Introduction

Bringing a long and curious silence to an end, this article provides a feminist reading of Benjamin Mendelsohn’s 1940 essay ‘Le Viol en Criminology et l’Importance de la Femme-Magistrat’ (‘Rape in Criminology and the Importance of the Female Judge’, hereafter ‘Rape in Criminology’). Mendelsohn is a founding “father of victimology” (O’Connell 2008, 98) and is both lauded for innovatively extending the gaze of criminology beyond the offender to the victim, and criticised for sha** victimology as the scientific study of victim culpability, giving the discipline a problematic “victim-blaming orientation” (Karmen 2016, 12). For decades, scholars at the intersection of feminism and victimology have identified Mendelsohn’s theory of victim culpability as a form of distant but “dangerous” (Russell 1978, 382) academic legitimation for victim-blaming rape myths (Weis and Weis 1973; Weis and Borges 1973; Elias 1986; Miers 1989; Eigenberg and Garland 2008; Spencer 2011; Stanko 2013; Taylor 2020; Clay-Warner and Edgemon 2020). Curiously, however, at no stage has Mendelsohn’s substantial essay about rape victims been consulted in this context of continuing scholarly concern about the impact of his ideas. Published prior to the recognised advent of victimology in 1947, ‘Rape in Criminology’ (1940) has not been analysed in the Anglophone literature on Mendelsohn, and is not available in unabridged English translation. But it focuses specifically on rape victims and the law, and is in fact Mendelsohn’s first publication about victims. Working from a new unabridged English translation of the original 1940 publication in the criminal justice journal La Giustizia Penale, this article ends the silence and explores Mendelsohn’s essay.Footnote 1 I argue ‘Rape in Criminology’ unsettles the story victimologists tell about the origins of victimology, and furthers feminist knowledge about the persistence of rape myths in the legal context.

The advent of victimology is standardly narrated as an innovative development in criminology that brought crime victims to scientific attention in a systematic way for the first time. No longer merely a “point of impact of crime into society” (Drapkin and Viano 1973, xi), Mendelsohn’s victimology reimagined the crime victim as an “activating sufferer” (Schafer 1968, 18) whose susceptibility to victimisation means they share culpability for the crime. The standard narrative acknowledges that Mendelsohn’s victimology grew out of his practice as a criminal defence lawyer and attributes his focus on victim culpability to his legal background (Hoffman 1992), but never details the original form ‘victimology’ assumed in his legal practice. ‘Rape in Criminology’ throws a window onto this original form, revealing what has been missing from the standard narrative, namely Mendelsohn’s original legal victimology and the central role played by rape complainants, rape law and rape myths in its advent. Where the standard narrative has Mendelsohn shifting academic perceptions of the victim and doing so in a way that would eventually support rape myths, the story of Mendelsohn’s legal victimology shows he brought victimology into being specifically in order to secure a future for rape myths in uncertain modern times. Mendelsohn’s legal victimology arose in the context of his specialisation in rape cases. A uniquely twentieth-century method of criminal defence that reconstitutes rape law’s historical rape myths as modern ‘victim science’, Mendelsohn devised his legal victimology to answer new threats to defence prospects posed by the growing legitimacy of forensic science as modern law’s “technoscientific witness” (Quinlan 2017) and the arrival of new forms of complainant-corroborating forensic evidence of rape. With developments in forensic science threatening to bolster the credibility of rape complainants, Mendelsohn’s legal victimology sought to reinstate rape law’s established view of rape complainants as lacking credibility. Shaped as a rival “bio-psycho-social” witness, Mendelsohn’s victimological method of criminal defence mobilises biological, psychoanalytic and sociological knowledge to forensically examine the body, mind and social environment of the rape complainant, contriving new scientific grounds for invalidating complainant testimony as corrupt data.

‘Rape in Criminology’ not only unsettles the established origin story of victimology, it also provides new insights in the context of feminist research about rape myths and, as Mawson (1999, 44) puts it, rape law’s “application of lore rather than law”. Working from Martha Burt’s original account of rape myths and the “cultural orientation toward sexual assault” they sponsor (Burt 1980, 217), Lonsway and Fitzgerald (1994, 134) define rape myths as “attitudes and beliefs that are generally false but are widely and persistently held, and that serve to deny and justify male sexual aggression against women”. Situating law and the social order as co-constitutive, feminists have framed rape law and its longstanding “deep distrust of the female accuser” (Berger 1977, 10) as both reflecting and perpetuating rape myths that are present across society. Rape myths favour the defence perspective (Smith 2018) and contribute to the “justice gap” in rape law (Temkin and Krahe 2008) whereby rape is highly prevalent but seldom prosecuted or convicted, thus effectively decriminalised (McDonald 2020). Despite the 1980s global wave of feminist-led rape law reform designed to dispel distrust of the complainant, rape myths and the justice gap remain, and the failure of reform suggested rape myths are a problem legal change alone cannot transform (Conahan and Russell 2014). This sparked the ‘turn to attitude’ in feminist rape myth research (Russell 2017), which foregrounds “extra-legal factors, particularly attitudes towards rape” (Temkin and Krahe 2008, 118) to explain the justice gap’s persistence. A substantial feminist literature uses trial observation and transcript analysis to document defence lawyers’ “persistent use of rape myths to undermine victims’ credibility”, especially during cross examination (St. George et al. 2021, 15). Since the ‘turn to attitude’ in feminist rape myth research, defence lawyers appear in the literature alongside jurors and judges as legal personnel whose rape myth acceptance reflects their lack of individual ‘immunity’ to the wider cultural setting, where rape myths are normalised.

While it is not my task here to debate the ‘turn to attitude’, my reading of ‘Rape in Criminology’ finds that Mendelsohn not only accepted and mobilised rape myths, but elaborately remade them so they could survive change. As such, Mendelsohn is a powerful example of another theme in feminist rape myth research: rather than endure unchanged over time, rape myths are mercurial and endure partly because they change with the times, becoming “reconfigured” (Conaghan and Russell 2014, 32), “updated and modernised” (Mawson 1999, 44) and assuming “new and mystifying forms” (Naffine 1994, 33) amid changed conditions (Calavita 2001) and in confrontation with dissenting perspectives (Smart 2000). Rape myths persistently sponsor cultures of disbelief that discourage, disqualify and silence rape complaints, but as is illustrated in Carol Smart’s (2000) research on perceptions of child sexual abuse in the twentieth century, they do so in a context of persistent contestation and in ways that need to manage organised counter-efforts to construct rape victims as believable and rape as harmful. Pressing against the view that the issue of child sexual abuse was monolithically silenced prior to the 1980s, Smart’s (2000, 69) research on this period found not silence but a “moment of immense verbosity” in which institutionalised cultures of disbelief vie with the counter-discourses of campaigners and feminists who “fought hard to extend the definition of adult–child sexual contact as harmful” (Smart 2000). The example of Mendelsohn supports Smart’s characterisation of twentieth century discourses of sexual harm as sites of dissent, resistance and verbosity rather than silence, but where her research lights up the dissenting labours of campaigners, my analysis of ‘Rape in Criminology’ gives insight into Mendelsohn’s intra-legal labours toward stabilising law’s culture of disbelief within a rapidly modernising legal system.

