How narratives of female sexual agency conceal vulnerability to rape: an analysis from South Australian rape trials

ABSTRACT

The legal requirement of consent presumes women conduct their sexual relations in the twenty-first century from a place of increased sexual liberation and agency, concealing the sexual double standard by which female sexual behaviour is judged. Consent-based reforms on their own, therefore, provide little recourse for rape victims when evidence of their past sexual history or sexual behaviour, such as flirting or sexting, may be admissible at trial. Informed by a thematic analysis of District and Supreme Court judgments from South Australia between 2012 and 2023, this article explores how accused persons may rely upon a victim’s sexual history or behaviour to create a narrative of implied consent or to support their belief in consent. Considering these findings, I argue that the progression towards more egalitarian sexual attitudes remains a double-edged sword for women as it sanctions their portrayal as sexual agents while concealing their vulnerability to rape.

KEYWORDS:

• Consent
• law
• feminist jurisprudence
• rape
• rape shield laws
• sexual double standard

1. Introduction

Feminist reformers have leveraged increased egalitarian gender attitudes in the twentieth and twenty-first centuries to advocate for reforms to rape laws which decentralise focus on women’s¹ behaviour, reputation and sexual history as relevant to their status as victims.² For example, all Australian jurisdictions now have rape shield laws limiting the cross-examination of victims³ regarding their sexual history and reputation.⁴ Notwithstanding such reforms, exemptions to these rules, as well as the insidious embeddedness of many rape myths,⁵ has meant that evidence of a woman’s sexual behaviour or history remain admissible at trial, allowing finders of fact to default to myths around female sexuality and worthy victimhood. These myths include such falsities as a woman’s sexual experience makes it more likely that she consented, women who act in a sexual manner lack credibility, women say ‘no’ when they mean ‘yes’, and women frequently lie about rape.⁶ These myths imply that women who transgress female requirements of virtuosity and act like men by, for example, exhibiting sexual desire are willing participants in sexual encounters, their alleged promiscuity removing their status of victimhood and, consequentially, their right to legal protection.⁷

Part 2 of this article begins with a summation of the origins of the law’s fixation with women’s virtuous behaviour as proof of their victimhood and explores how, historically, unchaste women were categorised as legally unrapeable. It thereafter summarises the shift in Australian laws from a focus on women’s sexual reputation as relevant to their sexual complicity to the introduction of rape shield provisions, aimed at recognising the sexual autonomy of women to consent to sexual activities without suffering the penalty that once resulted from unchaste behaviour. Overall, this part argues that the effectiveness of these reforms remain obstructed by the endurance of a sexual double standard, whereby women are judged more harshly than men for engaging in comparable sexual behaviours while men are less restricted in their sexual freedom.⁸ Thus, while consent-based laws presume that the sexual playing field is equal, the pervasiveness of the sexual double standard impedes not only a woman’s ability to make free and autonomous sexual choices but also dictates whether that choice will be respected by the accused and the judicial system.

Parts 3 and 4 substantiate this argument by providing examples from case law to show how the sexual double standard continues to influence assessments of victimhood and vulnerability for women who subvert traditional gender roles and act with sexual agency. Part 3 explores how evidence of a victim’s past sexual history may be admissible at trial to create a narrative of continual sexual interest, discredit victims, or support an accused person’s belief in consent. Part 4 analyses how legal requirements of consent expect that women conduct their sexual relations from a place of sexual liberation and agency, ignorant to how the sexual double standard constrains and punishes women who exert such agency. In this regard, it is argued that women who act as empowered sexual agents are deemed unrapable because they are either presumed to be capable of active refusal, their sexual behaviour implies consent, or it is relevant to an accused’s belief in consent.

Overall, this article argues that while requirements of chastity and virginity may no longer be proscriptive in contemporary Western societies such as Australia, the law continues to operate from the presumption that sexually available women are unrapable.⁹ Thus, despite women having increased freedom in the twenty-first century to have casual sex or express their sexuality to the same extent as men, the cases analysed in this article suggest that if a woman exercises her sexual agency, she forfeits her right to claim vulnerability. The failure of the legal system to recognise the sexual vulnerability of women when they exert sexual agency ensures that victims’ actions and behaviour remain on trial, and myths regarding acceptable feminine behaviour and conduct continue to influence judicial determinations. This ensures that the responsibility for the avoidance of sexual violence remains on individual women, rendering both male responsibility and the systematic nature of sexual violence against women obsolete.¹⁰

1.1. Methodology

The cases discussed in this article were identified by searching the South Australian reported cases in the LexisNexis, WestLaw and AustLII databases for references to sections 46, 47 and 48 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and by keywords such as ‘rape’ and ‘consent’. The search was limited to adult rape cases decided from 2012 to 2023 to consider the most recent applications of the relevant sections. The sampling framework drew from both judge-only trials and appellate decisions. The reasoning for this was two-fold. Firstly, District and Supreme Court decisions are publicly available on the databases, while there is no record of judgment for jury trials. Secondly, drawing from both trial and appellate judgments provided a larger sampling pool. Overall, 48 cases were identified using this process.

