<\/p>\n
In Wileman<\/em> v. Minilec Engineering<\/em>, Popplewell J suggested that a woman who dressed provocatively in the workplace was inviting comments on her appearance and that this would call into question any claim that these comments amounted to a detriment for the purposes of a claim of sex discrimination under section 1(1)(a) of the Sex Discrimination Act 1975.[1]<\/sup><\/a> Bridgeman and Millns suggest that this is tantamount to saying that \u2018she was asking for it\u2019.[2]<\/sup><\/a> However, this is not the only area of law which appears to hold a woman accountable for the criminal or civil wrongs done to her on the basis of her behaviour. In exploring this issue, this essay will further consider sexual discrimination in the workplace as well as evaluating the law of rape and domestic violence.<\/p>\n The issue of sex discrimination in the workplace has always been one in which the appropriateness or otherwise of the woman\u2019s behaviour has been subject to scrutiny. Wileman<\/em> v. Minilec Engineering<\/em> provides one example of this as the complainant\u2019s attire was used as a means of explaining and justifying the behaviour of her male colleagues. This can have only two possible explanations; firstly, that the behaviour would have been viewed as unacceptable if it had been directed at a differently, more conservatively dressed woman, and, secondly, that the complainant herself caused the conduct of which she complained. The first explanation introduces a theme that is evident in the other areas of law that will be discussed in this essay; the differential treatment of women on the basis of their perceived virtue or the \u2018whore and Madonna\u2019 dichotomy.[3]<\/sup><\/a> In other words, if the complainant had been a virtuous woman, the comments of the male workers would have been regarded as offensive and derogatory. However, as her choice of clothing was accepted as marking her out as an impure or disreputable woman, such language and comments directed against her could not be insulting or offensive as they were no more than she deserved as a woman of little virtue. The second explanation goes further and sees the woman as the protagonist and the provoker of the comments. By dressing in a manner that was inappropriate for the workplace, she attracted the attention of her male colleagues and prompted them to behave as they did. In other words, not only did she deserve to be subjected to ribald words and offensive comments, she had actually brought this about so one could almost conceive of the \u2018wrongly accused\u2019 colleagues being the victim rather than complainant.[4]<\/sup><\/a> Here in this second view, the woman is the cause of male bad behaviour therefore she is not only to be denied the protection of the law, she is to be blamed for inducing men to contravene the law.<\/p>\n These two constructions of women will be revisited in the sections that follow. Before exploring other areas, it is important to look at the structure of sex discrimination law and evaluate how it creates a situation in which the behaviour of the female complainant is scrutinised as much as the behaviour of those against whom complaint is made. Prior to the introduction of the new section 4A(1)(a) into the Sex Discrimination Act 1975, there was no free-standing provision dealing with sexual harassment so it was necessary to bring the facts of a harassment claim within the scope of section 1(1)(a) which prohibits direct discrimination on the grounds of sex. This provision provides that a person discriminates against a woman on the grounds of her sex if he treats her less favourably than he treats or would treat a man. Therefore, the treatment of the woman has to be compared with an actual or hypothetical male comparator and found to be less favourable. It must also be established that the complainant suffered a determent as a result of this less favourable treatment.