In what follows I first situate ‘Rape in Criminology’ in the context of Mendelsohn’s early work and identify how and by whom this text to came be neglected. I then situate Mendelsohn in relation to the history of rape law, particularly the period following the eighteenth century revolutions when rape myths took a scholarly turn, seeding a terrain of law-adjacent expert medical and psychiatric knowledge about rape that, in the early decades of the twentieth century, featured the advent of potentially complainant-corroborating forms of forensic science alongside the rise of complainant-impeaching Freudian psychoanalysis. Finally, I offer my reading of ‘Rape in Criminology’, bringing to light Mendelsohn’s ‘bio-psycho-social’ method of criminal defence, his rape law reform advocacy, and their configurations of gender, science and rape myth.

The Significance of ‘Rape in Criminology’

‘Rape in Criminology’ is the second in a pair of published essays Mendelsohn wrote in French before the second world war, while a practicing barrister at the Court of Criminal Justice in Bucharest, Romania (Mendelsohn 1963). The essays are addressed to the European legal community and initially formed part of a wider (ultimately unfinished) project to write a guidebook for lawyers. Rather than simply school lawyers in the established ways of criminal defence, the pair of essays schooled lawyers in the “scientific method” of criminal defence Mendelsohn had developed in his legal practice, and its “bio-psycho-social point of view” (Mendelsohn 1963, 242). While Mendelsohn’s first essay (Mendelsohn 1937) is relatively brief and describes how his method approaches the defendant, ‘Rape in Criminology’ (1940) is a longer, more substantive work that describes how his method approaches complainants in rape cases, while also staging an extended discussion of forensic evidence of rape, and manifesto-like advocacy for far-reaching reforms to protect defendant rights during rape investigations and trials. Together the essays advance an ambitious project to reconfigure the conceptual terrain and practical conduct of criminal defence. Because the essays have not been examined, the literature so far lacks an account of Mendelsohn’s method of criminal defence and its deriving context. The focus has gone to his ‘fathering’ of academic victimology in his third publication, rather than his development of legal victimology – his bio-psycho-social scientific method of criminal defence – in his first two publications.

Neglected but not forgotten, ‘Rape in Criminology’ does gain mention in accounts of Mendelsohn’s role in the advent of victimology, including his own (Mendelsohn 1963). These mention one or both of the early essays because they establish Mendelsohn was on the way to founding victimology ahead of other noted founders such as Von Hentig (1940). The early essays are otherwise bracketed off as minor compared to Mendelsohn’s post-war essay ‘The Victimology’ (1956), which he initially gave as an oral presentation to the Romanian Society of Psychiatry at a 1947 conference in Bucharest, in what is generally seen as the founding moment of victimology. ‘The Victimology’ addresses a wider audience than the legal community and is regarded as Mendelsohn’s “seminal work” (Wemmers 2017, 19) because it argues for the establishment of victimology as a new branch of positivist science that is both “parallel” to criminology and the “reverse” of it (Mendelsohn 1956, 35), and presents Mendelsohn’s famous victim typology, which describes victim types according their degree of ‘culpability’ for the crime. ‘Rape in Criminology’ seems insignificant compared to the ‘seminal’ and historic ‘The Victimology’ because between them Mendelsohn pivoted from the specific concerns of legal practice to the wider gesture of launching a new science (Hoffman 1992). As my reading will show, however, there is significant continuity between these works, with ‘Rape in Criminology’ presenting a heretofore unanalysed typology of culpable rape complainants which resurfaces in ‘The Victimology’. ‘Rape in Criminology’ is therefore more significant to the founding of victimology than its minor status suggests, and rape complainants have a largely unacknowledged historical place as the pilot subjects of Mendelsohn’s victim science.

With the arrival of critical perspectives in victimology and the problematisation of secondary victimisation aided by new concepts such as ‘victim blame’ (Ryan 1969), ‘rape myth’ (Burt 1980) and ‘ideal victim’ (Christie 1986), Mendelsohn gained a negative reputation as “the man who blamed the victims” (Hoffman 1992, 89) and critics expressed concern about the impact of his academic victimology upon victims, particularly victims of rape. This provided a context for investigating ‘Rape in Criminology’ and the rape complainant-focused legal victimology that came before Mendelsohn’s pivot to academic victimology. Ironically, however, the critique of Mendelsohn that took shape pointed away from such investigation. Mendelsohn’s critics and supporters alike traffic in a depiction of victim-blaming as a lawyer’s unchanging “natural” bent (Hoffman 1992, 89). The main criticism of Mendelsohn has been that, when he launched victimology as a science, he took typical and generic lawyerly victim-blaming into the domain of science, where it becomes an inappropriate form of partisan bias that breaches objectivity, producing logically and morally flawed quasi-science. This is an important critique to be sure, but it affirms victim blaming as only to be expected in the adversarial legal setting, foreclosing investigation of Mendelsohn’s project to alter victim blaming in the legal setting by resha** it around a ‘bio-psycho-social’ view. My reading reveals that Mendelsohn’s legal victimology was a response to what he perceived as a crisis situation in the legal handling of rape. Failure to investigate his legal victimology has papered over this original motivating context and its fraught uncertainties, with the advent of victimology depicted instead as an academic development motivated by the rise of positivist social science and the rational goal of extending the criminological gaze beyond the offender to the victim. Accordingly, critics concerned about Mendelsohn’s impact upon rape victims have framed this impact diminutively, as indirect academic influence – a leakage of victimology’s “problematic academic theory and language” (Taylor 2020, 38) out of the academy and into society and culture, where it “may unwittingly sustain popular myths about who is ‘to blame’ for a rape” (Miers 1989, 14). Looking only at the academic social science victimology became in the 1940s, this line of critique proceeds unaware that Mendelsohn’s victimology directly targeted rape victims and their justice prospects from the start.