After the sample group was gathered, cases were coded and analysed using thematic and systematic content analysis. Systematic content analysis in legal research is a technique whereby a wide set of judicial texts is read to find overall patterns and common themes.¹¹ Systematic content analysis does not ‘explicitly aim to evaluate the legal correctness of judicial opinions’ rather, it seeks to systematically and objectively document patterns or trends in cases.¹² A thematic analysis likewise aims to identify, analyse, organise and describe patterns within a data set to locate certain themes.¹³

As this article observes how myths regarding women’s behaviour, reputation and sexual history emerged within the judicial texts, cases were coded by reference to thematic keywords such as ‘sexual history’, ‘reputation’, ‘attraction’, ‘interest’ and ‘flirting’. After the coding was applied to the dataset, 9 cases were identified as warranting further discussions in this article.

2. A history of rape laws & requirements of virtue

Rape laws were not historically designed to protect women from sexual violation but rather to guarantee the sexual access of men to the largest number of women.¹⁴ Consequently, the law was preoccupied with narrowly defining the crime of rape to guarantee that only the smallest number of women were deemed worthy of its protection.¹⁵ To ensure the protection of the law was merited, victims’ behaviour and conduct had to be impeachable, otherwise, they were deemed complicit sexual participants.¹⁶ The debts women paid for this protection were the constraints of virginity, chastity and fidelity.¹⁷ These requirements meant that lawful sex for women was limited to marriage, wherein consent was implied.¹⁸

As sex outside of marriage was illegal for women, her worth and credibility depended on maintaining her sexual fidelity.¹⁹ Any woman who risked imperilling or relinquishing her chastity by seeking her own sexual pleasure or placing herself in a position of vulnerability through her behaviour or conduct was regarded as ‘public property’ and, therefore, not legally rapeable.²⁰ Allegations of rape compromised women as they were assumed to be participating in the crimes of fornication or adultery, even if their participation was not consensual.²¹ To ensure they were not guilty of such a crime, women were required to deny their sexual complicity through proof of their resistance.²² Male sexual access, however, was not similarly constrained, and sex outside of marriage was broadly permissible.²³ Some women, therefore, needed to serve as sexual partners for men outside of the marriage contract.²⁴ Thus, women who were ‘immoral’, promiscuous or transgressed feminine ideals of respectability were deemed to be legitimate sexual partners and consequentially both unrapeable and unworthy of legal protection.²⁵

2.1. Sexual history evidence in Australian rape law

This focus on female sexual morality was transposed into the earliest Australian rape laws.²⁶ For example, at common law, defence counsel could lead ‘evidence that the [victim] was ‘a known prostitute’ [sic], ‘notorious for want of chastity’, a ‘woman of abandoned character’ or of ‘notoriously loose morals’.²⁷ The admission of such evidence was justified by the belief that there was a direct link between a victim’s sexual practices and her credibility, in that, a woman who ignored moral conventions with respect to sexual respectability was expected to ignore moral conventions regarding honesty.²⁸ Further, defence counsel could use sexual history evidence as suggestive of a predisposition to certain sexual proclivities, allowing past conduct to be relied upon as a substantive indicator of the likelihood of consent.²⁹ Therefore, the earliest Australian rape trials remained a test of a victim’s sexual morality and character.³⁰

The twentieth and twenty-first centuries saw a rejection of the constraints of chastity on sexual mores, with the sexual revolution of the 1960s and 70s bringing increased female sexual empowerment and liberation from strict gender roles.³¹ This saw many states and territories in Australia adopt a statutory definition of consent, emphasising the sexual autonomy of parties to freely agree to sex. Likewise, all Australian jurisdictions introduced rape shield laws, their aim being to acknowledge women’s autonomy to consent to sexual activities without penalty.³²

Despite the progression towards more egalitarian sexual attitudes, research shows that the sexual double standard continues to influence expectations as to how women will act in heterosexual sexual encounters.³³ Thus, while there has been a shift in discourses of sexual morality in countries such as Australia, female sexual behaviour continues to be scrutinised and monitored in ways equivalent male behaviour is not.³⁴ For example, it is generally permissible in Western cultures for women to engage in premarital sex. Still, it remains more socially acceptable for men to have a greater number of sexual partners,³⁵ to initiate sexual encounters or to engage in casual or ‘uncommon’ sexual acts.³⁶ Further, women who act in a sexual manner or explicitly communicate their sexual desires may risk negative social responses and be judged as more culpable for the consequences than more demure or ‘respectable’ women.³⁷ Thus, if a woman flirts with risk then she seen as carrying at least some responsibility for what happens.³⁸

The pervasiveness of the sexual double standard inhibits women’s ability to exert their sexual agency to the same extent as men. Nonetheless, consent-based reforms are predicated on the neoliberal assumption that each party to a sexual encounter can act as an autonomous, empowered agent.³⁹ Thus, when a woman exerts sexual agency in some circumstances, for example, by engaging in casual sex or explicitly communicating her sexual desires, it is assumed that this agency continues unabated, and her vulnerability to sexual violence is dismissed because she could just say ‘no’.⁴⁰ In this regard, rape shield laws, with their many exceptions, may offer little protection to victims, where fact finders may use evidence of sexual agency to obscure a victim’s vulnerability to sexual violence.