<\/p>\n In invoking these provisions as the basis for a complaint of sexual harassment, the complainant lays her own behaviour open to scrutiny. In Wileman<\/em> v. Minilec<\/em>, not only did the tribunal consider evidence of the complainant\u2019s choice of clothing but also of her willingness to appear partially dressed in a national newspaper; a matter that had absolutely no bearing on the workplace or the way in which her male colleagues behaved towards her but which, of course, contributed to the construction of the complainant of a particular \u2018type\u2019 of woman. Equally, in Snowball<\/em> v. Gardner Merchant<\/em>, the tribunal considered it relevant to the claim of sexual harassment in the workplace that the complainant sometimes spoke about her sexual relationships at work and had been known to refer to her bed as a \u2018playpen\u2019.[5]<\/sup><\/a> These cases demonstrate that women who are viewed as presenting themselves as sexual being are not seen as deserving of the protection of the law.[6]<\/sup><\/a><\/p>\n This approach is mirrored elsewhere in the law, notoriously in rape cases where a defence barrister who can discredit a rape victim\u2019s morality is viewed as being well on the way to securing an acquittal.[7]<\/sup><\/a> Rape presents very particular challenges for the legal system as the only difference between rape and lawful intercourse exists in the states of mind of the two parties involved: consent exists in the mind of the victim and belief in the presence of consent in the mind of the defendant. Combine this with the fact that it is an offence that rarely takes place in the presences of witnesses and it is evident that evidential and probative difficulties will proliferate.[8]<\/sup><\/a> It is probably due to the lack of concrete evidence available upon which to determine what actually happened that causes the court to resort to an evaluation of the characters of the parties before them in an attempt to work out what probably happened.[9]<\/sup><\/a> Unfortunately, this speculative enterprise is marred by the presence of rape myths which colour the interpretation of events and often condemn the victim on the basis of her behaviour. Nowhere in the law is the differential treatment of women on the basis of their perceived virtue so pronounced. The \u2018perfect\u2019 rape victim, from the point of view of the prosecution, is either an elderly widow, a housewife of impeccable virtue or a young girl; victims whose sexuality is extinguished, controlled or not yet emerged hence they are women who could not possibly have been desirous of intercourse therefore their denials of consent cannot be disbelieved.[10]<\/sup><\/a> Conversely, a promiscuous woman or one who can in some way be construed as lacking in virtue cannot be believed and is condemned for two coexistent reasons: firstly, such a woman would not have refrained from intercourse as they are overtly sexual beings and, secondly, such a woman is immoral and dishonourable so is obviously a liar. Here, the woman\u2019s behaviour is determining two questions: the defendant\u2019s liability for violating her and her veracity as a witness. Moreover, women who have behaved \u2018inappropriately\u2019 are seen as causing their own rape whether this is by flirting, drinking, accepting lifts or failing to reject earlier sexual advances sufficiently emphatically; a study of rape cases led academics to adopt the term \u2018victim-precipitated rape\u2019[11]<\/sup><\/a> to describe cases in which there was a distinct tendency by the judge to characterise the victim as responsible for the intercourse that occurred.[12]<\/sup><\/a><\/p>\n Moreover, rape case history is replete with illustrations of the way in which a woman\u2019s behaviour is used as a basis to condemn her as undeserving of the protection of the law (where a more virtuous woman would be protected) or as the catalyst for the intercourse which occurred and therefore to blame for the whole situation. An example of this first category can be seen in the case in which the trial judge, sentencing the defendant to three years\u2019 imprisonment in contravention of the usual five-year starting point, stated \u2018while every woman is entitled to complain about their body being violated, someone who for years has flaunted their body and sold it cannot complain as loudly as someone who has not behaved in this way\u2019.[13]<\/sup><\/a> Here, the judge is clearly echoing the sentiments of the tribunal in Wileman<\/em> v. Minilec Engineering<\/em> that some women are less worthy than others and their behaviour renders them vulnerable to poor treatment by others (usually men). Equally, instances can be found of cases in which judges have held women responsible for the sexual violation that they experienced. For example, in an American case, a judge refused to hold a 15-year-old boy responsible for the rape of a fellow student, stating that his behaviour was a normal reaction to the girl\u2019s provocative clothing and general permissiveness.