Another factor sponsoring neglect of ‘Rape in Criminology’ has been Mendelsohn’s own English translation of selected passages of the essay, presented in a later article establishing his role in fathering victimology (Mendelsohn 1963). Mendelsohn’s much-abridged translation gives the impression of access to the wider original work, deterring exploration of its full contents. But the abridged translation omits the chapters giving insight into Mendelsohn’s method of criminal defence and rape law reform advocacy, showing only the ‘bio’ part of the wider bio-psycho-social perspective on rape developed across the essay. This has had consequences particularly for feminist readings of Mendelsohn. The abridged translation reveals enough to identify Mendelsohn as subscribing to the “rape is impossible” rape myth (Morris 1987, 167), but not enough to identify the broader modernisation of rape myths taking place in ‘Rape in Criminology’, which my reading brings to light. Similarly, the prominent feminist criticism that Mendelsohn’s victimology reiterates a wider cultural “conflation of woman and victim” and view of “males as the aggressors” (Spencer 2011, 46) is complicated when we examine the unabridged contents of ‘Rape in Criminology’, where Mendelsohn appears to reverse this view, refuting the idea that women and girls are naturally vulnerable to rape, and depicting men not only as physically vulnerable to women’s and girl’s rape-resistant bodies, but also socially vulnerable to women’s and girl’s ability to wield rape accusations as a form of social power. Instead of being organised around “the idea that women are by nature ‘victims’” (Stanko 2013, 14, original emphasis), Mendelsohn’s bio-psycho-social view centrally asserts men’s victimhood, embodied in the tragic figure of the “innocent defendant” (Mendelsohn 1940, 47). Rape complainants are the pilot subjects of Mendelsohn’s victim science, but accused men are the ‘genuine victims’ whose justice prospects his science hoped to serve. Despite these problems, feminist critiques of Mendelsohn rightly foreground the politics of gender and my reading follows this approach, bringing out the theme of feminine resistance and masculine vulnerability in ‘Rape in Criminology’.

While ‘Rape in Criminology’ is neglected in victimology’s origin stories and critical perspectives, not all victimologists enjoined the critique of Mendelsohn’s victim-blaming, and the one place where ‘Rape in Criminology’ has not been neglected is among those who supported and carried on his science of rape complainant culpability, such as Mendelsohn’s friend and colleague Menachim Amir (Mass 1991). Amir is often credited with being the first to bring rape myths and the theory of victim culpability together in his 1971 book Patterns in Forcible Rape. But the contents of ‘Rape in Criminology’ clarify the great extent to which Amir’s (1971, 3) book instead reprises, expands and updates the themes and goals Mendelsohn had articulated thirty years earlier, develo** an updated “situational” theory of “victim precipitation” that redraws rather than forges the original link between victimology and rape.Footnote 2 This is significant given that the situational approach developed by Amir and others went on to dominate neoliberal-era criminal justice policy (O’Malley 1992; Walklate 1994). Focusing on crime “before it occurs”, the situational approach makes prevention “the responsibility of the victim” (O’Malley 1992, 262). Its victim-blaming responsibilisation of the would-be rape victim and resulting cultures of disbelief have been at the centre of contestation in twenty-first century feminist anti-rape politicisations, from SlutWalk to #Metoo (Stringer 2014, 2021). ‘Rape in Criminology’ has been neglected in the context of victimology’s origin stories and critical perspectives, but has meanwhile been generative in the development of the situational approach, where Mendelsohn’s (1940, 31) goal in ‘Rape in Criminology’ – to alter the way “those in charge of administering justice” perceive rape survivors – appears to be brought to disturbing fruition. Contradictorily, then, ‘Rape in Criminology’ is a neglected text and, at the same time, successfully influential. Mendelsohn’s commentators often move to diffuse his reputation for victim-blaming by pointing out the humanitarian interest in “hel** victims of every kind” (Hoffman 1992, 89) expressed in his later work, however the later work does not revise his early perspective on rape, instead pulling through his original problematisation of “psychical, physical and social qualities” that contrive to produce “persons victimized because of their own behaviour” (Mendelsohn 1982, 62).

In sum, ‘Rape in Criminology’ is a text of intra-legal pedagogy and advocacy pertaining to the legal handling of rape. Though generative in the later formulation of ‘situational’ criminal justice, it is overshadowed by ‘The Victimology’ (Mendelsohn 1956) in victimology’s origin stories and critical perspectives, where a range of factors have led away from curiosity about its unabridged contents. Although Mendelsohn’s critics take his victim-blaming to task and link him to the perpetuation of problematic rape myths, neglect of ‘Rape in Criminology’ has ensured their continued lack of knowledge about Mendelsohn’s legal victimology and its original focus on rape complainants. As I address this lack by bringing to light his method of criminal defence and rape law reform advocacy, Mendelsohn’s dominant profile as the ‘father’ of something new – a profile upheld by his critics – gives way to a different view of him as a modern maintainer of something very old, namely, rape law’s longstanding “suspicion of the victim” (Vigarello 2001, 93). Mendelsohn’s victimology is primarily depicted as an innovation in the context of criminology, but the contents of ‘Rape in Criminology’ indicate his victimology also holds significance in the longer-term historical context of rape law’s reiterative framing of the rape victim as a guilt-sharing suspect in the crime. The following section lays the ground for my subsequent reading of ‘Rape in Criminology’ by situating Mendelsohn in this context.

Situating ‘Rape in Criminology’

In ‘Rape in Criminology’, Mendelsohn (1940) presents his bio-psycho-social method of criminal defence and his proposal for rape law reform, couching these as needed responses to a crisis in the legal handling of rape. Simply put, the crisis is that trusted new forms of forensic evidence are making it more difficult for legal defence to succeed. In Mendelsohn’s (1940, 45) telling, all rape convictions in this context are “miscarriages of justice”, and such miscarriages have become the norm, with rape law empowering a growing tide of false victims to “bring tragedy” (46) to innocent men by accusing them of rape. To prompt “an evolution or even revolution” (50) in the legal handling of rape, Mendelsohn’s essay arms lawyers with his bio-psycho-social method for detecting “pseudo” (29) and “fake” (36) rape victims, while also proposing dramatic law reforms aimed at “better justice” (29), by which he means increased exposure of rape accusations as false, restoring prospects for successful defence.

As this sketch of Mendelsohn’s position in ‘Rape in Criminology’ indicates, understanding the essay requires situating it the context of rape law and its special preoccupation with the rape complainant. In this section, I situate ‘Rape in Criminology’ in relation to key developments in the long and contradictory wake of liberal law’s revolutionary “enfranchisement” (Vigarello 2001, 101) of the rape victim. Confirming that in Mendelsohn’s time forensic evidence was reaching new heights of potentially complainant-corroborating sophistication, my discussion identifies how ‘Rape in Criminology’ was shaped by the scholarly turn in rape myth discourse, the advent of Freudian psychoanalysis, and the rise of zealous advocacy as the dominant style of legal defence. Situating ‘Rape in Criminology’ supports a reading of Mendelsohn’s position as both typical and unique: typical because it reiterates rape law’s longstanding attitude of suspicion towards the rape complainant, and unique because it modernises this attitude of suspicion in a quintessentially twentieth-century way, producing a new ‘victimological’ iteration. Rather than being a story about the guaranteed place of rape myths in rape law, the story of ‘Rape in Criminology’ in context provides a window onto the precarity of rape myths as much as their abiding legal power, underlining that rape myths have had to change in order to maintain purchase in the legal process.

