Paper presented at Geography of Trials session at the annual meeting of The Association for American Geographers (AAG), Los Angeles, April 9th-13th 2013.
In my paper, I wish to contribute to the emerging field of legal geography through an examination on how masculinity, femininity and sexuality are discursively constructed in Norwegian rape trials, and discuss the materiality of such discourses. During the course of my research and book writing on this topic (Bitsch & Kruse 2012), I have monitored 15 rape trials in four Court of Appeals in Norway, and made interviews with public prosecutors, defense lawyers, members of the jury and the judges.
My empirical data suggest that distinctions are made between “worthy” and “less worthy victims”, and that those ideal types correspond directly with the society’s image of a “real perpetrator”. Whereas the violence of men of color against White women in public spaces are condoned and punished effectively, the most widespread form of rape, those committed by Norwegian men in private spaces, tend to create less moral outrage.
Legal discourse and practice can be read as a spatial and discursive surface, where patriarchy, geography and power become closely enmeshed. In producing and reproducing masculine and feminine gender stereotypes, the legal geography effectively bans certain experiences of sexual assault from complete public and political acknowledgment.
legal geography, gender, rape, sexual violence
First I want to say thanks to the organizers for having me here – it is an honor to get the possibility to present and discuss my research in a forum like this, and I have been looking forward to come here and learn from your presentations too. Briefly on a practical note: Since we have not pre-circulated our papers, I have brought some copies with me, and I will be happy to hand them out after the presentation to those of you who are interested in reading it.
Before I move on, I think a little explanation of the title of today’s paper is required. With the term “the geography of rape”, I refer to how the Norwegian legal system – as a geographically and culturally positioned institution of power – process rape cases. The term aims to illustrate that rape and geography are tied together insofar as the law and the legal practice contribute to the ideological reproduction of the nation through state regulation of sexuality. The term also points to how legal processing of rape cases are embedded with non-legal normative judgments that are spatially and historically distinct for every country and maybe even every jurisdiction.
One of the main points I am going to show today is that the state of gender equality in Norway is not as good as it often is portrayed to be by politicians and elites in positions in power. Behind the good statistical scores on international development and gender equality indexes (UNDP 2012; World Economic Forum 2012), a mixed picture is appearing with elements of impunity in sexual crimes. The public and legal rhetoric is deeply racialized in the sense that sexual crimes committed by men of color get a lot of attention, whereas the most prevalent rapes, those committed by White men, often passes relatively unnoticed.
Although the level of reporting has increased the last 40 years, the level of dismissals are very high, while conviction rates are correspondingly low. According to The Director of Public Prosecutions, 84% of all reported cases are dismissed and 12% end with a conviction. The UN has criticized the Norwegian state a number of times because of this, and for the failure of protecting women’s rights (CEDAW 2012).
The paper I am going to present for you today is a short version of a longer article in progress on witness credibility in Norwegian rape trials, which is part of my doctoral dissertation about how the Norwegian and American legal system process rape cases. I will point to some factors that might be able to explain such impunity. This is a very complex issue, and to be sure, many things have improved the last 40 years. For instance, revisions of the penal code have been made to account more realistically for the many different kinds of sexual assault, and the police have better opportunities to investigate cases due to technological innovations, such as the DNA register. I have met dedicated and experienced legal actors during my fieldwork, but I have also seen some examples of racial and masculine stereotyping that partly can explain the problem of impunity. Today, I will discuss and compare two instances of marital rape – one committed by a man of color and one committed by a White man. The last part of the paper present findings concerning so-called “date rape” cases involving White victims and perpetrators.
Before I proceed to present my findings, I would like to say a few words about methodology and theory. I have observed 15 rape trials in Norway and done qualitative interviews with state prosecutors, defense attorneys, judges and members of the jury. I have also done some textual analysis of rape sentences, both in the cases I observed and of influential Supreme Court decisions. In order to determine whether or not my micro-data align with a larger pattern, I am also in the process of analyzing approximately 300 sentences from the Court of appeals spanning a three year time period. For the purpose of the article in progress, I have especially been working with the human geographer Tim Cresswell’s (1996) work on ideology, geography and transgression presented in the book In place/out of place. My work is also informed by Benedict Anderson’s work on imagined communities, as well as transnational feminist theory on gender and nation (Yuval-Davis 1997).
INTRA-RACIAL RAPE CASES AND RACE STEREOTYPING
In one of the first court cases I observed during my fieldwork, a Muslim man was accused and convicted for one instance of marital rape, and for having abused his wife and kids during a ten year time period. The defendant frequently beat them all and exposed the children to physical and psychological neglect, such as confinement, arbitrary punishment and denial of food. He was sentenced to 4,3 years in prison and to pay US$ 53.000 in redress. The court interpreted the crime as a matter of his culture. The sentence from the district court among other things explicitly stated that: “The defendant’s behavior violates the prevailing attitudes in Norway [and] he is expected to accommodate to the values of the society he moves to.”
