Question Everything? Rape Law / Free Speech

by | 28 Nov 2013


Lithograph 1942 by Norman Rockwell

Question everything” is an injunction that regularly surfaces in libertarian political circles. But aside from the fact it rarely becomes the focus of its own exhortation, how does the command to question and challenge consensus and orthodoxy deal with the consequences of such actions? When are speakers responsible for what their words do? And to what extent are social claims, including of less powerful constituencies, vulnerable to becoming “orthodox-ised” so as to form a legitimate subject of “free speech” advocates’ interrogation?

In the UK, these questions have garnered attention in recent weeks following a high-profile public debate at the LSE: “Is rape different?”, which in turn followed publication of “Rape Myths: Is Elite Opinion Right and Popular Opinion Wrong?” a controversial article by LSE academic Helen Reece in The Oxford Journal of Legal Studies. In it, Helen took issue with feminist claims about popular rape assumptions, challenging the notion the public hold a series of erroneous beliefs about rape. Helen’s article, and the LSE event, have given voice to polarised, at times acrimonious, debate. While some academics and sections of the press have taken up her arguments, many feminists have expressed intense disquiet. To date, over seventy-five people have signed a statement condemning the LSE for holding and defending the event: see feminists@law; others have written critical blog responses: see Critical Legal Thinking. These, in turn, have generated counter articles, tweets and on-line comments defending “free speech”: see Spiked.

At one level, the conflict concerns how criminal law and procedure treat (and should treat) rape — whether “ordinary” people have a series of beliefs about rape that make them less sympathetic (than they should be) to women victims. At another level, the conflict is about speech — about what speech is, what it does, and our responsibility for its effects. Helen poses the question, why is rape different? But, in the face of “free speech” calls to defend academic freedom and the right to question everything, I want to ask, why is speech different? Is it privileged simply because expression and communication are privileged, or because it represents an exceptional way of expressing opinion or questioning received norms?

Is speech different?

Certainly, there is a consensus that the latter is true. But, if we are in the business, as Helen suggests, of questioning received truths, this also seems like one worth questioning. Opinions, norms and values can be expressed and challenged in all sorts of ways without foregrounding speech as a performative mode, ie, as the way views should be communicated or staged. The history of political activism demonstrates many such examples: from withdrawing one’s labour and economic boycotts to kissing someone who is socially stigmatised; giving away one’s wealth; burning a national flag; gender-subversive dressing; and sitting at the front of the bus. These forms of expression may be straight-forward for radicals and critics to support. But of course views (and knowledge claims) can be expressed and critiqued in other ways — through violence or in the withdrawal of services from people because they’re gay, female, or black.

In the face of “expressive” violence, it is tempting to see speech as a less harmful mode, even as generations of activists and others have drawn attention to the injuries socially and personally derogatory speech can cause. Free speech advocates adopt the position: fight back “through robust public debate”; if you’re offended that is your responsibility; recipients of speech can control what speech does to them. The agency of those on the receiving end to turn around their (collective) experience of speech is a complex issue, perhaps especially in those cases where hostility is not intended — as in the London eruv controversy, where opponents argued that they would feel like they were entering a ghetto or shtetl whenever they crossed the eruv’s largely invisible perimeter.

But while we might productively explore our response to such claims of symbolic harm, I am struck by the fact that for many free speech advocates the only speech deemed harmful, and so impermissible, is the “no platform” demand. This is presumably because such a demand is seen to invoke non-linguistic forms of institutional power in order to close down speech (although if “no platform” demands are successful, this is often because they in fact generate speech acts — whether in the form of statute, case-law, or public institutional injunctions). Speech, though, and not just “no platform” speech, is inextricably mixed with other kinds of action, as Judith Butler has usefully explored, critiquing the “academic freedom” claims of those wishing to protect exchanges with Israeli universities. Mixing takes shape in the preconditions that makes speech possible, interesting and intelligible; in the social forces that take up particular claims; and in the material and discursive effects social speech has (intended and otherwise).

What speech does?

Advocates of “robust debate” tend to treat speech as akin to a missile system, where discrete units of meaning pass back and forth between fully intentional, fixed subjects (whose interests, concerns and agenda are clear and prior to any engagement). Meaning though is far more collaborative; it also evolves and changes in the course of communication.

In her article on rape, Helen Reece addresses the contextual nature of speech when a woman invites a man back for a post-date coffee. She considers that the meaning of such actions may be contested and ambiguous, and that responsibility for rape – in the sense of making it more likely – is not the same as moral culpability. Thus, Helen is attentive to what speech can do – how it can lead to physical action that may be far from desired. What doesn’t receive the same recognition (or respect), either from her or her defenders, is what such critical claims, given the particular geo-political context of their siting, might also accomplish. These effects are not necessarily desired or sought, but if responsibility includes making something more likely as Helen suggests, it also implies a capacity to address, respond to and, I think, bear some of the weight of the many outcomes that follow.