From Co-defendant to Witness

Historians have shown that suspicion of the victim is an enduring feature of rape law, a golden thread that runs from the earliest codifications through to rape law today, persistent despite radical shifts in legal conceptualisations of rape across time, from the early patriarchal and religious codifications of rape as a property crime and a moral offence, through to the later liberal revolutionary redefinition of rape as a crime against the person (Viano 1974; Berger 1977; Gold and Wyatt 1978; Warner 1980; Pateman 1980; Naffine 1994; Vigarello 2001; Bourke 2007). In the early codifications rape is a property crime of trespass and the law regarded the woman’s ‘legitimate possessor’ (her father or husband) as the victim because it was his property (her body) that was trespassed. A less commonly highlighted aspect of the earliest codifications is their formal constitution of the woman as a co-defendant. As a potential accomplice to the trespass, she was “a co-defendant charged with the crime of consent” and also punished if convicted (Gold and Wyatt 1978, 695). As Vigarello (2001, 101) observes, patriarchal and religious framings of rape victims as guilt-sharing co-defendants “theoretically should not have survived” the revolutionary upheavals of the eighteenth century, which delivered new codifications that “enfranchised” victims by recognising rape as an injury to a private self. By definitively shifting the status of the rape victim from co-defendant to complainant witness, the revolutionary codifications “promoted the victim to subject, concentrated the damage on their private self and not on their guardians, and made rape more of an injury and less of a theft” (Vigarello 2001, 87). Vigarello shows legal suspicion of the rape victim did survive these upheavals, however, and did so in changed form.

The Scholarly Turn

The new forms rape myths assumed in the wake of rape victims’ revolutionary enfranchisement are particularly important for contextualising Mendelsohn’s ‘Rape in Criminology’. Vigarello (2001, 88) documents that rape law’s historical suspicion of the victim survived the revolutionary upheavals by taking a scholarly turn and shifting from a religious to an intellectual register, creating what he calls an “unbridgeable gap between text and reality”, or a contradiction whereby rape victims were theoretically enfranchised in written law but routinely disbelieved and blamed in legal practice. Written law had replaced the religious framing of rape as a sin and the victim as “enveloped in sin” with the revolutionary liberal “refusal to implicate [the victim] in the moral act and its degradation” (Vigarello 2001, 93). But instead of falling away, legal suspicion of the victim “only assumed more indirect forms”, becoming “less immediately visible and less blunt”, and “now articulated in a more calculated and more scholarly way, apparently far removed from any disparagement of the victim” (Vigarello 2001, 93). Organised around the “constantly reiterated” myth that rape is impossible if commissioned by one man on his own, the scholarly turn seeded a substantial domain of law-facing medical science characterised by “general consensus” that most rape accusations are fabricated (Mills 1982, 33).

Written in French and visibly saluting the French Revolution by incorporating heading quotes from key figures such as Voltaire and Victor Hugo, ‘Rape in Criminology’ clearly aligns with the revolutionary scholarly turn, and in the essay Mendelsohn imparts his ‘scientific’ perspective on rape in dialogue with a wide range of supporting medico-legal sources focused on law’s ability to detect “fabricated” (1940, 47) rape accusations. Importantly, however, in the 1930s, despite its longstanding alignment with the defence perspective, law-facing medical science was also serving the prosecutorial perspective in new ways (Mills 1982; Robertson 1998; Ruberg 2013; Henry and Jurek 2020), through advances in the science of body fluid and tissue identification. The advent of increasingly sophisticated forms of forensic testing linking secretions to blood type, and sexual contact with disease transmission, enabled “forensic physicians to isolate evidence that matched up alleged assailants with their victims”, furnishing rape complainants with respectable new sources of corroboration (Mills 1982, 44). Forensics was threatening to close the ‘unbridgeable gap between text and reality’, and this is reflected in ‘Rape in Criminology’ where Mendelsohn is centrally preoccupied with these new forms of forensic evidence. As my reading will show, Mendelsohn’s method of criminal defence promotes literacy in forensic science and responds to its new powers by creating a rival forensic science: his ‘bio-psycho-social’ science of the rape complainant. Essential to Mendelsohn’s rival forensics was the advent and growing legitimacy of Freudian psychoanalysis.

Freud’s Turn

Further to the revolutionary scholarly turn and the later arrival of sophisticated new forms of potentially complainant-corroborating forensic evidence, Freud’s is the other ‘turn’ of great significance for contextualising ‘Rape in Criminology’. As Herman (2015, 13) describes, in 1896 Freud’s published finding in ‘The Aetiology of Hysteria’ that adult hysteria is attributable to “premature sexual experiences” in youth was the culmination of extensive empathetic listening and collaborative memory work with women patients unearthing memories of sexual assault, abuse and incest. Hysterical symptoms were common and by linking them with real experiences of sexual trauma Freud’s publication necessarily implied sexual assault was endemic across society. As Herman (2015, 18) observes, Freud’s “discovery of childhood sexual exploitation at the roots of hysteria crossed the outer limits of social credibility and brought him to a position of total ostracism in his profession.” While analysts such as Sandor Ferenczi continued, at the margins of mainstream psychoanalysis, to understand hysteria as trauma-based (Rachman 1995; Smart 2000; Roeder 2018), Freud recanted: “By the first decade of the twentieth century, without ever offering any clinical documentation of false complaints” (Herman 2015, 14), Freud wrote that his patients’ rape stories were “only fantasies” they had “made up” (Freud cited in Herman 2015, 14). Founded in this moment of turning, Freudian psychoanalysis subsequently became the study of “internal vicissitudes of fantasy and desire, dissociated from the reality of experience” (Herman 2015, 14). In the context of rape law, Freud’s turn amounted to a shift from the prosecution to the defence (Mawson 1999).

Building on the established place of expert psychiatric testimony in criminal trials in the second half of the nineteenth century (Rosenberg 1968), in the early decades of the twentieth century perspectives derived from Freudian psychoanalysis were increasingly present as legitimate trial evidence (Fass 1993). Well before psychoanalysis peaked in the 1950s came Clarence Darrow’s famously psychoanalytically driven defence in the 1924 case of “celebrity murderers” (Higdon 1999, 280) Leopold and Loeb. Because Leopold’s and Loeb’s crime was carefully planned an insanity defence would likely fail; but pleading guilty would lead to the scaffold. A vocal opponent of the death penalty, Darrow answered the dilemma by engaging an influential interpreter of Freud’s ideas and experts in the relationship between psychiatry and law in order to mount a new kind of defence, one that subverted the distinction between knowing intent and insanity to make space for a guilty plea mitigated by psychological ‘abnormality’, thereby opening the possibility of non-standard sentencing (Fass 1993). As Fass (1993, 932) documents, Freud’s ideas gave Darrow “a new psychological vision in which normal and abnormal were continuous and in which unconscious processes, rather than knowing intent, were paramount”. In turn, Darrow’s successful defence (the pair escaped the scaffold) and the trial’s international profile gave psychoanalysis a “new visibility in popular culture” (Fass 1993, 930) as a source of modern innovation in legal discourse. It is widely known that William Randolph Hearst tried unsuccessfully to hire Sigmund Freud to provide expert opinion at the Leopold and Loeb trial (Freud refused, citing illness). Less well known is that, a decade later in 1934, at the beginning of Mendelsohn’s seventeen-year term as a barrister in Bucharest, he succeeded where Hearst had failed.