[14]<\/sup><\/a> The epitome of victim-blaming can be attributed to trial judge, Bertrand Richards, who imposed a financial penalty only on a convicted rapist and categorised the victim\u2019s behaviour as \u2018contributory negligence\u2019 as she accepted a life from the defendant at 2am after finding herself stranded. This prompted the comment that any woman who went hitch-hiking at night should expect to be raped because \u2018in the true sense of the word she was asking for it\u2019.[15]<\/sup><\/a><\/p>\n If women who have been subjected to unwanted sexual activity are not blamed inciting their rape, they are blamed for giving insufficiently clear messages to the defendant. It is not unusual for cases that hinge on consent to involve admissions by the defendant that the victim had said \u2018no\u2019 but then to claim that this was not interpreted as a refusal of consent to intercourse. Examples proliferate of cases in which this has occurred. Lees quotes a case in which the judge addressed the jury in a rape case saying \u2018as the gentlemen of the jury will understand, when a woman says \u2018no\u2019 she does not always mean \u2018no\u2019\u2019[16]<\/sup><\/a> where a judge in New Zealand stating that \u2018if every man stopped the first time a woman said \u2018no\u2019 the world would be a much less exciting place to live\u2019 after which the jury took only 45 minutes to acquit the defendant.[17]<\/sup><\/a> Again, the message is clear that it is the responsibility of the woman to ensure that any denial of consent is communicated in unequivocal terms to the defendant and that the onus is upon the woman to ensure that she countermands the culturally embedded acceptance of an acquiescence phrased as a denial; in other words, as it is accepted that \u2018no\u2019 does not mean \u2018no\u2019, a woman who truly means \u2018no\u2019 must make sure that she makes this clear.<\/p>\n Rape is clearly an area that illustrates the scrutiny of a woman\u2019s behaviour as the basis for a determination of the operation of the law. In common with the examples cited in relation to sexual harassment in the workplace, the victim\u2019s conduct is seen either as the catalyst for the conduct which she experiences or she is seen by her behaviour to deserve her victimisation because she has behaved differently to other women. In either case, she has brought her victimisation on herself by her behaviour. Another area in which a woman\u2019s victimisation is attributed to her own behaviour rather than that of her abuser is domestic violence. Here, however, the focus for attention is not only on what the woman has done to prompt such outrageous behaviour in her partner but also on her role in permitting her victimisation to continue; even now, the question of why the abused woman did not \u2018just leave\u2019 is frequently asked in domestic violence cases.[18]<\/sup><\/a><\/p>\n Dealing first with the victim\u2019s contribution to their victimisation, there is evidence of a shared belief between prosecution and defence that the defendant acted as he did because of something that the victim said or did as both sides seek to establish a chronology of events that will lead to the identification of the \u2018trigger\u2019 that caused the violence. In other words, there is a wholesale acceptance that the victim\u2019s behaviour in some way enraged or aggravated the defendant thus causing the violence which she experienced. It is commonplace for the cross-examination of victim\u2019s of domestic violence to follow the \u2018what did you say, what did you do\u2019 line of questioning thus giving a very clear message that the defendant responded with violence to some provoking words or conduct of the victim.[19]<\/sup><\/a> This overlooks the complexity of domestic violence and the multiplicity of its causes in favour of an explanation that lays the blame firmly at the feet of the victim. Furthermore, even when victims explain innocuous behaviour of their part, this may be met with a condemnatory reaction. For example, Hastings outlines one case in which the victim had been hospitalised after presenting her husband with the \u2018wrong\u2019 dinner: \u2018but you did know that your husband doesn\u2019t really enjoy fish, didn\u2019t you\u2019.