LAW AND IDEOLOGY

• NCJ Number: 64021
• Journal: Deviance et societe Volume: 3 Issue: 1 Dated: (MARCH 1979) Pages: 69-76
• Author(s): A KRYWIN
• Date Published: 1979
• Length: 8 pages
• Corporate Author: Editions Medicine et Hygiene
• Publication Format: Article
• Language: French
• Country: Switzerland

Annotation

BELGIAN LEGAL PROVISIONS CONCERNING RAPE AND THEIR IDEOLOGICAL BACKGROUND ARE ANALYZED.

Abstract

RAPE REGULATIONS IN THE BELGIAN CRIMINAL CODE ARE STILL GUIDED BY PRECEPTS ORIGINATING IN 1867 AND HAVE TO BE EVALUATED IN THE FRAMEWORK OF 19TH CENTURY IDEOLOGY WITH ITS EMPHASIS ON THE BOURGEOIS FAMILY, DIGNITY, AND RESPECTABILITY. KIDNAPPING, CHILD MOLESTING, PROSTITUTION, AND RAPE WERE CONSIDERED AS CRIMES AGAINST THE FAMILY STRUCTURE. AT THAT TIME, RAPE WAS NOT LEGALLY DEFINED; IT WAS UNDERSTOOD THAT EVERYONE KNEW WHAT WAS MEANT. SINCE THEN, JURISPRUDENCE HAS GRADUALLY DEFINED THE ELEMENTS OF RAPE; A MALE (AND ONLY MALE) OFFENDER, A FEMALE (AND ONLY FEMALE) VICTIM, AND COMPLETED ILLICIT SEXUAL RELATIONS WITH A NONCONSENTING VICTIM OBTAINED THROUGH VIOLENCE, TRICKERY, OR MENACE. SINCE RAPE IS STILL CONSIDERED AN OFFENSE AGAINST THE FAMILY (RATHER THAN AGAINST AN INDIVIDUAL PERSON), RAPE BETWEEN MARRIED PEOPLE IS VIRTUALLY IMPOSSIBLE FROM A LEGAL POINT OF VIEW. THE CENTRAL CHARACTERISTIC OF RAPE IS THE CONCEPT OF NONCONSENT WHICH IN THE 19TH CENTURY WAS DEFINED AS (1) THE VICTIM'S CONSTANT AND UNABATING RESISTANCE, (2) A DEFINITE SUPERIORITY IN THE OFFENDER'S STRENGTH, (3) THE VICTIM'S AUDIBLE CRIES FOR HELP, AND (4) TRACES OF VIOLENCE LEFT ON THE WOMAN'S BODY. THESE PRINCIPLES PARTLY GUIDE MODERN SENTENCING PROCEDURES, AND IF THE WOMAN IS NOT 'A GOOD RAPE VICTIM' (I.E., DOES NOT BEAR TRACES OF PHYSICAL VIOLENCE ON HER BODY), IT IS UP TO THE JUDGE TO PRONOUNCE ON THE WOMAN'S CREDIBILITY, WHICH IS ULTIMATELY A JUDGEMENT ON HER MORALITY. DID SHE PROVOKE THE ATTACK? DID SHE MAKE HER REFUSAL CLEAR TO THE AGGRESSOR? (AFTER ALL, WOMEN ALWAYS SAY 'NO' AT FIRST.) UNTIL TODAY, RAPE LAWS REMAIN A FUNCTION OF IDEOLOGY, OF TRADITIONAL MALE-FEMALE RELATIONSHIPS, AND OF WOMEN'S CONVENTIONAL ROLE IN SOCIETY AND THE FAMILY. IT IS UP TO THE WOMEN TO CHANGE THESE RELATIONSHIPS: THE COURTS WILL FOLLOW. --IN FRENCH. (SAJ)