As Winnik (1974) documents, Mendelsohn was among the lawyers who turned to Freud before his death in 1939, twice soliciting expert opinion from Freud that he subsequently presented in court. In 1934 Mendelsohn sought and received validation from Freud that his client’s prison escape was motivated by an inner force beyond his control, namely his “sexual drive and the compulsory character of its impulses” (Freud to Mendelsohn, cited in Winnik 1974, 7). In 1937 while defending a client accused of sexually abusing two boys, Mendelsohn consulted Freud about his client’s “psychic disturbance” (read: same sex desire) asking if it can be attributed to his mother’s alcoholism, and if it can be “overcome” (Freud to Mendelsohn, cited in Winnik 1974, 7–8). Freud responded that same sex desire in men is attributable not to maternal alcoholism, but instead “tender attachment to the mother”, and that overcoming it is “certainly possible” (Freud to Mendelsohn, cited in Winnik 1974, 7). In both cases, using Freud as a source of evidence about the psychic life of a person led to reduced legal blaming of that person, with Freud’s evidence enabling Mendelsohn to secure a lesser penalty for both clients, just as the Freudian perspective had done for Darrow. In ‘Rape in Criminology’, however, Mendelsohn mobilises Freudian psychoanalysis to achieve the opposite effect, adopting a psychoanalytic depiction of the rape complainant as a lying fantasist to intensify legal blaming of that person. As my reading will show, at a time when advances in law-facing medical science were serving to corroborate rape survivors’ stories, Freudian psychoanalysis gave Mendelsohn a framework for updating and reasserting rape law’s historical suspicion of the rape complainant. The view of rape given in Freud’s public recantation aligned well with the revolutionary style of legal defence Mendelsohn followed, known as zealous advocacy.

The Rise of Zealous Advocacy

The revolutionary redefinition of rape was bound up in the wider penal transformation framed by Foucault in Discipline and Punish as the rise of disciplinary power amid the shift from punishment as public torture of the body, to punishment as “an economy of suspended rights” in Bentham’s panopticon penitentiary (Foucault 1991, 11). Focused primarily on the figure of the convict, Discipline and Punish does not scrutinise another significant shift in this period, namely the formalisation of the right to legal defence and, in the nineteenth century, the increasing organisation of criminal defence around the practice of ‘zealous advocacy’ (Smith 2012). Today the criminal defence lawyer is “arguably one of the most recognisable legal professionals” (Smith 2013, 111), but before the eighteenth century, when the criminal trial was still a “lawyer-free contest of amateurs” (Langbein 1999, 314), defence counsel was absent, even forbidden, in trials about serious crimes such as rape (Langbein 2003; Beattie 1991; Landsman 1990). As Smith observes, the advent and eventual entrenchment of the criminal defence lawyer came as part of the revolutionary changes of the eighteen century which foregrounded “Enlightenment ideals of individual rights and accountability of the powers that be” (Smith 2012, 5). The lawyer was to guard the liberties won through revolution by standing ever ready to defend the rights-bearing fraternity against legal tyranny and biased prosecution.

In a development that was by no means inevitable (Smith 2012), amid the emergence and lawyerisation of the adversarial criminal trial the role of the lawyer increasingly was organised around the aggressively partisan figure of the zealous advocate. As per Henry Brougham’s definitive statement in 1821, zealous advocacy directs lawyers to act as the “loyal partisan of the accused” and diligently mount a “single-minded and unyielding defence” (Smith 2012, 8), without regard for “the alarm, the torments, the destruction he may bring upon others” (Brougham 1821, cited in Smith 2012, 9). Theoretically, only through such partisan, unyielding, destructive zeal can legal sovereignty be held in check and fairness assured. That the zealous advocate’s fealty to the accused will manifest as impeachment of the complainant is expected, and in the context of the rape trial zealous advocacy rekindled rape law’s pre-revolutionary logic that the accusation can only be credible if the victim holds to it even while enduring torturous interminable interrogation (Vigarello 2001). The advocate’s typically prolonged and aggressive prosecution of complainant witnesses in rape trials has been persuasively critiqued as “destruction of evidence” rather than facilitation of truth telling (Epstein 2013; Lininger 2005). Feminists have long referred to the re-victimising effects of lawyerly zeal in rape trials as a ‘second rape’.

Robust criminal defence is possible without the destructive hostility of zealous advocacy (Lininger 2005), but its ways were normalised by the mid-nineteenth century when the place of professional lawyers in the legal landscape had been secured and became generic (Smith 2013). According to Vigarello (2001, 91), in the context of rape law defendant rights guarded by zealous advocates delivered “new protections for men” that subverted the revolutionary enfranchisement of the rape victim: “The man was protected, while the possible oppression of his act was ignored.” The victim continued to be informally framed and addressed as a co-defendant, but now also lacked access to the newly minted legal protections revolutionary change had afforded formal defendants, such as the presumption of innocence and rights to defence counsel (Gold and Wyatt 1978). By the late twentieth century this scenario of injustice became a key rationale for the global wave of feminist-led rape law reform which provided complainant defences through measures such as rape shield laws (Vigarello 2001; Bourke 2007). In Mendelsohn’s time, however, this scenario appeared to be imperilled, by the growing power of law-facing medical science to corroborate complainant testimony. My reading will show that Mendelsohn’s ‘Rape in Criminology’ is specifically shaped as a zealous advocate’s answer to this peril. Mendelsohn not only modernises and updates the advocate’s modes of impeaching the rape complainant, but also proposes to remodel the legal handling of rape according to the priorities of the advocate.

Reading ‘Rape in Criminology’

In this section, I provide a reading of ‘Rape in Criminology’, bringing to light Mendelsohn’s bio-psycho-social method of criminal defence and proposal for rape law reform as they unfold across the essay. As we will see, ‘bio’ refers to the resistant female body, ‘psycho’ to the suggestible or pathological female mind, and ‘social’ to the rape complainant’s social status and environment, conceived as a potential source of corrupting influence and in this way productive of false rape claims. Mendelsohn’s bio-psycho-social method mobilises biological discourse, Freudian psychoanalysis and a nascent psycho-sociology treating the social environment as an influence upon “suggestible” (Mendelsohn 1940, 44) females. This assemblage of “the latest scientific knowledge” (Mendelsohn 1940, 48) gives rape myths a modernising intellectual makeover by establishing scientifically the impossibility of rape, ergo, the untrustworthiness of rape complainants. Mendelsohn’s lawyerly tools for mounting a bio-psycho-social defence include a typology of false rape victims, a step-by-step rape story used to examine complainant resistance during the event, tactics for handling positive forensic evidence of rape, and psychoanalytic grounds for discrediting rape complainants as unreliable witnesses. In the final chapter Mendelsohn’s proposal for rape law reform is couched as victim-supporting, even feminist, because it expresses concern for complainant welfare and promotes women legal professionals. As with his method of defence, however, the reform proposal is premised on the idea that rape accusations are false because rape is impossible. Accordingly, it envisages future rape law as a venue of complainant recantation.

