2.1 Asymmetrical visuality in legal judgment: the second Ched Evans appeal

In Evans, the Court of Appeal overturned a well-known footballer's rape conviction and ordered a retrial on the basis that fresh evidence had come to light of consensual sexual activity between the complainant (‘a woman (whom we shall call X)’Footnote ⁵) and two other men (‘Mr Owens’ and ‘Mr Ripley’). The Court held that the fresh evidence bore a similarity to events as described by Evans in his own evidence that ‘cannot reasonably be explained as a coincidence’, and hence was relevant and admissible under the Youth Justice and Criminal Evidence Act 1999, section 41(3)(c)(i).Footnote ⁶ The importance of this judgment for us here is not that it sets a new legal precedent, and indeed its significance on this measure is actually somewhat limited. For one thing, the judgment is contingent upon a very specific set of facts; for another, and despite its controversy, its ruling that evidence relating to sexual relations with people other than the defendant could be admissible at trial was not a departure from previous authority.Footnote ⁷ The case is important, however, and for two reasons that stem from the fact that it engages the question of the relevance of the complainant's own sexual behaviour. First, it affords valuable information about the judiciary's awareness of and sensitivity towards concerns about rape myths and victim blame, and provides a fresh opportunity to examine how the courts navigate this difficult terrain (considered more broadly in the following subsection).Footnote ⁸ Second and relatedly, it provides an opportunity to examine how legal discourse engages notions of the visual, and how visuality as a conceptual framework can assist our understanding of criminal justice responses to rape and sexual assault. Given the intertwining of these two reasons for according significance to Evans, this section addresses them together, focusing first on the framing of the facts of case and then moving on to consider the judicial reasoning.

Reading the judgment for clues about how its presentation of the facts sets up an engagement with notions of rape myths and visuality therefore, a number of factors are noteworthy. In the first place, we learn that one of the two men who came forward to give what finally turned out to be decisive evidence about a sexual encounter he had had with X (Mr Owens) was motivated to do so by his personal view that X did not conform to his image of a typical rape victim. For him, a woman who truly had been raped would (or should) not have been out clubbing and engaging in casual sex ‘so soon after the rape’, as X had done, and must therefore be lying and ‘motivated by greed’.Footnote ⁹ The testimony of consensual sex provided by those two men that the Court considered at length alongside that of the defendant furthermore implicates readers of the judgment in a collective voyeurism. Indeed, the text of the judgment is dominated by graphic descriptions of X's sexual life: her apparent preference for casual and often drunken sexual encounters, to have sex ‘on all-fours’, to direct and initiate changes of sexual positions and to demand loudly that partners should ‘fuck [her] harder’.Footnote ¹⁰ It was these particular details that the Court decided were so similar to the defendant's own testimony that a retrial should be ordered, at which those details could be heard by a jury.

Two further features that intensify a visual reading are the fact that the legal developments unfolded in the intense glare of the media gaze, and that this gaze was itself mirrored by an act of voyeurism on the part of the defendant's friends. The judgment refers to two men who, knowing that Evans and another man (MacDonald, co-accused but acquitted at trial) were in the ground-floor bedroom with X at the hotel, were seen attempting to watch the incident from outside and to film it on their mobile phones. This attempt was thwarted at a certain point when the curtains were closed. The night porter too is described as having ‘listened outside the door for two to three minutes [until] he concluded that a couple were having sex’, although there is no suggestion in the judgment that, in doing so, he was motivated by anything but his professional duty as night porter, nor that he deviated from that duty.Footnote ¹¹ Like the concealing of the complainant's identity by referring to her euphemistically as ‘X’ (co-incidentally the letter traditionally designating censored content), we might think of this blocking of the view as simultaneously veiling and drawing attention to the object or image that the sexual subject desires to see.