The following section begins with a summation of South Australia’s rape shield laws, noting their exceptions. Informed by the case law, it demonstrates how evidence of a victim’s past sexual history may be used to create narratives of continual sexual interest, discredit victims, or support an accused person’s belief in consent, allowing for dispositional reasoning based on rape myths. Overall, it is argued that the sexual double standard and its consequent myths regarding female sexuality dilute the effectiveness of rape shield laws and allow for finders of fact to use evidence of a woman’s sexual conduct as indicative of her unrapeability.

3. Sexual history evidence in South Australia

South Australia introduced rape shield laws in 1976.⁴¹ Section 34L(1) of the Evidence Act 1929 (SA) (‘Evidence Act’) excludes the admission of evidence of a victim’s sexual reputation⁴² and limits admission of evidence of their sexual activities with persons other than the accused unless with leave of the court.⁴³ Accordingly, a victim’s sexual activities before or after an alleged offence may only be admitted if the trial judge is satisfied that such evidence is (a) of substantial probative value or (b) would be likely materially to impair confidence in the reliability of the victim’s evidence,⁴⁴ such that it is relevant to the issue of consent or a mistaken belief in consent. The evidence does not need to be probative of a fact in issue.⁴⁵ While this gives considerable discretion to the trial judge, they must ensure that victims are not subjected to unnecessary distress, humiliation or embarrassment and that the admission of such evidence is required in the interests of justice.⁴⁶ Permission will not be granted if the only purpose of asking such questions or the admission of such evidence is to raise inferences about the general character of the victim.⁴⁷

The Evidence Act does not define ‘sexual reputation’ or ‘sexual history’. However, sexual history and sexual reputation are not mutually exclusive categories.⁴⁸ Sexual history evidence is admitted for the purpose of implying a connection between a victim’s sexual history and the likelihood that she consented to the sexual encounter in question. Admitting such evidence thereby invites finders of fact to make inferences as to the ‘type’ of sexual experience a victim would likely have consented to, suggestive of a certain sexual reputation, effectively defeating the purpose of the distinction. As the cases below demonstrate, the current laws do not prevent finders of fact from drawing inferences regarding a victim’s sexual reputation or general character from the admission of sexual history evidence.⁴⁹ This permits not only the admission of prejudicial evidence against the victim, but may infringe their rights to privacy, may cause unnecessary humiliation and distress and contributes to the legal and moral blame of victims for their own rape.⁵⁰

While sexual history evidence is ostensibly admissible to provide the accused with the ability to present their defence effectively, the right to a fair trial arguably extends beyond the rights of an accused but may involve a triangulation of interests, including the interests of the community and victims.⁵¹ For example, there is a public interest in the securing of convictions of guilty persons⁵² and the maintenance of public confidence may be undermined when victims are reluctant to prosecute due to the distress and humiliation caused by the admission of sexual history evidence.⁵³ Further, as discussed below, the probative value of sexual history evidence is arguably limited when its admission asks finders of fact to draw inferences based on ‘myths and misconceptions about rape that have no evidential foundation’.⁵⁴

While it is beyond the scope of this article to offer law reform recommendations, the review of the use of sexual history evidence in the cases discussed below demonstrates the urgent need for law reform in this area in South Australia. This issue is, however, not unique to Australian jurisdictions,⁵⁵ and the author acknowledges that effective law reform in this regard requires not only legislative amendments but also wider societal changes.⁵⁶ Notwithstanding, the following sections observe how the admission of sexual history evidence in South Australian trials allows finders of fact to draw adverse inferences regarding victim credibility, implied consent or to support an accused’s belief in consent from victims’ prior sexual behaviour.

3.1. Credibility

This section explores how the admission of sexual history evidence may allow finders of fact to rely upon myths regarding appropriate female behaviour to discredit victims. Evidence of sexual history may be admitted at trial if it is likely to materially impair confidence in the reliability of a victim’s evidence.⁵⁷ For example, evidence of victims’ sexual history may be admitted to suggest they were not truthful in their evidence-in-chief about the extent of their sexual experience with or attraction to the accused. While courts allow the admission of such evidence, ostensibly to raise doubt as to the credibility of a victim’s testimony, there is every danger that finders of fact will draw inferences regarding a victim’s sexual proclivity or immorality to create reasonable doubt that she did not consent.⁵⁸ While rape shield laws exist to prevent finders of fact from making this association, there is a risk that they cannot appreciate this distinction.⁵⁹

For example, the case of R v Esposito⁶⁰ demonstrates how sexual history evidence, admitted as relevant to a victim’s credit, can be used to imply a propensity to consent. In this case, the victim was question by the prosecution and defence as to her prior sexual encounter with the accused, whether she had sent him explicit photographs and videos, whether she had previously messaged him asking for sex and whether she was sexually interested in him.⁶¹ While the victim initially answered these questions in the negative during her evidence-in-chief, she changed her evidence during cross-examination when presented with messages from social media confirming the sexual nature of their communications.⁶² Tracey J noted that ‘it was most significant’ to her that the victim denied she had instigated or communicated with the accused in a sexually explicit nature when the evidence suggested otherwise, and accordingly, Her Honour was not satisfied as to the credibility and reliability of the victim’s testimony.⁶³