Fortresses and False Victims

The first two chapters of ‘Rape in Criminology’ present typical revolutionary fare alongside Mendelsohn’s first strides into his unique bio-psycho-social perspective on rape. Like many before him he defines the female body as “unassailable” (Mendelsohn 1940, 32), and on this basis depicts rape as impossible – an arduous and logistically difficult task in which a man faces multiple perils posed by a fiercely resistant female body – which in turn delivers the idea that rape accusations must be generically false. Rather than simply reassert the ‘rape is impossible’ rape myth, however, Mendelsohn reframes it as science – the science that forms the basis of his method of criminal defence. In the first chapter, having presented the analogy that women are “fortresses that can only be conquered by a force so great as to paralyse any defence” (32) as biological fact, he draws upon psychoanalysis to depict women as more libidinal than men, and as afflicted by a conscious will/subconscious body conflict, leading to the argument that, if the woman’s natural capacity for resistance was not activated during the act, she subconsciously desired and consented to the act, regardless of her reported conscious will; or she consented to the act, and is lying about her conscious will. Having established that “faking or consent are always possibilities” (29), Mendelsohn maps out a typology of false rape victims, and in the second chapter provides a graphic step-by-step account of a rape where, under sub-headings such as “The struggle to immobilise the victim’s upper body” (34) and “The struggle to spread the legs” (35), he points out multiple ongoing opportunities for resistance theoretically available to the would-be rape victim, spotlighting the physical threat resisting women pose to men’s vulnerable bodies.

Typologies abound in ‘Rape in Criminology’ where Mendelsohn organises people and actions into different categories and pursues rhetorical strategies such as identifying a rule before elaborating numerated exceptions to the rule. This builds a picture of his perspective on rape as replete with range, detail and nuance, obscuring the monolithic position undergirding the essay. In ‘Rape in Criminology’ Mendelsohn’s identification of different types of false rape victim does the important job of furnishing the idea that rape claims typically are false with an apparently scientific basis. Rape law’s longstanding suspicion of the victim is recast as scientific as he anoints the following types of suspicious accusers: the “dishonest woman” (Mendelsohn 1940, 29) who is seeking marriage or conducting blackmail; the “pseudo victim” (29) who stages a “flagrante delicto rape” in order the catch the offender in the act, pretending to resist in order to later pose as a victim; the “mythomaniac” (29) who lies and exaggerates pathologically; the “mistaken” (30) victim whose short-sightedness, fear or suggestibility led to the wrong person being accused; and finally the complainant led by “revenge” (31) into deceiving the justice system. The typology is couched as a lawyerly tool for detecting false victims. It describes victims in a way that strips them of victimhood, but it is nonetheless Mendelsohn’s first victim typology – the earliest evidence of his science of victim culpability, thus significant to the origins of victimology. The false rape victims identified in ‘Rape in Criminology’ resurface as “delinquent”, “simulating” and “imaginary” victims in the “more” and “most guilty” victim categories in ‘The Victimology’ (Mendelsohn 1956, 34). The overlap between these texts explains why Mendelsohn later moved to re-title his 1940 essay: “the title ‘Rape in Victimology’ would harmonize better with the contents of my article” (Mendelsohn 1963, 241).

Like the false victim types presented in the first chapter, the second chapter’s graphic account of “each phase of a criminal rape commission” (Mendelsohn 1940, 32) is couched as an essential tool for detecting false victimhood. Determined to shut down the question of “whether the victim has given her consent” (29), Mendelsohn eventually will argue that the only potentially valid testimony a rape complainant can offer the legal process is her report on her self-defensive efforts during the event, which he frames as data requiring forensic psychiatric examination to determine its validity. Mendelsohn’s rape story heralds as ideal “the victim who is determined to resist to the best of her defence capacity” (35), providing a yardstick for examining complainant self-defence reports. The Havelock Ellis-inspired motif of masculine aggression and feminine vulnerability was ascendant at the time (Gavey and Senn 2014), and Mendelsohn’s (1940) rape story describes a man aggressively attempting to rape a woman. But his story emphasises masculine vulnerability and feminine aggression, and as he narrates ‘steps’ from being “brought down” to “clothing removal” (Mendelsohn 1940, 33) and physical struggle, he frames escalating acts of aggression as an ongoing set of opportunities “encouraging the victim to resist” (35), to decide whether to “allow” or “resist” (33), and to fight back: the would-be victim “should be able to defend herself using her fists, scratch the perpetrator with her nails, tear his hair out, bite him in the face or on the chin, bite his ears, nose or hands” (34, original emphasis). Rape thus becomes an event in which a fiercely resistant woman physically assaults a vulnerable man: “lead him to hospital, not to jail!” (34). In a valid rape complaint the victim will be injured and her clothing torn, but there must also be “physical marks on his body” (34).

While linking women’s bodies with abundant capacities for physically combative resistance, Mendelsohn (1940) links men’s bodies with sexual incapacitation and suffering, emphasising what they are “unable to achieve” and “unable to meet” (Mendelsohn 1940, 35) in the face of the woman’s “violence”, “overwhelmed” by her “excruciating blows”, and suffering “violent pain” and “injury” (36). According to the argumentation in these first two chapters, unless the defendant is a victim of physical combat and hospitalised, he is a victim of false accusation. This invites us to see the fully resistant woman, who causes and sustains physical injury, as a potentially valid rape complainant, and Mendelsohn also spells out valid exceptions to this rule, indicating ways in which the victim’s “will to resist” (1940, 32) can be disabled. This gives the impression that Mendelsohn admits rape is possible under certain circumstances, however this is later subverted in his discussion of all females as unreliable witnesses.

New Scientific Witnesses in Rape Law

Chapters three and four of ‘Rape in Criminology’ deal with two still emergent scientific ‘witnesses’ (or forms of scholarly expertise perceived by law as legitimate, evidence-deriving ways of knowing) in rape law: respectively, the increasingly sophisticated science of body fluid and tissue identification in twentieth century forensics, and Freudian psychoanalysis, psychiatry’s fledgling next orthodoxy. Together the chapters read as a problem (new forms of potentially complainant-corroborating forensic evidence that lawyers must be able to understand and combat) meeting a potential solution (updated and modernised impeachment of the rape complainant, grounded in the science of psychoanalysis). That Mendelsohn had met the problem of forensics head-on in his legal practice is evident from his discussion of his client Thomas Banutza, who was convicted of rapes in which syphilis was transmitted to two of three female victims aged 6, 8 and 9. Mendelsohn identifies Banutza with La Roncière, the French Lieutenant famously convicted in 1835 of attempting to rape 16-year-old Marie de Morell. As Shields (1995, 85) documents, early twentieth century commentators on the La Roncière case were convinced that, since the emergence of Freudian psychoanalysis, their century “has an understanding of the case which was not available to the jury in 1835.” Reflecting this, Mendelsohn (1940, 30) indicates psychoanalysis could have prevented La Roncière’s conviction, as “proper psychological examination” of de Morell would have revealed a lying hysteric. Similarly, according to his account of the Banutza case, while the defence was unable to refute evidence that the rapes transmitted syphilis, Mendelsohn’s mistaken identity defence (arguing that the culprit is not the accused) might have succeeded had the judges been schooled in the psychoanalytic knowledge that children are naturally mendacious and suggestible (especially if they are female), thus establishing the unreliability of the girls’ identification of Banutza as the culprit, and steering the judges away from being “too easily impressed by the children’s innocent looks” (Mendelsohn 1940, 31). Applying lessons learned in the Banutza and other trials, and coming from a place of threatened defence prospects, Mendelsohn’s method of criminal defence aspires to use psychoanalysis to rescue the modern-day La Roncières from the modern-day de Morells.