The impression we get of X and her role on the night in question is that she was essentially an image in the window and a shared object of fascination for various observing (and listening) males.Footnote ¹² This impression is furthermore strangely echoed by X's passivity as a party in the criminal proceedings that followed. Although X did make a report to the police, she never actually alleged that she had been raped, nor even that she was incapable of consenting to intercourse. Rather, she maintained that she was simply too drunk to recall anything about it at all.Footnote ¹³ The evidence of non-consensual intercourse on which the prosecution case rested was all volunteered by Evans and his co-accused themselves when questioned by policeFootnote ¹⁴; likewise, the fresh evidence that focused on X's consensual sexual encounters with other men was a conversation between lawyers, former sexual partners and judges from which the complainant herself was conspicuously absent. In further contrast to the talkative Evans (who appeared on television with his partner to confess to and apologise for ‘my act of infidelity’Footnote ¹⁵), X herself made no public statement about the case at any point, despite the often vicious personal criticism directed at her on social media.Footnote ¹⁶ X's silence and self-concealment reflect the crux of the prosecution argument in the appeal that details of X's behaviour during consensual sexual acts are not admissible as evidence and, as such, should not be revealed to a jury. These gestures of concealment confirm X's status as the object of public attention and surveillance, rather than a speaking, responsive subject in her own right (see Quinn, Reference Quinn2002).

The Court acknowledged the relevance of these different manifestations of voyeurism and concealment in its characterisation of the central legal issue in terms of the justifiability of ‘indulg[ing] in a forensic examination of [X's] sexual behaviour with others’.Footnote ¹⁷ As discussed in the following subsection below, the Court did indeed decide that such ‘indulgence’ was justifiable, on the basis that the testimony from the two other men of their sexual activity with X would be relevant and admissible evidence at trial on the question of consent. The Court thus conferred a serious moral and legal purpose to a fixation on X's sexualised body that would otherwise be mere prurience or voyeurism. However, this serious purpose of ensuring that ‘relevant’ evidence is heard at trial does not overcome the troubling sexual politics necessarily engaged by the ruling (Biber, Reference Biber, Martin, Scott Bray and Kumar2015; Young, Reference Young, Hayward and Presdee2010). For example, does the Evans judgment imply that the exposure of X's sexuality is legitimated by her apparent lack of sexual restraint, innocence and modesty?Footnote ¹⁸ Are we to think of the decision to allow the scrutiny of those potentially damaging sexual details as in some sense X's ‘just deserts’? As we have seen, this sense of restoring a perceived moral balance certainly seems to have been effective in generating the crucial fresh evidence. The following subsection examines this line of thought in more depth.

2.2 Visual metaphor in feminist writing on sexual offending

I have now outlined some ways in which Evans invites a visual reading: from the voyeurism of its actors, to the asymmetry between X and her antagonists during the case proceedings, to the legitimisation of the exposure and scrutiny of her sexuality by the Court of Appeal. These elements in combination and their potential implications for gender, sexuality and criminal justice may be analysed further in light of relevant feminist scholarship. The latter can itself also be characterised in terms of visuality, and in three primary respects. The first of these is that feminist scholarship on rape myths tends to proceed by debunking the mythical (that is to say, false or misleading) image or vision of rape: that of the ‘stranger in the bushes/alleyway’ that implicitly discredits rape committed by friends, intimate partners or former partners, at home or some other familiar place, without physical injury (Ellison and Munro, Reference Ellison and Munro2013, p. 299). The second is the critique of the way that women's morality and sexuality can become the subject of forensic inspection, and that this can be allowed to impact on how jurors and other legal actors assess female complainants. Complainants may be judged to have ‘precipitat[ed] their own attack’ by (say) becoming too intoxicated to ward off predictable male sexual advances (Finch and Munro, Reference Finch and Munro2007; Gunby et al., Reference Gunby, Carline and Beynon2010; Hickman and Muehlenhard, Reference Hickman and Muehlenhard1999) or else to have failed to observe traditional sex-role expectations as gatekeepers of sexual morality (the initiator role being a masculine one) (LaPlante et al., Reference Laplante, Mccormick and Brannigan1980; Masters et al., Reference Masters2013; Sakaluk et al., Reference Sakaluk2014). The third is that discussions of consent may implicitly give undue weight to visual or at least non-verbal ‘signs’ of sexual willingness that might in some circumstances be allowed to undermine a complainant's own testimony (Rees, Reference Rees2012).

