What question did this study set out to answer?

The aim is to address systemic failures in the rape law framework and redefine the responsibilities surrounding penetration.

June 7, 2026Open Access

Jonathan Herring and Sorcha McCormack: Shifting the Spotlight in the Law of Rape: The Responsibilities of Penetration

MSMarthe Goudsmit SamaritterMax Planck Institute for the Study of Crime, Security and Law

Key Points

The aim is to address systemic failures in the rape law framework and redefine the responsibilities surrounding penetration.
Analysis of data from Rape Crisis and the Office for National Statistics
Examination of the legal definition of rape and its implications on victim experiences
Discussion on the perceptions of justice among survivors of sexual assault
Only 14% of survivors believed reporting to the police leads to justice.
An estimated 2-3 out of every 1000 rapes result in a conviction in England and Wales.
Victims face an average wait of over two years for their cases to reach court.

Abstract

Rape law is in crisis.That picture is painted clearly in Jonathan Herring and Sorcha McCormack's Shifting the Spotlight in the Law of Rape: The Responsibilities of Penetration.Drawing on data from Rape Crisis, the Office for National Statistics, and the Victims' Commissioner, the authors paint a picture of a system that fails victims at every stage: from reporting, through investigation, to trial.In England and Wales, an estimated two to three out of every thousand rapes lead to a conviction (Rape Crisis 2024a).Victims who do report face an average wait of over two years before their case reaches court, and when it does, the trial process itself can be deeply retraumatising (Rape Crisis 2024b; Victim Support 2024).Herring and McCormack note the striking evidence that when survivors of sexual assault were asked whether victims could obtain justice by reporting to the police, only 14% agreed (Molina and Poppleton 2020, p. 4).In Shifting the Spotlight in the Law of Rape, Herring and McCormack argue that a fundamental cause of these failures lies in the legal definition of rape itself.Their response is straightforward: a person who penetrates another person bears the responsibility for ensuring that the act of penetration is justified.As a result, it is the defendant, and not the victim, who has to answer questions about the way they sought to ensure the necessary consent for penetration was present.The conclusion is radical: the victim's consent is irrelevant to the offence of rape, and in its place the law should ask only whether the defendant held a reasonable belief in consent, richly understood.A defendant who sought to ensure they had the necessary justification for their act of penetration may typically be said to have acted with respect for the victim's sexual autonomy.Notably, the authors focus specifically on men's rape of women -not because other types of rape are not considered sufficiently important to warrant consideration, but because, they say, the particular prima facie

Ask AI

Helpful

Bookmark

View Full Paper