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A Guide to Understanding the Complexities of Australian Rape Law

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The law of rape and sexual assault has been subject to continuous scrutiny and significant reforms over the years. Changes to the law relating to corroboration and recent complaint, along with introducing and/or amending definitions of consent, mens rea, and rules pertaining to the vitiation of consent, have all taken place in order to update the law and attempt to challenge myths regarding rape and sexual assault.

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Issues Concerning Consent

Establishing that the sexual intercourse occurred without the complainant’s consent is a major hurdle for the prosecution, particularly in non-stranger rape cases, which represent the majority of cases. The burden of proof means the complainant is effectively treated as consenting unless the prosecution can prove otherwise beyond reasonable doubt.

The prosecution must prove two elements: the physical – that the woman did not consent; and the mental – that the accused was aware the complainant was not consenting, or might not be consenting, did not care about consent, or had no reasonable grounds to believe in consent (depending on the jurisdiction). The focus of the trial then is on the physical element of consent with complicated judicial directions.

Indeed, the mens rea of rape is another area which has caused feminists consternation over the years. This was due in particular to the House of Lords’ decision in Director of Public Prosecutions v Morgan which adopted a subjective test regarding the defendant’s belief in consent. To this end, the prosecution had to prove beyond reasonable doubt that the defendant did not have an honest belief in consent.

Whilst the mens rea for rape has been the subject of heated debate, the extent to which it is a decisive factor in rape cases is, however, debateable. Most defence lawyers rely upon arguing there was consent, as it’s a dangerous strategy for defence to argue mistaken belief. As a consequence, the key issue, especially in acquaintance rape cases, was that the sexual intercourse was consensual, and defences of mistaken belief are therefore relatively rare.

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As Carline and Easteal conclude in Shades of Grey, ‘significantly, however, victim blaming attitudes and perspectives regarding what amounts to rape are proving difficult to displace and research indicates that the reforms have done little to assist the jury in understanding the notion of consent. It remains a nebulous concept. Reforms aimed at dramatically reforming the offence so to render consent less pivotal have also not been entirely successful.

For example, despite the fact that consent laws have changed no longer requiring physical resistance, we often still see juries looking for resistance and injury. Further, myths about prior consensual sex continue to influence what is constructed by the court as coercion and consent and as mitigation by some in sentencing, recognising, as one judge put it, ‘the very special relations between husband and wife.’

The (Lack of) Consequences of Reform

Despite a slew of reform, the mythology persists. Concerns remain with regards to the extent to which notions of ‘real rape’ and false allegations continue to pervade the public and legal imagination, impacting upon all of those who are involved in, or come into contact with, the law – from legislators and judges, through to complainants and jurors.

The number of cases reported to the police remains very low and the overall attrition rate for rape within the criminal justice system is exceedingly high.

We continue to have an invisible but extremely powerful continuum of what is perceived as authentic rape at one end, and not quite legitimate assault at the other end. If the rapist was a stranger, if the assault took place in her home which he had broken into, and if she was beaten seriously enough to get injuries, then maybe she will be seen as not having precipitated it and the reaction will be supportive.

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For instance, in DPP v Waromi 2016] VCC 1103 [30]:  ‘… This incident occurred in the complainant’s home, where she should have been able to be safe. She was kind enough to allow you to stay because you asked for her help. You took advantage of her kindness and trust. Your actions constituted a gross breach of her trust. You knew her child and his friend were in the house; in that you knew she had children.’

Laws have an open-plan construction with a lot of interpretation and discretion. And those doing the interpreting are often using the dictionary of false myths as their guide.

In fact, in many ways, rape and law reform remind me of a treadmill – the illusion that you’re getting somewhere when in fact you’re staying in one place. It is the mission of Legal Light Bulbs to improve the ordeal of rape victims’ experiences with the criminal justice system. We do this through online and face-to face violence against women training, conducting sexual assault research projects, and by offering expert reports for court providing evidence concerning the victim’s reality of consent.