For the Evans Court, it was the second of those aspects of visuality described above that presented the nub of the relevant legal problem. However, what characterises feminist rape-myth scholarship more broadly is a concern about what the judging subject (be it the juror, judge, police officer, lawyer, member of the public, etc.) sees in a rape complainant and/or defendant. For example, Ellison and Munro (Reference Ellison and Munro2009) pithily summarise their mock-jury research in the short title of their paper – ‘Turning Mirrors into Windows?’ – effectively deploying a metaphor of visuality at the same time to amplify the two general claims of rape-myth-busting scholarship. The first is that, when people look at the issue of rape, what they ‘see’ is not a clear view of the relevant facts and evidence, but rather a montage of images composed of their own deeply ingrained prejudices, stereotypes and false beliefs reflected back to them. The second is that, if tackled in the right way, these might nevertheless be removed or dispelled in order that the truth about rape may be properly seen.Footnote ¹⁹

Beyond the obvious metaphorical association between knowing and seeing the world, a deeper and broader study of the cultural symbolism of the visual could (I suggest) usefully contribute to understanding popular attitudes, legal formulations and scholarly arguments regarding rape and sexual assault. In a now much-discussed paper, Catharine MacKinnon (Reference Mackinnon1983) uses two long footnotes to observe how popular visual metaphors for the acquisition of knowledge tend to reflect a male experience of sexuality. For example, a scholar makes ‘a penetrating observation’, knowledge is gained by ‘violating boundaries’ and the pursuit of knowledge is a process of ‘appropriation and objectification’ (p. 636).Footnote ²⁰ Thus, according to the history of culture as MacKinnon paints it (Reference Mackinnon1983, p. 645), the biblical euphemism ‘to know’ is highly appropriate, since it is expressive of the structuring of the ‘known world’ generally as subservient to male sexual subjectivity, exploration and discovery. Genesis after all reports only that ‘Adam knew Eve’, not the other way around.Footnote ²¹ Susan Sontag (Reference Sontag1977) similarly uses a gendered language of sexual possession and penetration to describe photography as ‘something predatory’ that can ‘violate’, ‘possess’ people and ‘turn [them] into objects’ (p. 14). Sontag implies what MacKinnon explicitly argues: that looking, knowing and fucking (to use MacKinnon's expression, connoting penetrative heterosexual intercourse that may or may not be consensual) are all semiotically associated, since each instance is characterised by a (male) subject who seeks to dominate the world and the objects (some of the latter being female persons) he finds in it.Footnote ²²

To return to writings more directly about sexual offending, we similarly find popular perceptions and attitudes about rape characterised in visual terms. For example, Anderson (Reference Anderson2010) portrays the ‘classic’ (that is, stranger) rape as a vision ‘conjure[d] up’ in the ‘American mind’ that necessarily involves a violent struggle and the spilling of an innocent female victim's ‘red blood’ (p. 645). As Janet Halley (Reference Halley2008) puts it (albeit in a different context): ‘our precommitments ensure that we'll “see it because we believe it”’ (p. 344). Critical analyses of the handling of sexual offences in and by the criminal justice process also often associate the processing by officials and legal actors of visual information with the prevalence of mythical thinking. For example, jurors are sometimes criticised for seeking visual signs of violence on and inside the complainant's body and clothing that will prove that the incident in question involved real and serious resistance and struggle as opposed to mere ‘rough sex’ (Anderson, Reference Anderson2010, pp. 651–652; Ellison and Munro, Reference Ellison and Munro2009, pp. 314–315; Carline and Easteal, Reference Carline and Easteal2014, pp. 184–185). Other research has also sought to demonstrate that decisions made by police to ‘no-crime’ reports of rape are often based on a stereotypical assessment of visual cues. These include CCTV evidence of friendliness before or after an incident that may be taken to constitute evidence that a complaint was probably fabricated (Burton, Reference Burton2013, p. 209). In addition, doubts about the realistic prospects of a conviction will dissuade many prosecutors from taking a case to trial if there is a lack of visible physical marks on the complainant's body (Carline and Easteal, Reference Carline and Easteal2014, pp. 179–180).

