1.1 Reconceptualising the Courtroom
The aims of this book revolve around three key themes. First, it sets out a novel theoretical and methodological approach for understanding and responding to social and legal problematics. Second, it develops new insights into criminal justice responses to sexual violenceâwith a focus on rape trials. Third, it calls for an essential re-orientation of criminal justice, criminology and legal studies, in light of the arguments progressed. Indeed, the overall argument developed is that the criminal courtroom needs to be reconceptualised as a complex system and an âaffective assemblageâ. This, we maintain, enables a more informed and realistic understanding of courtroom dynamics and the practice of barristers, which in turn, impacts upon the implementation of measures and policies which aim to improve the criminal justice response to rape cases. In developing this argument, we recognise that the courtroom is a dramaturgical problem space, but one that involves non-representational drama.
Why make this argument? The first is the widely accepted assessment of the failure of existing criminal justice responses to rape and sexual violence (Lees 1997; HMCPSI and HMIC 2002, 2007; Kelly et al. 2005; Stern 2010; Cook 2011; HMIC and HMCPSI 2012) and the continued existence of an âimplementation gapâ (Kelly et al. 2005; Stern 2010; Brown 2011; Cook 2011; Westmarland 2011; Smith 2018), whereby well-meaning measures are either not utilised or produce unanticipated results (see e.g. Carline and Gunby 2017). More radical and progressive work is therefore undoubtedly required to advance the area and to improve the experience of victims. Second, this book was conceived in the light of empirical work focused on barristersâ perceptions and practices in relation to criminal justice responses to rape (see Gunby et al. 2010; Carline and Gunby 2011, 2017, 2019; Gunby and Carline 2019; Carline et al. in press). What brought this project together was the realisation that advocatesâ views and approaches to the courtroom revealed a legal worldâa courtroom assemblageâwhich was very different from the doctrinal/socio-legal and representational model of that world. The data revealed that barristers lived and worked in a primarily material, affective and non-representational legal world, where orthodox understandings of law played at very best, a marginal role.
Thus, with reference to the three key themes we develop in this book, we maintain that it is not possible to devise effective criminal justice responses to rape until a thorough reconceptualisation of the criminal courtroom, as a complex system and an affective assemblage, has taken place. This reconceptualisation, in line with the legal world presented in barristersâ interviews, is of the criminal courtroom as a matter of pragmatics, deployment and marshalling of affects, sense-making and the production of emergent truths.
In developing our key themes, there are a number of ramifications, implications, supplementary arguments and theoretical concepts to set out here, prior to elaboration in later chapters. First, there exists what is known as an âintensive ontological registerâ to the social field and this book emphasises the necessity of taking up a Deleuzian ontology. This involves understanding the criminal courtroom as having a double existence. Namely, it exists on two very different but adjacent and interacting levels: one which is actual and extensive (which is ontology as we conventionally understand it) and the other which is real but intensive, concepts we explain in detail in Chaps. 2 and 6. Second, we argue that barristers, and indeed many court protagonists, intuitively operate in this intensive ontological field and have a rich appreciation and experience of working this register of the courtroom. Third, to our knowledge, there has been no utilisation of an ambitious theoretical framework like this to understand the courtroom as an intensive ontological field, or of how legal actors might intuitively work within this field. Relatedly, there has been no empirical exploration to date of how barristersâ self-reflections on their professional practice evidence an intuitive understanding and participation within the intensive courtroom. Fourth, we maintain that the approach adopted in this book will improve our understanding of practitionersâ perspectives and practices on the implementation of measures introduced to improve criminal justice responses to rape and sexual violence. Finally, there are significant methodological implications stemming from the approach developed here. These pertain to the adoption of a theoretical methodology of problem space, problematics and phase space, for thinking and working with affective assemblages, as well as the utilisation of a discursive empirical methodology for conducting and analysing the barrister interviews. This chapter will briefly introduce these methodologies.
To review, the overall aim of the book is to reconceptualise the criminal courtroom as a complex system and an affective assemblage. In so doing, we focus in particular on the changes to the substantive law introduced by the Sexual Offences Act 2003 (specifically, the consent definition, presumptions and reformed mens rea), the introduction of judicial directions on âmistaken assumptionsâ and the implementation of âspecial measuresââprovisions which aim to support and protect the complainant during the trial process. Our reconceptualisation drives the development of a reflexive set of pragmatic and speculative techniques for examining, participating and intervening in...