Greer is right to say rape law has failings, but wrong to suggest its decriminalisation

Germaine Greer is a provocateur of long standing. Her recent comments about rape enhance that reputation.

We accept Greer’s premise: rape law has profound and persistent failings. The #metoo movement has made vivid what rape researchers already know: rape is common.

While reports to Australian police have risen, reporting and conviction rates remain low. Greer claims proving rape is too difficult, and rape without physical injury doesn’t warrant prosecution.

However, her account of the harm of rape is flawed, and her proposed solutions do not engage with the proper role of rape law within the criminal justice system.

“Rape” has a legal meaning and a social meaning.

In law, rape centres on whether the accused knew the other person was not consenting. As illustrated by recent high-profile cases in the US, UK and Australia, non-consent is tough to prove. Proving knowledge of non-consent in the face of gendered expectations about sexual behaviour can be even more difficult.

Read more: Rape, sexual assault and sexual harassment: what’s the difference?

Greer is right to challenge the stereotype of rape involving a stranger using violence and causing physical injury. This stereotype impedes reporting and successful prosecution. Many who experience rape (as defined by law) do not call that experience rape even if they feel distressed, uneasy, or traumatised. Many who have committed rape under the law do not recognise themselves in the stereotype of the rapist.

Most rapes are committed by partners, ex-partners and acquaintances; these happen in the home and not the stereotypical dark street.

Greer characterises “most rape” as “lazy … careless, insensitive”, giving the example of a husband taking his “conjugal rights” — rights the law no longer recognises.

However, the real difficulty for the law is not in failing to see this as rape. The absence of consent renders it rape unless the husband is believed when he says he thought his wife was consenting. Greer misses the primary reason the husband’s defence could succeed: the absence of social consensus that consent is needed in an ongoing relationship.

Greer’s dismissal of “harm” also illustrates how misconceptions about rape inhibit prosecution.

Greer calls “bullshit” on rape as a crime of violence and correctly states most rapes do not cause physical injury. However, the crime of rape focuses on bodily autonomy. The law recognises that being subjected to non-consensual sex is dehumanising. It denies the victim the human dignity of choosing who is permitted sexual access to their body and when. Greer fails to acknowledge this breach of bodily autonomy that lies at the heart of rape as a crime.

Speaking as a rape survivor, Greer says society wanted women to believe that rape destroyed them. But “We haven’t been destroyed, we’ve been bloody annoyed.”

Historically, women were men’s legal property. Sexual activity outside of marriage, including rape, ruined women’s value as property. Long after women gained legal personhood, it destroyed women’s reputation and prospects.

Women need to be able to report rape without believing they will be “destroyed”. We must be able to acknowledge this, without telling people who experience rape how they must or should feel.

The law and the social conversation about rape need to acknowledge that rape is real, common, damaging and sometimes physically violent. In doing so, we need to take care not to further traumatise survivors and foreclose stories of survival, resilience and recovery by holding out that rape is so damaging that people cannot recover from it.

Research bears out Greer’s assertion that rape does not destroy everyone who experiences it. Recovery is real and possible. However, research also shows rape can create intense and long-lived suffering.

Feminist activism initially demanded that rape be acknowledged as unacceptable and damaging. The #metoo movement builds on this recognition, teasing out in greater complexity the forms rape and sexual harassment can take and the harm this can cause.

Greer proposes reducing rape penalties in return for women being believed without giving lengthy evidence in court – a suggestion that fails to accord with procedural justice.

The #metoo movement also demands better criminal justice responses to rape. In response to perceived failures in criminal justice and workplace protection, women are publicly disclosing rape and sexual harassment, exposing alleged perpetrators to social and workplace sanctions and demanding these accounts be believed – but are not proposing a reduction in penalty.

Read more: Rape is a plot device in western literature, sold back to us by Hollywood

The #metoo movement has shown us that women are no longer prepared to tolerate legal inaction on sexual harassment and rape. It has returned to strategies of self-help and mutual aid that feminists advocated before contemporary laws on rape and sexual harassment were won. It should not be confused with calling for rape to be decriminalised, or for rapists to be convicted without legal process.

On paper, rape looks like a serious crime with a heavy penalty. Yet reporting and conviction rates are so low that rape is virtually untouched by the criminal law.

Most rapes never reach the police and fewer still result in a trial. If police and courts are the services offered to people who experience rape, most of them are choosing not to use those services. This suggests Greer is right when she says: “the system [is] not working, and radical change [is] needed”.

If “do no harm” is the measure of success, rape law fails here too. Most rapes do not enter the legal system, let alone result in convictions, and other choices are not being made widely available.

Greer’s proposals would effectively decriminalise rape: a widespread, serious crime that causes profound suffering. We believe rape should remain a crime, reflecting the value we place on bodily autonomy. We should recognise the failures of the legal system as driven by persistent stereotypes about rape, society’s refusal to believe women and accept that rape occurs within relationships, and the continued preparedness to protect men who abuse women.

The #metoo movement has reopened discussion of the barriers to protecting women’s bodily autonomy. To accept decriminalisation of rape and normalise it, as Greer suggests, fails to recognise bodily autonomy as a key marker of humanity to which women are entitled.