Gethin Rees (Reference Rees2012) similarly draws attention in his empirical research on the forensic medical examination of rape complainants to the significance that may be accorded at trial to bodily markings such as tattoos, body piercings and old scars. Whilst not necessarily significant in isolation, Rees worries that they may be ‘deeply damaging if combined with other similar aspects of a client's lifestyle’ because they ‘create an impression to the court that the client is of “bad character” in an attempt [by defence counsel] to undermine their credibility in the eyes of the jury’ (p. 117). Although, in jurors’ minds, such ‘signs’ may seem to indicate a path towards distinguishing rape and consensual sex, these are paths with a source not in the real world ‘out there’, but in the prejudicial attitudes of the jurors themselves. Assessing the extent to which Rees's worries have a basis in fact is difficult given the lack of an opportunity to scrutinise actual jury-room discussions, but his approach further reinforces the appropriateness of Ellison and Munro's visual metaphor to describe the general aim of rape-myth-busting scholarship.

This association of perceived bad behaviour (that may become the object of scrutiny and moral judgment) and its potentially damaging legal consequences for women who allege they have been the victim of rape or sexual assault is explored more fully by feminist legal scholars in terms of the idea that we live in a ‘just world’. As noted above, some commentators have argued that rape and sexual assault are popularly believed to be ‘misfortunes’ that can befall a woman if she fails to check an initiating man's assumption that access to her body is permitted, especially if that assumption arose because of implied encouragement from her. Others have argued that, when female rape complainants are not believed, this disbelief can be attributed to the woman in question having previously and/or subsequently failed to observe a regime of sexual self-regulation and decorum. This focus on the agency and moral decision-making of victims rather than perpetrators in turn presupposes that, on the whole, life and society are just and fair, and that people generally get what they deserve – that the good are rewarded and the bad punished (Chapleau and Oswald, Reference Chapleau and Oswald2013; Franiuk et al., Reference Franiuk, Seefelt and Vandello2008). This ‘just-world view’ may be at the foundation of the belief that it is only ‘bad girls’ (that is, women who fail to conform to traditional feminine expectations of good behaviour) who get raped by bringing the violation on themselves (Abrams et al., Reference Abrams2003). These views and beliefs have been elsewhere identified in legal judgments on sexual offending (Ellison, Reference Ellison, Hunter, McGlynn and Rackley2010; Wallerstein, Reference Wallerstein2009) but the senior courts are rarely called upon to tackle them quite as directly as in the Evans case. It is worth considering here therefore how the implicit moralism of ‘just-world’ thinking is discernible, not only in the consensual sex testimony for the defence, but also in the Court of Appeal judgment itself.

Hallet L.J.’s speech indicates in the first place that the Court is well aware of the potentially damaging implications for the complainant of allowing the defendant to put to a jury the evidence of her consensual sex with other men. She cites the purpose of the relevant legislative provision as being to counter the ‘twin myths’ that ‘unchaste women are more likely to consent to intercourse and in any case, are less worthy of belief’.Footnote ²³ However, if, with these words, Hallet L.J. acknowledges the cultural and moral context within which the question of admitting consensual sex evidence sits, it presently becomes clear that this is nevertheless insufficient to sway the Court's decision. On the subject of just how similar Evans's testimony and the consensual sex evidence really were, prosecution counsel attempted to argue that it ‘is far from unusual’ for a ‘sexually active woman [to] enjoy sexual activity with other men’ and that ‘the words “fuck me harder” [are] common-place words used to indicate enthusiastic consent’.Footnote ²⁴ If that is correct, then it arguably follows that any similarity between such aspects of X's sexual life and those of the alleged rape is indeed explainable as just coincidence and therefore that the evidence is inadmissible.Footnote ²⁵ For the Court, however, that argument is ‘flaw[ed]’ in a legal sense, because it wrongly focuses on whether the behaviour in question is ‘unusual’ and furthermore fails to acknowledge that the courts had already accepted that section 41(3) ‘does not necessitate that the similarity has to be in some rare or bizarre conduct’.Footnote ²⁶ That approach may well be correct as a matter of law narrowly construed, but it is difficult to see how it takes due account of the risk of exposing X to prejudicial attitudes. The rather bald statement finally that the Court is ‘satisfied that, on the facts, [the evidence] is sufficiently similar to come within the terms of s. 41(3)(c)(i)’Footnote ²⁷ seems further to suggest a formal, decontextualised interpretation of the law.

