such crimes. In After the Crime, Susan Miller evidences the positive outcomes of a restorative justice programme tackling serious offences including rape and recommends their development. However, her vision is ultimately limited by her recommendation of only post-conviction restorative processes and the implicit endorsement of the conventional criminal justice system. I argue that feminist strategy and activism must rethink its approach to what constitutes justice for rape victims, going beyond punitive state outcomes to encompass broader notions of justice, including an expansive approach to restorative justice.
Rethinking Rape Law: international and comparative perspectives
Clare McGlynn and Vanessa Munro (eds) (2010), Routledge
Rethinking Rape Law provides a comprehensive and critical analysis of contemporary rape laws, across a range of jurisdictions. In a context in which there has been considerable legal reform of sexual offences, Rethinking Rape Law engages with developments spanning national, regional and international frameworks. It is only when we fully understand the differences between the law of rape in times of war and in times of peace, between common law and continental jurisdictions, between societies in transition and societies long inured to feminist activism, that we are able to understand and evaluate current practices, with a view to change and a better future for victims of sexual crimes. Written by leading authors from across the world, this is the first authoritative text on rape law that crosses jurisdictions, examines its conceptual and theoretical foundations, and sets the law in its policy context.
Rape, Torture and the European Convention on Human Rights
McGlynn, Clare. (2009). International and Comparative Law Quarterly 58(3): 565-595
This article examines the legacy of the ground-breaking judgment in Aydin v Turkey in which the European Court of Human Rights held that rape could constitute torture. Ten years on, it examines jurisprudential developments in the conceptualisation of torture in the specific context of the offence of rape. It is argued that while all rapes should be found to satisfy the minimum threshold for Article 3, rape does not per se satisfy the severity of harm criterion for torture. Nonetheless, where the severity of harm is established, the case is made that the purposive element of torture is satisfied in all cases of rape. Finally, in relation to the scope of State responsibility for rape, particularly by private individuals, the article suggests that while the Court's achievements in recognizing rape as a serious harm are considerable, there remain further avenues for jurisprudential development which would ensure that rape as a form of torture is recognized in a wider range of situations and circumstances than is currently the case.
Rape as “Torture”? Catharine MacKinnon and Questions of Feminist Strategy
McGlynn, Clare (2008). Feminist Legal Studies 16(1): 71-85
How can we eradicate violence against women? How, at least, can we reduce its prevalence? One possibility offered by Catharine MacKinnon is to harness international human rights norms, especially prohibitions on torture, and apply them to sexual violence with greater rigour and commitment than has hitherto been the case. This article focuses particularly on the argument that all rapes constitute torture in which states are actively complicit. It questions whether a feminist strategy to reconceptualise rape as torture should be pursued, suggesting that we retain the label 'rape' due to its gendered meaning and powerful associations. It is also claimed that we may lose sight of the commonality of rape in calling it torture, as well as obscuring the varied responses of women survivors. Finally, the article canvasses the idea that we recognise the different circumstances and contexts in which rape takes place, which may mean different criminal offences for different rapes; for example, preserving the label 'torture' for those rapes in which state officials are participants.