To analyze this, one could use the human geographer Tim Creswell’s term transgression as a starting point. Transgression, in the sense of crossing borders, or behaving out of place, is exactly what this defendant does when he violates what is perceived to be the nation’s shared values. His actions are judged in relation to an imagined community of what is perceived to be “Norwegian” and what is considered “foreign”.
When it comes to the display of legal masculinity, I found that the defendant was very well aware of how men from his culture might be perceived by the legal actors in the court. In the courtroom interaction the defendant attempted to negotiate racialized discourses regarding “us and them”. Upon the judges’ questioning about religion, the defendant stated that he was in favor of gender equality and had always given his wife the freedom she needed. Since Muslims in the public debate are often discursively constructed as conservative patriarchs, he interestingly also labeled himself a “Muslim light”. He even brought with him drawings made by his kids and cried a bit.
In doing so, the defendant tries to locate himself in reaction to the culturally and legally dominating discourses about “responsible masculinity” and “fanatic Muslims”. In Tim Cresswell’s (1996) line of thinking, one could say that he attempts to get back in place by downplaying his religiosity. I interpreted it as a strategy to increase his credibility and he attempted to navigate within two contemporary political contexts: 1) the political context of increased Islamophobia, nationalism and xenophobia in large parts of the Western world after 9/11, and 2) the context of Norwegian “state feminist” policies that since the beginning of the 1990s have focused on changing gender roles by engaging men in care work and support “participating fatherhood”.
In another case I observed, a White man was convicted of raping his previous spouse who was also Norwegian. He violently assaulted and penetrated her with his fingers, ejaculated in her face and threatened to kill her. For this crime, the court sentenced him to three years imprisonment and made six months conditional, which means that he only will spend two and a half year in prison. As opposed to the case involving the colored defendant, the victim did not receive any economic compensation at all.
Never, in the two years I have spent in courtrooms around the country, have I seen sexual crimes committed by White men explained as a matter of something distinct about Norwegian culture. On the contrary, rape committed by White men is seen as a deviation from Norwegian culture, though it is much more prevalent than many suspect. The White man’s crime might be considered a transgression in legal terms, but it is never considered a violent attack on the nation.
In the rape trials I observed, all colored defendants got convicted. The state of the evidence was normally very strong and they were often accused of physically violent crimes that left bruises on the victims. There is no doubt that assault rape in public spaces still create more moral outrage and harder punishment than rape in intimate relationships, especially when White people are involved. This is not particularly surprising, though – the same can be observed in many other legislations throughout the US and Europe. It is assault rape committed by a stranger that historically has been the main target of the law. Nearly all White defendants in the trials I observed got convicted too, but in most cases only when strong supportive evidence was available, such as transcripts from Facebook or online communication logs where defendants more or less explicitly confessed to the victim. In none of the trials involving young, White men was there any mention of whether the defendant was part of a larger group of men that treated girls and women disrespectfully. The absence of such reflections indirectly contributes to a construction of the Norwegian nation as a haven for gender equality and human rights.
When these men go to court, defense attorneys often refer to them as “boys” although many of them are in their 20s and 30s. The defense claim that sexually aroused young men cannot be expected to read social cues and therefore unintentionally “misunderstand” female passivity – such as women who are passed out and unconscious at a party. The idea is not that sex should be based on active and consenting sex, but that the victim should resist the perpetrator’s sexual advances and thus protect female sexual purity.
To wrap up this presentation, my research on rape has so far led me to the conclusion that legal discourse and practice can be read as a spatial and discursive surface, where new forms of patriarchy, geography and power become closely enmeshed. On one hand, discourses are tied up with processes of increased Islamophobia in Europe, and on the other hand discourses are influenced by Norwegian “state feminist” policy. In producing and reproducing stereotypes about “dangerous colored masculinity” and “innocent White masculinity”, the legal geography effectively bans certain experiences of sexual assault from complete public and political acknowledgment. We are talking about the rapes committed behind closed doors in private spaces by White men towards White Women.
The point I have tried to make today is that legal judgments and corresponding ideologies of gender, race and sexuality, not are coincidental – indeed they are spatial. Legal norms and judgments cannot just evolve and have similar effects everywhere. They are intrinsic to bio- and geo-politics – for the regulation of actual and racialized bodies, sexualities, and to the ideological reproduction of the nation.
If we, as legal geographers, are concerned with the relationship between space, law and social justice, I therefore believe that an examination of the symbolic and legal status of rape and gender equality is a good place to start and I encourage other geographers to invest more in this topic in the future too.
Thanks for your attention!