In previous published work, I have suggested that rape-myth-accepting (RMA) and victim-blaming attitudes may not be quite as wide or deep as sometimes alleged in feminist RMA scholarship (Gurnham Reference Gurnham2016a; Reference Gurnham2016b). In this particular case, however, one reason to fear that allowing the consensual sex evidence to be admitted at trial would be particularly damaging to the complainant's credibility is that the evidence also serves to demonstrate her violation of traditional feminine norms. Presumably paraphrasing the defence account of the fresh evidence that they intended to put in front of the retrial jury, Hallet L.J.’s judgment makes it clear that, far from being a sexual ‘gatekeeper’, X was in fact very much the initiator – the role traditionally reserved for men. Regarding the testimony of Mr Ripley, we learn from the judgment that ‘On at least three of those occasions when both had consumed a lot of alcohol, X propositioned him by saying if he took her home, she would give him a “good time”.’Footnote ²⁸ Then, describing Mr Owens's testimony, we read that X not only initiated sex and directed it, but that her demands were issued repeatedly as orders: ‘X was shouting “fuck me …” … she continued to shout, “fuck me…” … X continued to shout the same words.’Footnote ²⁹

It will likely never be known precisely how much significance the retrial jury attached to the freedom allowed to defence counsel to dissect X's sexual behaviour, except insofar as they did in fact acquit Evans of the crime for which he had previously been convicted. What is clear, however, is that, in the Court of Appeal, defence counsel was successful in their argument that otherwise unremarkable aspects of X's private life ought not be concealed from view, but made the object of scrutiny and judgment.Footnote ³⁰ Those who would endorse the ‘just-world’ view (described above) might say that, by her past and subsequent behaviour, X showed herself to be no innocent and that doing justice to the defendant requires a jury to know as much. Hallett L.J.’s insistence that, in inviting a second trial on the basis of the fresh evidence, ‘we have made no criticism of X’Footnote ³¹ is surely only true in the narrowest and most obtusely literal fashion. Although it is indeed true that Hallett L.J. never actually says that X is to be regarded as blameworthy on account of her drunkenness, promiscuity and sexual appetite, the judge's words here feel like a rather disingenuous denial of the invitation to pass moral judgment that is implicit in defence counsel's submission. The following section develops the analysis produced so far – specifically regarding the association observed here between visuality and such moral judgment – by moving into slightly deeper theoretical waters.

4.1 Rereading Medusa: the object(ified) ‘looks back’

As discussed, the image of the beheaded Medusa offers the theory of the male gaze its own ‘myth of origin’. But there is certainly more to the Medusa story than that image and that might furthermore give a platform for developing the sorts of ‘promising engagements’ with law that I refer to above. Medusa resists being reduced symbolic confirmation of castration anxiety and gender inequality thanks to her penetrating, petrifying gaze and, in the most forceful terms, affirms Lacan's (Reference Lacan and Miller1994) argument that objects ‘look back’. For Lacan, the object of the gaze is never purely an object, since its object status cannot be entirely fixed or finalised (Lacan, Reference Lacan and Miller1994, p. 109; Mitchell, Reference Mitchell2002, pp. 175–176). A key role for interdisciplinary legal scholarship, then, is to harness this idea and thereby somehow to get the criminal justice gaze to notice and acknowledge its objects ‘looking back’.