It is unclear, however, how evidence of events that occurred two months before the alleged rape is admissible other than to suggest that flirtatious behaviour has no temporal constraints or to allow prejudicial inferences to be drawn regarding the connection between sexual behaviour and testimonial veracity.⁶⁴ Even if the victim had previously engaged in flirtatious behaviour or sent sexual messages to the accused, it is doubtful how this is relevant to her exercising her agency to decline to have sex with the accused on the occasion alleged. Instead, by allowing such questioning, it furthers the myth that if someone has been sexually active with a person in the past, then they are more likely to have consented to a subsequent sexual act.⁶⁵ This undermines a woman’s sexual agency to agree to the terms on which they wish to have sex and allows finders of fact to blame them for the consequences of their perceived promiscuity.

The case of R v Dobbs⁶⁶ provides a further example whereby the admission of prior sexual history evidence provided finders of fact with the opportunity to draw a link between testimonial veracity and sexual morality. In this case, defence counsel cross-examined the victim on her attraction to the accused and whether their prior communications were flirtatious.⁶⁷ The victim denied being attracted to or sexually interested in the accused.⁶⁸ Defence counsel submitted that the victim’s rejection of sexual attraction, her initial denial that she had sent him a ‘naughty snap’, and her subsequent admission that she had sent him a naked photo undermined her credibility and reliability.⁶⁹ Fuller J accepted that the parties’ social media messages contradicted the victim’s repeated denials of sexual interest, and, in light of this, Her Honour thought the latter’s evidence was inherently unlikely.⁷⁰ While this evidence shows the victim was untruthful in her evidence-in-chief, diminishing her credibility, it is unclear what purpose the admission of such evidence serves other than to show that the victim was someone who had, at one point, a sexual interest in the accused, thereby inviting the conclusion that she was more than likely to have consented.

In the case of R v Green, the victim was also questioned with respect to her attraction to the accused and evidence of their Facebook messages were tendered in court.⁷¹ Chivell J had ‘some reservations about [the victim’s] evidence’ namely, His Honour did not accept her evidence that she was not attracted to the accused nor her denials that their Facebook messages were flirtatious.⁷² Likewise, in the case of R v De Wilde, Tracey J noted that ‘[the victim] appeared determined to portray herself as someone who held no genuine interest, either sexual or otherwise, in the accused’.⁷³ However, Her Honour thought the victim’s denials of attraction or interest in the accused ‘did not sit with the tone and content of the social media communications between [them]’.⁷⁴ Instead, Her Honour thought that the victim’s communications would have given the accused reason to believe she was interested in him.⁷⁵

By allowing evidence regarding prior sexual communication between victims and accused persons, victims are trapped in a double bind, for if they lie or are seen to minimise their sexual attraction, finders of fact may make adverse findings regarding their credibility.⁷⁶ However, if they answer in the affirmative, they risk portraying themselves as sexually available or allow for imputations that they were willing participants who had ‘invited’ the sexual encounter,⁷⁷ and their vulnerability to sexual violence is thereby obscured. Given consent cannot be predetermined, it is unclear why questions and evidence of past behaviours or conduct are allowed other than to exploit not only the myth that a victim’s sexual experience undermines her credibility but also the myth that the more sexual a victim behaves, the more likely it is that she consented.⁷⁸ This myth is discussed below.

3.2. Patterns of behaviour

Sexual history evidence may also be admitted if the trial judge believes such evidence to be of substantive probative value.⁷⁹ This section explores how defence counsel may use this evidence to demonstrate a pattern of behaviour on the victim’s part, similar enough to the alleged rape, to suggest that it was more likely than not that they consented.⁸⁰ The underlying premise of this defence strategy is that it is reasonable to assume that acts of sexual intercourse between the same two people are likely to be repeated in similar ways.

This tactic was used in the case of R v L OS.⁸¹ In this case, defence counsel applied under section 34L(1)(b) of the Evidence Act to question the victim about her previous sexual activities with the accused and her alleged employment as a sex worker.⁸² The application was made on the basis that ‘the circumstances of [the victim and accused’s] previous sexual encounter was not dissimilar to the circumstances of the sexual encounter before the court’ and ‘the previous sexual encounter … was very much connected with [her] previous sex work’.⁸³ While the prosecution contested the application on the basis that such questioning was irrelevant, inappropriate and highly prejudicial,⁸⁴ Deuter J was satisfied that the victim could be questioned about her sexual history with the accused as it was of ‘substantial probative value in explaining the context of the relationship between the accused and the victim and was in the interests of justice’.⁸⁵