[20]<\/sup><\/a> Hastings states that this demonstrates the \u2018extravagance and tenacity\u2019 of victim-blaming in domestic violence cases: \u2018if the wrong choice of meal is accepted as a trigger for violence than surely all and any<\/em> violence against women can be explained as the fault of the victim\u2019.[21]<\/sup><\/a> Hollies concurs with this view, stating \u2018any female behaviour that results in violence is seen as causing<\/em> that violence and this ensures that all domestic violence is the fault of the victim\u2019.[22]<\/sup><\/a><\/p>\n This structuralism of victim-blame in domestic violence[23]<\/sup><\/a> is further reflected in manslaughter cases in which abused women kill their abusive partners. Here, the plea of provocation that would reduce a conviction of murder to one of voluntary manslaughter invokes a detailed investigation into the woman\u2019s behaviour.[24]<\/sup><\/a> Now she is not only asked why she did not leave her abusive partner, she is expected to explain her violent reaction; indeed, the very fact of her violence reaction is deemed as evidence that the relationship was one of \u2018mutual violence in which each [partner] gave as good as they received\u2019.[25]<\/sup><\/a> Moreover, the court does not only evaluate the history of violence inflicted upon the woman, they sift through the minutiae of her behaviour as a wife and, if applicable, as a mother, alert for evidence of \u2018unsuitable\u2019 behaviour that would mark her out as undeserving of the court\u2019s sympathy. As Ellison notes, \u2018any sign of \u2018unwifely\u2019 or \u2018unmotherly\u2019 behaviour is used to demolish the woman\u2019s credibility as the \u2018victim\u2019 and construct her as the \u2018villain\u2019 which is likely to remove any prospect of that the jury will view her in a favourable light\u2019.[26]<\/sup><\/a><\/p>\n This consideration of rape and domestic violence reinforces the conceptualisation of the female victim of sexual harassment in the workplace as to blame for her own victimisation. Any hint of \u2018unsuitable\u2019 or \u2018inappropriate\u2019 behaviour is seized upon to explain the events which occurred and to attribute blame firmly at the feet of the woman. A woman whose behaviour does not conform to the largely-patriarchal construction of a \u2018good\u2019 wife and mother is viewed as \u2018asking for\u2019 a range of unpleasant consequences from harassment and verbal abuse to violence and sexual violation. Moreover, women who ultimately respond with violence against their abuser will find themselves without the court\u2019s sympathy for their plight if they are viewed as undeserving following scrutiny of the totality of their behaviour.<\/p>\n Bibliography<\/span><\/p>\n Amir, M., (1971) Patterns in Forcible Rape<\/em>, Chicago: University of Chicago Press<\/p>\n Bourne, J. & Derry, C., (2004) Women and Law<\/em>, London: Old Bailey Press<\/p>\n B<\/strong>ridgeman, J. & Millns, S., (1998) Feminist Perspectives on Law:Law’s Engagement with the Female Body<\/em>, London: Sweet & Maxwell<\/p>\n Ellison, L. (2002) The Adversarial Process and the Vulnerable Witness<\/em>, Oxford: Oxford University Press<\/p>\n Estrich, S., (1987) Real Rape<\/em>, Cambridge: Harvard University Press<\/p>\n Evans, M. & Less, E., (2002) Real Bodies: a Sociological Introduction<\/em>, Basingstoke: Palgrave<\/p>\n Gavey, N., (2005) Just Sex: the Cultural Scaffolding of Rape<\/em>, London: Routledge<\/p>\n Halsbury\u2019s Laws of England<\/p>\n Halsbury\u2019s Statutes<\/p>\n Harlow, M.I., \u2018What\u2019s Love Got to Do with It: Blaming the Victims of Violence\u2019 Journal of Violence and Victims<\/em> (2002) vol., 17, pp. 234-247<\/p>\n Hastings, B., (2004) An Empirical Study of Victim-Blame in Domestic Violence<\/em>, London: Routledge<\/p>\n Hollies, K.L., (2004) Attribution of Blame and Responsibility in Domestic Violence<\/em>, New York: Carson Publications<\/p>\n Kennedy, H., (1992) Eve Was Framed<\/em>, London: Chatto and Windus<\/p>\n Lees, S., (1993) Carnal Knowledge: Rape on Trial<\/em>, London: Hamish