Medusa's back story is that she had formerly been a beautiful maiden, made to take on her terrifying visage by the virgin warrior goddess Athena after learning that Poseidon had raped Medusa in the goddess's temple (Ovid, Reference Raeburn2004).Footnote ³⁹ Thereafter, the sight of her face would turn to stone the bodies of men and beasts who looked at her. Some commentators have thus read the story as a protest against the objectifying male gaze in general, and as a feminist fantasy of furious and devastating rape revenge (Silverman, Reference Silverman2016). This reading seems particularly plausible given that Medusa's gaze is nowhere recorded as being directed against other women. This allows us to think of Medusa as a fantasy also of the male gaze reversed (albeit temporarily): the objectifying effects of the gaze parodied in her awesome powers of petrification, and its ubiquity likewise reflected in the survival of those powers beyond Medusa's own death.Footnote ⁴⁰ At the same time, however, to focus on Medusa's gaze thus is not to lose touch entirely with more traditional gender concerns. For example, there is, first, no evidence that Medusa had any power to direct her petrifying power strategically so it is difficult to think of her as ‘empowered’ by it particularly. Second, after her death, the power of her face to petrify was harnessed and exploited by the heroic Perseus for his own ends. Furthermore, her death brings us back to Ellison and Munro's (Reference Ellison and Munro2009) visual metaphor at the centre of this discussion: Perseus knew that, so long as he looked at Medusa only in the reflection of his polished shield, her monstrous feminine gaze could not harm him (Ovid, Reference Raeburn2004). If, by their metaphor of ‘turning mirrors into windows’, Ellison and Munro intended to suggest that rape myths are a kind of ‘shield’ that protects masculine dominance, then the story of how Perseus killed Medusa seems perfectly to literalise that. Reading Ellison and Munro through the Medusa metaphor, then, we my say that the aim of feminist RMA scholarship is to, so to speak, render Perseus's shield transparent somehow and thereby to force him to reckon with the rape victim's demand for justice.Footnote ⁴¹

Reading Medusa with a focus on her eyes rather than her wound therefore does not turn Medusa straightforwardly into a feminist icon, but it does complicate and undermine the view that her image affirms only phallocentricism and phallic dominance. Suggesting instead resistance to such a reduction and to objectification (Bowers, Reference Bowers1990), the story can be seen to be a more promising basis for imaginative critical engagements with law and the criminal justice gaze. In this respect, the myth calls to mind certain other ‘medusas’ of criminal justice: Myra Hindley, in her infamously defiant police mug-shot image (Young, Reference Young2005; Gurnham, Reference Gurnham2009, pp. 124–126); the sadistic murderer Joanna Dennehy, who resisted any suggestion of mental illness that might have helped her defence (Dymock, Reference Dymock2015, pp. 113–118); Sara Thornton, who seemed to announce her intentions by scrawling ‘Bastard Thornton I hate you’ on the bathroom mirror in lipstick before killing her husband (Young, Reference Young1996, p. 31). These rather crude images or vignettes do not allow us to say anything about them as ‘real’ people or the extent to which they consciously or authentically defied prevailing conventions regarding female accused before the criminal justice gaze.Footnote ⁴² As images or vignettes, however, they remind us that the issue of law's power to objectify and the struggle to resist it is one that is necessarily played out at the level of representation. As Brown (Reference Brown2014) puts it: ‘Regardless of its uncertain outcomes, including voyeuristic spectacle, egregious appropriations, and silent apathy, the act of representation remains a vital form of social engagement’ (p. 182). In the final part of this paper, I make some suggestions as to how interdisciplinary legal scholarship might find space for such a questioning in the context of criminal justice approaches to sexual offending.

4.2 Mirrors and windows again: reviewing X

In Section 2.1 above, I referred to the Court's reference to the defendant's friends peering through the hotel window from outside to get a glimpse of the activity going on inside, with the room light on and darkness outside (thus facilitating a good view into the room from outside but, for those inside the room, effectively turning the windows into mirrors). It is a detail that nicely emphasises the importance of visual perspective, and crucially the apparent difficulty of seeing X otherwise than as a reflection of male desire. That reference to the physical arrangement of the room, the lighting and the people in and outside of it also reflect the figurative limitation apparently accepted by the Court when they found in favour of exposing X's sexuality to forensic examination. Is it any wonder that the juridical imagination should be so limited if (as Mulvey insisted) we do indeed inhabit a culture in which fantasies of female objectification are central to ‘order and meaning’?