Getting at the truth?

One problem with free speech claims is it separates the goal of “getting closer to the truth” from other speech effects. Only the former is recognised as a relevant outcome, to which attention can be legitimately paid. Unfortunately, however, wishing isn’t accomplishing. Moreover, if the “truth” is what’s at stake – with other consequences no more than mere collateral — how can such truth be reached? Is there, indeed, an ‘it’ to be reached? Helen’s opponent is flabby un-interrogated knowledge, vulnerable to flaying from the sharp sword of reason. This may sound intuitively sound, particularly for an academic. But the jury, I think, is out (is perhaps necessarily out) on whether flaying generates the better knowledge promised. This isn’t to reject analysis and intellectual engagement. However, those who claim that the truth emerges from arguments won (rather than from more collaborative, perspectival and multi-faceted approaches) need to put more effort into showing this is the case.


Maybe what we need to do is leaven our empirical battles over competing facts (which often go nowhere except into an endless cycle of competing facts) with engagements — conversations — about the world that is sought. To ask: for what political dreams, ambitions and projects are facts about rape law being marshalled? What relationship, complex and unpredictable as it may be, exists between the effects of our (speech) actions and social change? How can pragmatism and ideals combine, particularly in the thorny case of the criminal law?

For more than two decades, feminists have been at the cutting-edge of new approaches to knowledge, sceptical in their refusal to rely on liberal reason. It’s tempting in episodes such as this to hunker down, and rely on facts and logic to do feminist work. Maybe feminists can use liberal reason to “win the argument” over rape beliefs (what they are and what they do), but more useful, I think, is to insist on addressing those drivers of the conflict that shape the various stances adopted — beyond the terrain of professional stakes and investments. This is not, fundamentally, about a “winning” interpretation of rape statistics but our views on the kind of society we seek.

Davina Cooper is Professor of Law and Political Theory at Kent Law School, University of Kent.

Reposted from:


  1. Prof Cooper, I’m coming late to the debate and wondered if you could quickly explain what you mean by “no platform” speech?

  2. Daniel, thanks for your question. ‘No platform’ is the political demand that certain groups should not be given a legitimizing public stage due to the nature of their claims. It had a particularly high profile in 1980s Britain when the left argued no platform for fascist groups speaking at universities, an argument in turn countered by the right, the Thatcher government and some libertarians.

  3. Dear Professor Cooper,

    I’m afraid I didn’t find this article completely clear. As such, would you mind expanding on a few points?

    Firstly, you write that Reece,

    ‘con­siders that the mean­ing of such actions may be con­tested and ambigu­ous, and that respons­ib­il­ity for rape – in the sense of mak­ing it more likely – is not the same as moral culp­ab­il­ity.’

    You then go on to say that,

    ‘if respons­ib­il­ity includes mak­ing some­thing more likely as Helen sug­gests, it also implies a capa­city to address, respond to and, I think, bear some of the weight of the many out­comes that follow.’

    Are you in fact saying that victims are culpable in some way?

    Secondly, in the same paragraph you write that,

    ‘Thus, Helen is attent­ive to what speech can do – how it can lead to phys­ical action that may be far from desired. What doesn’t receive the same recog­ni­tion (or respect), either from her or her defend­ers, is what such crit­ical claims, given the par­tic­u­lar geo-​political con­text of their sit­ing, might also accom­plish.’

    Would you please explain which ‘critical claims’ you are referring to? Are you referring to the claims that rape myths lead to unfair conviction rates?

    Kind regards,

  4. Thanks Benn, for your comments and well-spotted ambiguity!

    I think, for me, the concept of responsibility has to mean more than being a causationally contributing factor in something happening. There is a sense, with responsibility, of being held to account, and so we can argue about when and who this should apply to. Responsibility, for me, also suggests a capacity to make things otherwise, that the situation is one that you can address or change at least to some degree. You can be responsible without necessarily wanting or willing particular outcomes but I think there needs to be some kind of implication. Academics, I think, bear some responsibility for what they write and for what happens to what they write. Not in all times and places, of course. But I don’t think the claim that is sometimes made, “I’m just pursuing the truth”, is sufficient to displace this responsibility.

    The “critical claims” I am referring to are those which seek to deconstruct or critique feminist arguments and evidence about rape. My argument is not that there shouldn’t be debates about rape law or rape cultures but that, as academics, we do often, if not always, make decisions about which conversations we enter (and which we don’t), and as progressive or radical academics we make decisions about where we critique other radical claims and where we don’t. These are political choices. But they are also about the collaborative nature of creating knowledge and the way speech is enmeshed with other action, so what our words do (and mean) depends a lot on context, and to some (if limited) degree we choose the context based on the work we hope our words will do.


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