Rape and the Civil Law: An Alternative Route to Justice

Abstract

Over the past three decades there has been a considerable amount of attention paid to the problem of rape and how the law and legal system should address it. And yet, in spite of significant legislative changes and political goodwill, attrition rates remain high and conviction rates low. In light of this, this thesis will explore the civil law, and in particular the trespass to the person torts, as an alternative route to justice. By placing the crime of rape within the framework of tort law it seeks to provide an alternative perspective from which to interrogate the harm of rape. Exploring the small body of case law, it will consider the extent to which tort law can respond to and might disrupt the distorting presence of ‘rape myths’. It outlines the purpose(s) of tort law and the reasons as to why civil claims for rape (or acts like rape) may or may not be pursued, before considering its gendered limitations. Further, the strengths and shortcomings of the civil law’s procedural rules and structures that differ from the criminal law will be explored, as well as the extent to which tort law may contribute to maintaining a problematic conception of rape. The thesis concludes that while tort law is unlikely to provide an ideal route to justice, it might – at least for some – offer an alternative avenue to redress; and placing rape in the context of tort law – with different purposes, substance and procedures to the criminal law – might reshape and reframe debates, allowing us to rethink rape and the possible legal responses.