Angela Carter (Reference Carter and Frostrup2016) exposes precisely this limitation in her twentieth-century short story, The Bloody Chamber. Like the Evans Court, Carter depicts female sexuality and sexual difference in terms entirely consistent with the imperatives of male fantasy outlined in Section 3 with respect to the displacement of castration anxiety. The young bride-narrator of Carter's story constantly perceives herself to be the object of her fabulously wealthy husband's ‘carnal avarice’, his gaze multiplied in his twelve bedroom mirrors (in which she watches herself figuratively ‘impaled’ by him on his huge bed) and ‘strangely magnified by the monocle lodged in his left eye’ (2016, pp. 53, 56, 61). His macabre and murderous intentions are made clear by his wedding gift to her of a ‘choker of rubies, two inches wide, like an extraordinarily precious slit throat’ and his control of her exerted by his uncanny surveillance while he is away from the marital home on business (Carter, Reference Carter and Frostrup2016, p. 60). However, unlike the Evans Court, Carter is also able to pull away the symbolic scaffolding of the male gaze and feminine castration in the final climax of the story. For, in that final scene, we see the bride-narrator using the vantage point of a high window in the castle to extend her field of vision to the distant horizon from which rescue comes. The rescuer is her mother, who, galloping into the fray just in time, recreates the image of the Medusa: ‘crazy, magnificent … the witness of a furious justice.’ Her sudden appearance leaves the husband and would-be murderer standing ‘stock-still’ as if petrified with his phallic weapon (his grandfather's ceremonial sword, no less) ‘raised over his head’ before he is killed by the mother's ‘single, irreproachable bullet’ (Carter, Reference Carter and Frostrup2016, pp. 78–79).

The point I want to bring out here is not that the mother's appearance in the guise of Medusa transforms femininity from object of male fantasy into subject of agency and power, only that it undercuts the claim of the male gaze to be the sole and dominant point of view. Abstracting from this somewhat, it is not that the roles of oppressor and oppressed are reversed then; indeed, I have not sought to claim that such a reversal is actually possible. The argument is rather that, in specific contexts in which subjects and objects are constituted in discourse (illustrated here by the Evans judgment), there may be opportunities for acts of imaginative resistance to the oppressiveness of asymmetrical visuality. In the case of legal discourse, if the judicial imagination is unable even to countenance an interruption of the male gaze, this only lends further credence to Ellison and Munro's expressive metaphor of a mirror that blocks new perspectives, insights and visualisations.

The point of departure here from Ellison and Munro is that the task of ‘turning mirrors into windows’ is not (as they argued) important primarily in order to force the male subject to see through the glass of his existing prejudices, but rather to allow alternative perspectives by which the object of the gaze can be glimpsed ‘looking back’. To make visible such an alternative perspective – for example, for the Evans Court to be made to recognise some other view of X than as the seen object of male fantasy and voyeurism – is to begin the initial necessary steps to counter the sense that the criminal justice gaze must inevitably be identifiable with male desire and sexual subjectivity. As things stand, however, the imaginative limitations under which the Evans Court operated means that the eyes of the men outside the window continue to reflect the gaze of the law, and determine that what is seen is either X as a sexual object (while the curtains are open) or (with the curtains closed) nothing at all.

Before concluding finally, it may be wise to acknowledge a potential objection to the approach advocated here, namely that invoking the literary imagination in the way described above represents a potentially risky departure from the safety and rigour of doctrinal and empirical legal studies and legal theory. Some may ask whether it is only because Medusa is a myth and The Bloody Chamber a work of fiction that allows such an interpretive license. If such a license is applied to legal reasoning and judgments, do we not risk becoming insensitive to the facts, to the nuances of legal method or to the realities of gender violence and victimisation? At the broadest level, this is an objection to interdisciplinary approaches to legal studies generally. Regarding the argument made in this paper specifically, however, I would make two brief responses. First, I have not sought to justify an abandonment of the ‘real world’ of empirical facts about sexual violence or the seriousness of doctrinal legal method, but merely the embrace of a broader perspective that might helpfully contribute to an ongoing debate about ‘visuality’ in legal studies and criminology. Second, it must be in the interests of the pursuit of gender justice to address the conceptual framework within which sexual violence is constructed, and to seek ways imaginatively to unmoor criminal justice responses from voyeurism and objectification.