As the section 34L(1)(b) application was successful, the victim was cross-examined as to whether she and the accused had had sex previously, whether she had flirted with the accused in the past and whether she had worked as a sex worker, all of which she denied.⁸⁶ The accused gave evidence of a sexual encounter with the victim three years prior when they were both under the influence of methamphetamine.⁸⁷ He said he knew the victim was working as a sex worker at that time as she would wear ‘skimpy outfits’, he would drive her to jobs, and she was living in a hotel.⁸⁸ The accused’s evidence was that the alleged rape occurred in similar circumstances in that both parties were under the influence of drugs, the victim was wearing her ‘work outfit’, and he believed that she was still working as a sex worker.⁸⁹

Overall, Deuter J accepted the accused’s account as convincing.⁹⁰ Namely, Her Honour thought it was ‘completely plausible’ that the victim had worked as a sex worker, despite her denials.⁹¹ Given there was no allegation that the sexual encounter between the accused and victim occurred during her employment as a sex worker, it is unclear how this is relevant to the issue of present consent other than to suggest a propensity to engage in sex or to judge the accused’s culpability as less serious given her perceived sexual promiscuity.⁹² The danger of allowing evidence that a victim has or is engaged in sex work when it is not relevant to a fact in issue is that it enables finders of fact to make inferences about the sexual morality of a victim. This is not only at odds with the purpose of the rape shield provisions but contributes to the expectation that victims must act in sexually moral ways to be believed. Further, the reasoning of Deuter J in allowing the victim to be cross-examined about her prior sexual activities is problematic as it denies women sexual autonomy to have sex as and how they please, erroneously assuming that all prior intercourse between the accused and the victim was consensual and ignores that each sexual encounter requires fresh consent.⁹³ Instead it invites finders of fact to use evidence of a woman’s sexual history and, by implication, her sexual reputation as tantamount to ongoing consent.

While the cases discussed demonstrate how defence counsel may use sexual history evidence to invite finders of fact to imply ongoing consent from a pattern of typical sexual behaviour, the prosecution may likewise use such evidence to distinguish the alleged rape from the victim’s ‘usual’ sexual practice to support their allegations of non-consent. This is problematic because it reinforces the utility of the defence strategy to suggest that it is reasonable for an accused to presume consent is ongoing where the sexual encounter follows the pattern of the parties’ usual sexual encounters. Likewise, it allows the prosecution to frame the victim as respectable and not the ‘type of woman’ who would have consented to act in ‘sexually deviant ways’. This consequentially reinforces myths that promiscuous women may be assumed to consent to certain sexual activities.⁹⁴

The case of R v Brady⁹⁵ is an example of this prosecutorial strategy. In this case, the accused gave evidence of previous sexual encounters between himself and the victim, including oral and anal sex and the insertion of sexual implements, which he said were the same as the types of activities which occurred over the weekend of the charged acts.⁹⁶ In contrast, the victim sought to distance herself from someone who engaged in that ‘type’ of sex. Her evidence was that she and the accused had only had sex in the missionary position previously and had not engaged in oral sex.⁹⁷ She also denied owning sex toys.⁹⁸ While the trial judge accepted the victim’s evidence, whether she had previously engaged in certain activities with the accused should be immaterial as to whether she consented on the occasion alleged. To suggest otherwise negates a person’s right to exercise their autonomy and engage in different sexual acts when and if they want.

While R v Brady was the only case in the dataset where the prosecution explicitly used this strategy, it is significant to note that in most cases the prosecution focused on denying the victim’s sexual attraction or flirtation. For example, in R v Green the prosecution submitted that the victim’s evidence was consistent with her version of events that she was not interested in the accused, while in R v De Wilde the prosecution submitted that the victim had no sexual interest in the accused.⁹⁹ In this respect, the prosecution did not directly challenge the myths that women who exert sexual agency are more likely to consent, rather their denial diminished victims’ credibility when faced with contradictory social media evidence.¹⁰⁰

It is interesting that it was the prosecution in R v Esposito who made the application pursuant to s34L of the Evidence Act, seemingly to support their version of events that the victim did not want to continue a sexual relationship with the accused and that it was the accused who was repeatedly (but unsuccessfully) pursuing her for sex.¹⁰¹ Notwithstanding the potential utility of this enquiry, by admitting evidence of a victim past sexual history with an accused, it suggests that consent can be determined according to a victim’s prior actions and not according to what she says or does at the time in question. The prosecution’s line of questioning in R v Esposito intended to suggest that because the victim had not responded to the accused’s requests for sex two months prior¹⁰² this was relevant to her non-consent to the alleged rape. As such, if the victim had indicated her interest, which was what defence counsel argued her social media messages implied,¹⁰³ the prosecution’s reasoning suggests that this may have been relevant not only to the likelihood that she consented but also to the accused’s belief in consent. As discussed below, this is the inference that Tracey J made.¹⁰⁴

3.3. Belief in consent

Sexual history evidence may further be admissible if it is considered relevant to an accused’s belief in consent. This section examines how an accused may, therefore, rely upon myths regarding female sexual behaviour to support their belief in consent. For example, in the case of R v Moores, evidence of consensual sex between the victim and accused immediately prior to two counts of alleged rape was admitted as relevant to the accused’s state of mind.¹⁰⁵ In this case, it was not disputed that the victim and accused had had consensual vaginal intercourse.¹⁰⁶ Shortly thereafter, the accused allegedly had oral and anal intercourse with the victim without her consent (counts 1 and 2).¹⁰⁷ The accused was acquitted of these two counts at trial but was found guilty of one count of rape and one count of causing harm which occurred the following morning (counts 3 and 4).¹⁰⁸ The accused appealed his conviction on the basis that the guilty verdicts were inconsistent with the not guilty verdicts.¹⁰⁹