Located at the centre of Mendelsohn’s five chapter essay, chapter three begins with a solemn reminder from Victor Hugo of the advocate’s responsibility to zeal (“as long as the possible is not done, our duty will never be fulfilled”) and asserts defendant rights (“The defendant is innocent until proven guilty—culpability must be proven”) (Mendelsohn 1940, 37) before providing a lengthy discussion of the new forms of potentially complainant-corroborating forensic evidence achieving acceptance in the legal sphere. Mendelsohn is particularly concerned with testing triggered by the “presence of the same venereal disease in both the defendant and the victim” (38), and testing of secretions (spermatozoa, sweat, saliva) that can potentially identify the defendant via their blood type. Rather than celebrate this modern science, we find Mendelsohn preoccupied with casting it into doubt, calling it to greater rigor, and demoting it to an underdeveloped source of “clues” (41) rather than valid evidence. He advises lawyers to apply the “hypothesis of a mere coincidence” (38) when physical evidence derived from forensic science threatens to scupper the defence. He also exploits the fissure within law-facing medical science between its new paths to potential rape complainant corroboration and its established culture of disbelieving complainants, citing and according greater authority to area literature aligned with that culture. Scientific evidence of rape has always involved intimate corporeal testing and examination of the complainant (Quinlan 2017). But with forensic science increasingly obliging defendants to submit to similar regimes of testing and examination, Mendelsohn moves to intensify attention to the rape complainant, advocating not only that they be vigorously interrogated and their psychology forensically examined, but also, if disease transmission is evident, that the investigation should eliminate the possibility of the complainant having been infected by a member of their family, household or friend group, by having all of these people undergo the same testing as the defendant (Mendelsohn’s 1940, 38).

Mendelsohn (1940) also makes the subtle but significant move of classifying the complainant’s report on “each step of the sexual act including attacks and defence” (41) not as witness testimony, but as data belonging to the category of scientific evidence that, like this category’s hard scientific data on blood chemistry and disease transmission, needs to be forensically examined for signs of corruption. The complainant’s self-defence report would be scrutinised against Mendelsohn’s step-by-step rape story in chapter two, and its data tested for signs of having been shaped by an exterior (social) or innermost (psychological) “influence” (41). Mendelsohn’s later rape law reform proposal advocates for redesigning the legal handling of rape around the goal of removing and controlling for these influences, implying that, in the absence of such redesign, the scientific validity of complainant-derived data cannot be assured.

Mendelsohn’s many trepidations about modern science in chapter three then fall away in chapter four as he draws liberally upon the modern science of psychoanalysis, using it to reframe longstanding rape myths as cutting-edge discoveries about females that attest to their unreliability as witnesses. Rape law’s historical suspicion of the victim is recast as an elaborate schema drawing upon psychoanalysis to rank witness types in order of declining reliability and thus increasing need for judicial “caution” (Mendelsohn 1940, 43) in the interpretation of their evidence. Across all witness types, the schema depicts the defendant, always a boy or man, as more honest and reliable than the complainant, always a girl or woman, effectively invalidating all rape accusations made by females.Footnote 3 While male defendant dishonesty belongs in the range of normal “distortions of truth” (42), female complainant dishonesty arises from the realm known expertly by psychoanalysts: female psychological suggestibility and pathology. This applies to the adult woman rape complainant, but Mendelsohn’s discussion of rape complainants as witnesses focuses primarily on female children, adolescents and young adults. Mendelsohn marshals sources in forensic medicine and child psychology that use psychoanalysis to “undermine the credibility” (43) of child complainants (especially the “least sophisticated” [43] children of lower social class) by accepting Freud’s understanding of children as governed by the “pleasure principle” over the “reality principle” and “truth” (44).Footnote 4 Stating that children are “unable to speak the truth” (45, original emphasis), Mendelsohn cites sources that describe children as having “insufficiently developed and obtuse” (43) minds, making them “incapable of telling the truth”, “naturally inclined to distort the truth, to make things up”, and “extremely suggestible”. In sum, “anything said by a female child and a teenage girl should be ignored” (44). Mendelsohn (44) praises the sources’ authors for overcoming their professions’ inclination “to believe the victim” (“to their credit, their scientific knowledge has overridden the potential biases of their profession”), asserting that “ignoring these realities has resulted in so many instances of miscarriage of justice in the history of the judicial system.”

The idea of female “suggestibility” enables Mendelsohn (1940, 45) to render rape complaints as fictions planted by an exterior influence (a social more, a parent, a police officer, fellow complainants, even an “overheard … snippet of a conversation” held “in her memory”), or else an influence interior to the complainant’s own mind (her “vivid imagination”, or “pathology”). This depiction is important for persuading judges to see how a young complainant might have gained sexual knowledge she “could not have experienced … at that age” (45) other than through rape. It also helps diffuse the corroborative force of cases involving multiple complainants:

Girls … are all the more vulnerable to suggestion when they are emotional … They are all the more fragile when they are part of a large group and when their conscience is troubled by their sexuality. The investigating judge should not let the uniformity and unanimity in the children’s declarations cloud his judgement. (Mendelsohn 1940, 45)

Mendelsohn asserts that girls make “false declarations” (Mendelsohn 1940, 45) under pressure from parents and through untrustworthy unconscious processes such as “auto-suggestion”, by which “she will eventually come to sincerely believe that the man is actually the offender” (45). He observes that in rape investigations “the victim’s answers” are “shaped” by the “place and the atmosphere in which the deposition is gathered … the gender of the interrogator, and even their looks” (47). Anticipating the following chapter’s reform proposals, Mendelsohn (47) argues that interactions with young females should be “built around particular psychological conditions” that “keep the child away from these influences”, lest the consequences “be fatal to the innocent defendant”. The least reliable witness type in Mendelsohn’s (46) schema – the one requiring the most judicial caution – is the “pathological underage girl” who “displays mythomaniac, hyper-emotional, hysterical, epilepsy-like tendencies, or obsessions, bouts of depression, mental confusion or chorea” and may have “a history of alcohol abuse, syphilis or neuropathy”. The pathological girl’s complaint originates in her own “pathological imagination”, which generates “fabricated stories” and “sexual lies [that] can seriously mislead primary school teachers, priests and doctors” (47). True to the undergirding position that rape is impossible, even the girl who follows the ideal path of resistance mapped in Mendelsohn’s rape story is rendered suspect in his schema. Mendelsohn reasons that, because of “the pain inflicted … the exhaustion resulting from the struggle”, it is “nearly impossible for the child to remember what the offender looked like. When the child says she has recognised her offender, this has no solidity, even if she knows the offender, and under these circumstances, she could easily confuse him with someone else” (45). Mendelsohn recommends lawyers apply the “mistaken identity” (45) defence, recasting the resistant girl as an unreliable witness, on account of her strenuous resistance.

