Law Text Culture


Despite more than three decades of law reform, debate and scholarship designed to improve the legal response to rape, reporting rates remain low, attrition rates high, conviction rates low and conviction appeals in sexual assault matters have one of the highest rates of success (Kelly, Lovett & Regan 2005; Fitzgerald 2006; Daly and Bourhous 2010; Brown et al 2015). Furthermore, dissatisfaction with the criminal justice system remains a key issue for victims of sexual assault (Clark 2010; Daly 2011). This dilemma led Penny Pether to state: But all the speech and the writing, the scholarship and the legislation and the training programs and manuals and the textual artifacts of law reform have changed nothing, except perhaps that a larger number of women in many cultures are reporting rapes, only to experience the various instantiations of the embodied institutional and discursive ‘second rape’ that is one of the predictors of attrition (2009: 243). This article analyses the origins of one particular aspect of, and explanation for, this continuing dilemma: the persistent idea that rape is an easy allegation to make but a difficult one to disprove; that rape trials are about ‘her word against his’. Jordan (2004: 244) has noted that by perpetuating this myth, men have effectively ‘resorted to lying about women’ by perpetuating the lie that ‘women lie’.