Blue J (with Vanstone and Doyle JJ concurring) held that the verdicts were not inconsistent as it was open for the jury to accept the totality of the victim’s evidence (that she did not consent to counts 1–4) but to entertain reasonable doubt as to whether the accused knew she was not consenting to counts 1 and 2, given she ‘had already consented to vaginal sexual intercourse’ that evening and had not verbally communicated her subsequent lack of consent to counts 1 and 2.¹¹⁰ This reasoning is tantamount to suggesting that having consented to one type of sexual act, a woman can be assumed thereafter to consent to all subsequent sexual acts, the terms of which she is unaware. This denies women sexual autonomy and deprives them of the right to choose the terms on which they have sex.

The admission of previous consensual sexual encounters with an accused as relevant to his state of mind was also relied upon by the defence in R v Esposito. In this case, defence counsel submitted that ‘the prior relationship between [the victim] and the accused supported that what happened was consensual and certainly consensual in the accused’s mind’.¹¹¹ Tracey J accepted that the previous sexual encounter between the victim and accused, their flirtatious messaging, which was in part initiated by the victim, and their consensual kiss before the alleged rape were all relevant to the accused’s state of mind.¹¹² That is, Tracey J thought it was reasonable for the victim’s prior sexual behaviour to inform the accused’s belief in consent, not only undermining the legislative intention that consent be free and voluntary but placing the onus on women to monitor their sexual expression and desires, lest accused persons manipulate it as synonymous to consent.¹¹³

Even where the victim makes their lack of consent known to the accused, evidence of the ‘usual’ sexual relationship between them may be relevant to the accused’s state of mind. For example, in R v Tennant, Davison J was satisfied beyond reasonable doubt that the accused knew the victim was not consenting due to his violence¹¹⁴ and her resistance.¹¹⁵ However, Her Honour noted that his knowledge could be further imputed as this was not a case where ‘conduct of this type was a part of the usual sexual contact between them’.¹¹⁶ This statement suggests that if the victim and accused had engaged in rough or violent sex on prior occasions, this could be relevant to the accused’s state of mind and thereby reasonable for him to infer consent based on her previous sexual behaviours, notwithstanding her lack of consent to the specific act of intercourse complained of.

Evidence of a victim’s prior sexual encounter with someone other than the accused has also been found to be relevant to an accused’s mental state. In the case of R v De Wilde, for example, Tracey J allowed an application by defence counsel to question the victim regarding her previous sexual activity with a person other than the accused because it was substantially probative to the accused’s belief in consent.¹¹⁷ The victim, in this case, was allowed to be questioned about an earlier sexual encounter with the accused’s friend.¹¹⁸ The accused relied upon this to argue a belief in consent on the basis, inter alia, that ‘he knew she had on a past occasion had a casual sexual liaison with a person she had just met’ and thought that ‘she might still be interested in such a “set-up”’.¹¹⁹ Thus, he was able to rely upon the victim’s past sexual activity with someone else to make inferences as to her sexual proclivity, and Her Honour allowed this as probative of a belief in consent.¹²⁰

Firstly, such evidence should be inadmissible under the sexual reputation prohibition in section 34L(1)(a) of the Evidence Act because it implies that the victim has a reputation for engaging in casual sex. This again highlights the redundancy of the sexual reputation prohibition if such evidence is nevertheless admissible under section 34L(1)(b). Secondly, it again obfuscates a woman’s sexual agency to decide with whom and when she wants to have sex. Instead, it reinforces the myth that if a woman has participated in a specific type of sexual activity, then it is reasonable to assume that she would consent to a similar sexual activity again with any person.¹²¹

The following section explores futher how defence counsel may use evidence of prior flirtatious communications to create narratives of victims as empowered sexual agents, their actions either implying consent or relevant to an accused’s belief in consent. It further examines the dilemma in which twenty-first century women find themselves, in that rape laws are framed around the liberal concept of consent and free choice. However, if a woman exercises her choice to engage in sexualised behaviour, she is considered at least somewhat responsible for the consequences of that choice and, thereby not vulnerable to rape.¹²² The problem, of course, is that granting women the right to choose the sexual encounters they wish to consent to and ensuring that their choice is respected are not the same.¹²³ Until the legal system acknowledges the structural realities that constrain women’s abilities to make truly empowered choices, women’s sexual behaviour will continue to be monitored to ensure the law only protects victims it deems ‘morally worthy’.¹²⁴ This is expanded on below.