Send Them Home

Mendelsohn’s final chapter presents his proposal for rape law reform, which aims to “reconcile the judicial processes with the latest scientific knowledge” (1940, 47), namely the knowledge of female resistance, suggestibility, pathology and dishonesty (and of male vulnerability, innocence and honesty) presented in ‘Rape in Criminology’. Imagining how the legal handling of rape would be conducted if it were reorganised around this knowledge, Mendelsohn envisages a legal process that provides environs that “facilitate confession” (48) to false accusation of rape. Likening the young rape complainant to “a patient under the care of a psychoanalyst” who “may take months to tell the whole truth let alone part of it”, Mendelsohn (48) impresses the need for a legal environment that removes tainting influences to create “an atmosphere conducive to disclosing secrets” (45). The proposal is couched as being in the interests of young complainants because it responds sensitively to their presumably discomforting experiences in the legal process. Omitting the discomfort of cross examination by the defence, his examples include “talking about sex with men” and feeling “intimidated by the formality of the courtroom and its audience” (48).

Rather than allay complainant discomfort, however, Mendelsohn’s proposal uses it as a pretext to radically reconstitute rape as a private matter rather than a public concern. He advocates for the removal of rape trials from the public sphere, arguing they should be conducted instead in the young complainant’s family home. Moving to silence young complainants completely, he proposes that courts no longer directly communicate with or hear from them. Instead, a “female psychology expert” (48) should act as intermediary, replacing complainant testimony with “her interpretation of the child’s deposition” (49). Appearing to promote female professional advancement, Mendelsohn suggests the legal handling of rape cases, upon moving to the family home, should be put in all-female hands: “there should be female investigating judges, assisted by female court clerks, female stenographers, and a female expert who specialises in the area of psychology concerned with these offences” (49). Ultimately, then, Mendelsohn redefines rape as a problem of false accusation, then renders false accusation as a private problem belonging wholly to women. In this way his zealous vision for reform more than reverses the revolutionary enfranchisement of the rape complainant. Instead of reverting back to her feudal status as co-defendant in a property crime, she becomes the sole defendant in a crime of false accusation: a criminal who victimised an innocent man. Mendelsohn’s reform proposal thus goes beyond the decriminalisation of rape to further beckon the criminalisation of making a rape complaint.

Conclusion

This article has shown ‘Rape in Criminology’ is a significant text that casts light on the origins of Mendelsohn’s victimology as a ‘bio-psycho-social witness’ in the context of rape law. At a time when advancements in law-facing medical science were coming into conflict with the legal impunity of rape, Mendelsohn’s victimology emerged as a counter-assemblage of claims about the female body, mind and social environment that sought to modernise and update, in order to protect and conserve, the rape lore in rape law. Underlining men’s physical and social vulnerability to women’s and girl’s violent resistance and social power, and capitalising on new avenues of legal defence afforded by Freudian psychoanalysis, Mendelsohn’s victimological iteration of rape lore depicts the complainant as a detectibly false victim, constructing her body as anatomically rape resistant and her mind as a repository of corrupt data – an environment in which external influences, unconscious processes and imperceptible secrets lead inevitably to distortions of truth and, ergo, scientific invalidity at law.

My reading of ‘Rape in Criminology’ vindicates the concerns expressed by many scholars who have linked Mendelsohn’s victimology with rape myths, even as it disputes how they have perceived that link, showing it is not only stronger than previously thought but foundational to the advent of victimology. Future narrations of the origins of victimology should accord due significance to ‘Rape in Criminology’ as a foundational text, avow victimology’s origins in the rape court, and rethink the nature of Mendelsohn’s ‘pivot’ between ‘Rape in Criminology’ (Mendelsohn 1940) and ‘The Victimology’ (1956). At one level it appears that between these texts Mendelsohn pivoted away from the legal handling of rape, and toward establishing a new science focused on crime victims in general (Sengstock 1976). But my reading suggests Mendelsohn’s pivot can also be regarded as a furtherance of his rape law reform advocacy – a move to create a law-adjacent intellectual context in which his bio-psycho-social perspective on rape would be validated by criminologists and further developed for legal exercise. If that was the goal, it was realised in Amir’s (1971) influential situational victimology of rape vulnerability and precipitation.

My analysis of ‘Rape in Criminology’ yields insights relevant to the cardinal question “Why do rape myths persevere in the face of their untruth?” (Edwards et al. 2011, 780), supporting feminist socio-legal scholarship that argues rape myths persist because they change over time, acquiring new iterations and resources that manage threats and disguise their increasing anachronism (Conaghan and Russell 2014; Mawson 1999; Naffine 1994; Calavita 2001; Smart 2000). Reflecting the scholarly register sponsoring law’s rape myths after the French revolution (Vigarello 2001), Mendelsohn’s ‘Rape in Criminology’ provides an example of change in the form of intellectual refurbishment – the reworking of rape myths as victim science – and change undertaken in response to new contextual uncertainties, in this case those arising from fissures between law-facing expert knowledge in its survivor-corroborating and survivor-impeaching forms. As such, the example of Mendelsohn illustrates both the persistence of rape myths and their precarity – their dependence upon sympathetic discursive reformulation in changing times. The example of Mendelsohn also speaks to the pivotal role of law in the perseverance of rape myths – not in the theoretical sense of revealing law’s determining role in constituting a rape-supporting social order, but instead in the historical sense of demonstrating that intra-legal labours of discursive reformulation and intellectualised zealous advocacy have played a part in shoring up modern law’s unerring tolerance of rape myths. In her work on the twentieth century (Smart 2000, 66) argues it was the “unchanging structure of the legal system … that most effectively prevented a wider reconceptualisation of child sexual abuse”, observing that “the practices and judgments of the courts seemed to exist in a kind of cultural isolation from the debates going on elsewhere in society” (Smart 2000, 65). As a lawyer’s report on the intra-legal labours of managing modern threats to revolutionary rape law’s “unbridgeable gap between text and reality” (Vigarello 2001, 88), ‘Rape in Criminology’ indicates that despite its intimidating track record law’s position of cultural isolation is not institutionally given and guaranteed, but discursively produced and precarious. Feminist socio-legal scholarship investigating the intra-legal labours guarding law’s cultural isolation can also expose its historical junctures of serious precarity. Such reminders of the non-inevitable place of rape myths in rape law can only further the feminist political task of making rape myths history.