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Yxta Maya Murray, Rape Trauma, The State, and the Art of Tracey Emin, 100 Cal. L. Rev. 1631 (2012).

Despite reforms in the elements and evidentiary rules concerning rape and sexual assault crimes, successful prosecutions often face more practical narrative problems in convincing the jury of the credibility of complainants when the timing and manner of their accusation falls outside of how jurors may imagine the normal rape survivor would present herself to authorities. The proper place of psychiatric and psychological expertise about what is sometimes denominated “rape trauma syndrome” in trials and proper instruction of jurors in those trials has been the subject of serious critical debate among feminist legal scholars and rape survivors for twenty years. The sharp question of whether individual rape survivors or rape survivors as a class benefit from the ability to describe the rape survivor whose complaint comes “late” or is delivered in a flat and calm affect to police or medical authorities as suffering from a syndrome remains unresolved, and the same dilemma emerges in the domestic violence realm with “battered women’s syndrome evidence.”

Yxta Maya Murray brings us into this long and always troubling debate quite literally with the example of British artist and rape survivor Tracey Emin, whose work is both quoted and depicted in rare law review color photos. This article stands out amongst the many great criminal law articles that I’ve read in the past couple of years because it combines empirical social science, art, and humanities analysis, which gives us new purchase on concrete legal questions that have already received a great deal of both conceptual and empirical research.

The background empirical facts go to the troubling persistence of limited reporting of rapes and sexual assaults in both the US and England, despite decades of official cultural work to validate rape survivors. Perhaps more troubling—even when women victims do report—careful empirical analysis of case survival in several common law countries shows a strikingly high level of case deterioration and termination at both investigatory and prosecutorial stages. Both qualitative and survey research suggests that hostile, or at least insensitive, treatment by frontline workers in both the medical and legal settings is a major contributor to case failure in common law legal systems despite the substantial legal reforms. Evidence suggests this hostility and insensitivity is considerably more acute for victims of color, for those who are homeless, living with mental illness or addiction, gender non-conforming, or are sex workers—factors that can be additive.

In bringing Tracey Emin’s story and art to the discussion, Murray helps to directly address one of the concerns expressed by feminist critics of rape trauma syndrome evidence as it is currently narrated in courts: RTS accepts a normal rape survivor profile drawn disproportionately from victims who are relatively privileged in terms of the variables highlighted above. The product of a longtime affair between her white English working-class mother and her married Turkish immigrant entrepreneur father, Emin and her twin brother grew up facing harsh racial discrimination in a working-class English town during the 1960s and early 1970s. Emin survived repeated sexual assaults as a child at the hands of one of her mother’s lovers (“Chris” who is also called “sex man” in some of Emin’s powerful works of textual art) and at age 13 by a teenaged boy who dragged her down an alley and raped her a few minutes before midnight on a New Year’s Eve as she hurried to get to a local nightclub. After struggling to regain her sense of self through a period of promiscuity and suffering from more rejection and the humiliation of her local peers, Emin eventually won international recognition for a body of highly unconventional genre-crossing art work.

Murray reads Emin’s multiple references to her rapes and her direct calling out of her rapists as, in effect, an imaginary trial, or series of trials, to replace the state criminal justice system that she never sought or received from the English state. These works, some pictorial, others quilts with words, and several hand-written pieces of paper, testify to the assaults and the contexts which enabled them. They also bring us the words of her rapists, who as defendants would likely not have taken the stand, and the real “defenses” they would have relied on to win jury sympathy, many of them turning on the uniquely English misogynist phrase “slag” for a degraded woman who presumably wants or deserves the violent sexual assault she is receiving.

Emin’s work clearly does not constitute a realistic depiction of a rape trial in either England or the United States, but it does give us an aspect of the rape survivor experience that explains the absence of other survivors like Tracey Emin in real trials (which Emin never sought). For those survivors, the prospect of rejection, hostility, or even more violence from the state and its frontline workers overwhelms any promise that the gentler treatment later in court can hope to assuage.

If Emin’s art is her own way to use the trial as a form of ordeal to both seek public justice and heal, she and Professor Murray point us to a different way of understanding the work of those survivors today who do submit themselves to the ordeals involved in even the earliest stages of the legal production of a sexual assault case. Consider the powerful tide of concern among rape survivors and their advocates that has arisen around the accumulation of untested rape kits in American police crime labs. Against the apparent reluctance of legal authorities to pay for testing for DNA in cases that either do not progress or will not turn on a question of identity, many survivors clearly view those kits as a form of public truth that they have gone through a great ordeal to produce.

In the end, the implications Murray draws out for the debate about rape trauma syndrome testimony is a modest but subtle and original one. If the goal is to explain survivor non-conformity, then, victims like Tracey Emin let their subjected position be a creation rather than a pathology; a stoicism willed to protect and ready the survivor for the difficult course of public justice seeking. Those insights are important, but so is the experiment of looking to art in dialog with social science findings to understand the stakes for law.

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Cite as: Jonathan Simon, Not “Just the Facts”: Art, Rape Survival, and Imagining Law Reform, JOTWELL (February 18, 2014) (reviewing Yxta Maya Murray, Rape Trauma, The State, and the Art of Tracey Emin, 100 Cal. L. Rev. 1631 (2012)),