4. Sexual agency and narratives of implied consent

As the sexual double standard privileges male sexual assertiveness while punishing the same overt expressions of female sexuality, it is assumed that women will instead indicate their sexual willingness through more subtle cues such as flirting¹²⁵ or, as the accused in R v De Wilde put it, by giving ‘off a vibe’ of sexual interest.¹²⁶ While Chivell J in R v Green conceded that flirtation ‘does not imply consent to sexual activity’, he noted that it was not ‘inimical to it’ either, suggesting that a woman’s flirtatious behaviour could be indicative at law that sexual activity will eventuate.¹²⁷ An analysis of the case law reveals both defence counsel and the judiciary rely upon and endorse narratives of implied consent based upon, for example, flirtation. In discussing these cases, the following section focuses on how the construction of narratives of implied consent distorts female sexual agency and conceals vulnerability to rape, thereby denying women the ability to make genuinely empowered sexual choices.

The case of R v Cleland¹²⁸ is an example whereby defence counsel successfully constructed a narrative of an implied willingness to engage in sexual conduct based on the victim’s conduct and behaviour. In this case, the victim was cross-examined on her relationship history, whether she was interested in finding a new boyfriend, whether she drank alcohol to loosen her inhibitions to socialise, whether she was attracted to the accused, whether she went with him to a secluded location to make her ex-boyfriend jealous and whether she changed into new underwear before or after she met the accused.¹²⁹ These questions all cumulated to build a narrative that the victim’s intention that night was to engage in sexual activity. This narrative was further bolstered by the accused’s evidence that the victim did not resist or say anything to suggest she was not consenting.¹³⁰ Griffin J found that the sexual activity ‘was done with [the victim’s] implied consent’.¹³¹ The implication from His Honour’s reasoning is that the victim’s behaviour indicated her sexual interest to the accused, and her failure to confirm otherwise was sufficient for him to believe that she was consenting.¹³² The onus, therefore, is on the victim to monitor her behaviour so as not to give off a ‘vibe’ of sexual availability or to make her resistance clear.

The reasoning of Griffin J in R v Cleland assumes that if women have sexual agency and ‘choose’ to act in a sexual manner, inverting the traditional paradigm of heterosexual sexual encounters, then they also have the choice, much like men, to reject unwanted sexual encounters and ‘just say no’.¹³³ When the victim did not ‘exercise’ this choice and make her lack of consent clear, Griffin J thought consent may nonetheless be implied from her behaviour. This presumes that everyone is primed with the ability to make unencumbered choices such that if a woman has agency to make choices regarding her sexual expression, she has the equal ability to set the terms of any sexual encounter and is therefore not vulnerable to rape.¹³⁴ Thus, vulnerability and agency are conceptualised in opposition to one another, with the presence of one assuming the absence of the other.¹³⁵ This binary framing, however, obscures the reality that a woman may have sexual agency or be promiscuous but may also be vulnerable to sexual violence by virtue of being a woman in a patriarchal society.¹³⁶

The case of R v De Wilde provides a further example whereby the focus on the victim’s sexual behaviour as indicative of consent meant that her vulnerability to sexual violence went unnoticed. In this case, defence counsel focused their cross-examination on the victim’s actions in agreeing to meet with the accused, the frequency and nature of their social media communications, her supposed disharmonious relationship with her boyfriend, and the accused’s knowledge of her prior engagement in casual sex.¹³⁷ The accused argued these factors were demonstrative of her sexual interest in him and, consequently, his belief in consent.¹³⁸ While Tracey J noted that what had occurred between the victim and accused before the incident ‘[did] not of course equate to [her] having consented to the charged sexual acts’,¹³⁹ she accepted that the victim’s initiation of social media contact, the tone and content of those messages, her eagerness at responding, and her agreement to a date ‘would no doubt, have given the accused some support in his belief that she was interested in him and potentially as more than friends’.¹⁴⁰

Again, the victim in this case, through her overt demonstration of interest in the accused and by agreeing to a date, is positioned as the sexual instigator.¹⁴¹ By allowing victims to be cross-examined about their prior communications or sexual interest in an accused, assumptions may be defaulted to regarding the unfettered nature of their sexual agency. For example, Tracey J’s findings that she could not ‘be satisfied that [the victim] gave any physical or verbal sign to the accused that she was not a willing participant in any sexual activity’¹⁴² assumes that because the victim had chosen to flirt and go on a date with the accused, then she likewise had the choice to prevent any sexual encounter through her resistance. This again ignores the coercive dimensions of heteronormative sex, which can constrain a woman’s ability to make autonomous sexual choices or resist unwanted sexual advances.¹⁴³ That is, women are not always able to ‘just do what [they] wanted’, as the defence counsel asked of the victim, and resist.¹⁴⁴ Further, it fails to appreciate that the ability to do what one wants does not automatically mean one’s choice will be respected by the accused or the judicial system.

