Gendered Discretion, Gendered Institutions and Gendered Consequences: the Implementation of Rape Laws in Portugal

Rape is the crime that systematically verifies the highest rates of attrition worldwide. Important contributions from Gender Studies, Sociology, Psychology and Criminology have pointed out how the victim plays a big role in this process, not presenting complains or withdrawing mid-process due to feelings of shame, fear, distrust, etc. Comparatively, we know little about the State’s role in the (re)production of these attrition rates. We do, however, have some important clues. We already know through Political Science literature, particularly that on Public Policy, that the Criminal Justice System personnel works with bureaucratic discretion – i.e., these workers exercise choice and make value judgments during the course of their work. Yet, this discretion has usually been perceived neutral, a mere attribute of individual agency. Resorting to Feminist Institutionalism, I argue this discretion is exercised in gendered ways and through gendered institutions and, therefore, generates gendered consequences. I will do so by analysing the implementation process of rape laws in Portugal, looking at the rules of the game at play. This will mean an analysis of both the formal rules – i.e., resorting to primary sources, reflect on the existing rape laws – but also of the informal rules – i.e., resorting to semi-structured interviews with police officers, prosecutors and judges, try to capture the systematic exertion of gendered bureaucratic discretion. Ultimately, this will allow for a more comprehensive understanding of the “rules-in-use” in the implementation process of rape laws, the “logic of appropriateness” of state’s institutions and, consequently, of the bigger picture of the State’s role in rape attrition.