Can a Prostitute be Raped? Sex Workers, Women and the Politics of Rape Law Reform

It is widely acknowledged in the literature that sex workers suffer a high incidence of sexual assault at the hands of their male clients. Until recently, however, it was almost impossible for sex workers to seek justice for these crimes through the legal system. Charges of rape made by sex workers were often not taken seriously by the police and courts. Moreover, in common law systems - like Britain, Australia and Canada - evidentiary rules severely limited the likelihood of a prosecution. Courts accepted complainants past, present or even rumoured occupation in prostitution as relevant evidence in a rape trial. Prostitutes were regarded as inherently unchaste and untrustworthy; as ‘common’ women they were seen as always consenting to sex and they could not therefore be raped. This paper examines the position of prostitutes (and of ex-prostitutes and women seen to behave ‘like prostitutes’) in reported rape trials in Britain, Australia and Canada over the last 150 years. It describes the development and use of the evidentiary rules noted above. It also explores some significant changes that have appeared in the last 10 years; under some circumstances, sex workers are now able to successfully prosecute their rapists. The paper examines these circumstances and argues that rape law continues to compromise the citizenship of sex workers and all women