Hamilton<\/p>\n MacKinnon, C.A., (1989) Towards a Feminist Theory of the State<\/em>, Cambridge: Harvard University Press<\/p>\n McEwan, J., (2003) The Psychology of the Courtroom<\/em>, Oxford: Oxford University Press<\/p>\n Scully, D., (1990) Understanding Sexual Violence<\/em>, London: Unwin Hyman<\/p>\n Smart, C., (1989) Feminism and the Power of the Law<\/em>, London: Routledge<\/p>\n Smart, C., \u2018Feminist Approaches to Criminology or Post-modern Woman Meets Atavistic Man\u2019 in Gelsthorpe, L. and Morris, A., (eds.) (1990) Feminist Perspectives in Criminology<\/em>, Buckingham: Open University Press<\/p>\n Smith, D., (1987) The Everyday World as Problematic: a Feminist Sociology<\/em>, Milton Keynes: Open University Press<\/p>\n Temkin, J., (2002) Rape and the Legal Process<\/em>, 2nd<\/sup> ed., Oxford: Oxford University Press<\/p>\n Walklate, S., (2004) Gender, Crime and Criminal Justice<\/em>, 2nd<\/sup> ed., Cullompton: Willan Publishing<\/p>\n Ward, C.A., (1995) Attitudes Towards Rape: Feminist and Social Psychological Perspective<\/em>, London: Sage Publications<\/p>\n 1<\/p>\n <\/a>[1]<\/sup> Wileman<\/em> v. Minilec Engineering<\/em> [1988] ICR 318<\/p>\n <\/a>[2]<\/sup> Bridgeman, J. & Millns, S., (1998) Feminist Perspectives on Law:Law’s Engagement with the Female Body<\/em>, London: Sweet & Maxwell<\/p>\n <\/a>[3]<\/sup> MacKinnon, C.A., (1989) Towards a Feminist Theory of the State<\/em>, Cambridge: Harvard University Press; Smart, C., \u2018Feminist Approaches to Criminology or Post-modern Woman Meets Atavistic Man\u2019 in Gelsthorpe, L. and Morris, A., (eds.) (1990) Feminist Perspectives in Criminology<\/em>, Buckingham: Open University Press<\/p>\n <\/a>[4]<\/sup> Scully, D., (1990) Understanding Sexual Violence<\/em>, London: Unwin Hyman, pp. 36-45<\/p>\n <\/a>[5]<\/sup> Snowball<\/em> v. Gardner Merchant Ltd<\/em> [1987] ICR 719<\/p>\n <\/a>[6]<\/sup> Smith, D., (1987) The Everyday World as Problematic: a Feminist Sociology<\/em>, Milton Keynes: Open University Press<\/p>\n <\/a>[7]<\/sup> Ward, C.A., (1995) Attitudes Towards Rape: Feminist and Social Psychological Perspective<\/em>, London: Sage Publications, pp. 106-107<\/p>\n <\/a>[8]<\/sup> Temkin, J., (2002) Rape and the Legal Process<\/em>, 2nd<\/sup> ed., Oxford: Oxford University Press, pp. 10-12<\/p>\n <\/a>[9]<\/sup> McEwan, J., (2003) The Psychology of the Courtroom<\/em>, Oxford: Oxford University Press<\/p>\n <\/a>[10]<\/sup> Evans, M. & Less, E., (2002) Real Bodies: a Sociological Introduction<\/em>, Basingstoke: Palgrave<\/p>\n <\/a>[11]<\/sup> Amir, M., (1971) Patterns in Forcible Rape<\/em>, Chicago: University of Chicago Press, pp. 259-276<\/p>\n <\/a>[12]<\/sup> Estrich, S., (1987) Real Rape<\/em>, Cambridge: Harvard University Press, pp.24-25<\/p>\n <\/a>[13]<\/sup> Comments of Alliot J as quoted in Temkin, J., (2002) Rape and the Legal Process<\/em>, 2nd<\/sup> ed., Oxford: Oxford University Press, p. 49<\/p>\n <\/a>[14]<\/sup> Ward, C.A., (1995) Attitudes Towards Rape: Feminist and Social Psychological Perspective<\/em>, London: Sage Publications, p. 27<\/p>\n <\/a>[15]<\/sup> Smart, C., (1989) Feminism and the Power of the Law<\/em>, London: Routledge, p.437<\/p>\n <\/a>[16]<\/sup> Lees, S., (1993) Carnal Knowledge: Rape on Trial<\/em>, London: Hamish Hamilton, p. 20<\/p>\n <\/a>[17]<\/sup> Quoted in Gavey, N., (2005) Just Sex: the Cultural Scaffolding of Rape<\/em>, London: Routledge, p. 23<\/p>\n <\/a>[18]<\/sup> Walklate, S., (2004) Gender, Crime and Criminal Justice<\/em>, 2nd<\/sup> ed., Cullompton: Willan Publishing, p. 129<\/p>\n <\/a>[19]<\/sup> Kennedy, H., (1992) Eve Was Framed<\/em>, London: Chatto and Windus<\/p>\n <\/a>[20]<\/sup> Hastings, B., (2004) An Empirical Study of Victim-Blame in Domestic Violence<\/em>, London: Routledge<\/p>\n <\/a>[21]<\/sup> Hastings, B., (2001) Empirical Study of Victim-Blame in Domestic Violence<\/em>, London: Routledge, p. 145<\/p>\n <\/a>[22]<\/sup> Hollies, K.L., (2004) Attribution of Blame and Responsibility in Domestic Violence<\/em>, New York: Carson Publications, p. 25<\/p>\n <\/a>[23]<\/sup> Harlow, M.I., \u2018What\u2019s Love Got to Do with It: Blaming the Victims of Violence\u2019 Journal of Violence and Victims<\/em> (2002) vol., 17, pp. 234-247<\/p>\n <\/a>[24]<\/sup> Section 3 Homicide Act 1957<\/p>\n
\nFootnotes<\/h3>\n