The case of R v Dobbs further highlights how a victim’s prior sexual behaviour can be used as evidence of their sexual agency while their vulnerability to sexual violence is ignored. In this case, the victim had no memory of the alleged rape, as she was asleep and intoxicated. Rather, the evidence rested on the eyewitness account of a person in bed with the accused and victim.¹⁴⁵ The victim was repeatedly questioned about prior times she had shared a bed with the accused and whether sexual touching had occurred on these occasions.¹⁴⁶ In particular, she was cross-examined about whether she had initiated sexual touching with the accused the first time they met.¹⁴⁷ She conceded that if she had, her actions would have suggested to him her sexual interest.¹⁴⁸ Further, her evidence was that on 3 or 4 other occasions when she had shared a bed with the accused, he had touched her in a sexual way without her consent.¹⁴⁹ Defence counsel asked the victim why she continued to sleep in a bed with the accused after unwanted sexual touching, and it was put to her that because she continued to sleep in bed with him, the touching did not occur.¹⁵⁰

The victim in R v Dobbs was also asked about her sexual attraction to the accused, whether she indicated her interest in him in their communications and whether she had sent him a sexually explicit Snapchat.¹⁵¹ Defence counsel used this questioning to build a picture of someone who was not sexually naive. Instead, evidence of her sexually suggestive messages was used to imply that she was a sexual agent and, therefore, unable to claim vulnerability ex post facto. Further, by agreeing to sleep in the same bed as the accused on multiple occasions, particularly when he had engaged in unwanted sexual touching, the victim was positioned as consciously exposing herself to risk and, therefore, not vulnerable to rape. This was also seen in the defence counsel’s questions concerning the victim’s demeanour, particularly whether she would ‘let people push her around’.¹⁵² The victim agreed she was ‘fairly direct and assertive’ and would ‘let people know how she felt’.¹⁵³ Again, these questions suggest that the victim was not demure or vulnerable and that if a rape had occurred, she would have forcefully made this known to the accused (despite being intoxicated and asleep).¹⁵⁴ Thus, the victim was blamed for putting herself in a position whereby it was reasonable for an accused to assume she was sexually available to him.¹⁵⁵

In the case of R v Esposito, the defence counsel used the same strategy as in Dobbs. The victim was asked numerous times why, given the alleged sexual nature of their relationship, she had allowed the accused to follow her to the bathroom.¹⁵⁶ The defence cross-examination went as follows:

Counsel:

So I just want to explore what was in your mind when [the accused] said he will take you to the toilets. This was a person you’d had sex with before, a couple of months earlier, you agree with that.

Victim:

Yes.

Counsel:

On your story he was a person who was continuing to have sex with you, by messages on Snapchat.

Victim:

Yes.

 … .

 

Counsel:

With all that in your head, you knew didn’t you that he might want to have sex with you in the toilets.

Victim:

I figured that if I’d said no he would take that answer.

 … 

 

Counsel:

Why did you go with him at all.¹⁵⁷

The insinuation from these questions is that the victim, in exercising her sexual agency by sending sexual messages, placed herself in a position where she led the accused to believe that sex was a possibility and, therefore, must bear responsibility for the consequences. The victim is blamed not only for letting the accused follow her to the bathroom but also for acting in sexually explicit ways, all of which created the impression to the accused that she was sexually available. Thus, her behaviour is distinguishable from the stereotype of an ‘ideal’ victim who ‘appreciates the risk of rape and takes all sensible and logical precautions to avoid creating the opportunity for such an attack’.¹⁵⁸ Rather, like the victims in R v Dobbs and R v Cleland, the victim is blamed for exposing herself to the risk of sexual activity through her behaviour.

The above cases demonstrate how expectations that women must monitor their behaviour to avoid rape are deployed by counsel and endorsed by the judiciary. This reinforces the myth that if a woman exerts agency in choosing ‘risky’ behaviour, she is responsible for the consequences, belaying the sexual vulnerability of women under patriarchy. Increased freedom, thereby remaining a double-edged sword for women in the prosecution of sexual violence.

5. Conclusion

While the loosening of sexual morals in Australia has seen the strict control of female sexuality dissolving, arguably, the ‘project of freeing women to express their heterosexuality never really began’.¹⁵⁹ While rape shield laws aim to protect women from punishment for engaging in prior sexual activity, the prosecution of rape does not operate within a cultural vacuum but rather serves to reflect and maintain patriarchal power.¹⁶⁰ Thus, while counsel may no longer be able to make submissions regarding a victim’s reputation for promiscuity, in reality, judicial allowance of evidence of a woman’s sexual history and questions regarding a victim’s attraction to or flirting with an accused allows finders of fact to nonetheless draw inferences between her previous sexual behaviour and the likelihood that she consented. This has implications for justice and the outcomes for victims in rape trials, as it discourages victims from reporting and prosecuting rape,¹⁶¹ places victims on trial, and can contribute to their secondary victimisation.¹⁶²

Furthermore, the focus on sexual behaviour of victims with no temporal connection to the facts in issue assumes sexual violence is the consequence of a victim’s perceived choices, rendering ‘forces outside individual responsibility obsolete’.¹⁶³ This ensures the blame remains on victims for not actively resisting or ‘leading’ an accused on through their flirting or sexting. Thus, the collision of the neoliberal tenants of individual responsibility and agency with the sexual double standard mean that when a woman’s exercise of agency results in negative consequences, it is the woman who is deemed culpable and the systemic nature of sexual violence against all women is ignored.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This research has been supported by funding from an Australian Government Research Training Program Scholarship.

Notes on contributors

Jessica Schaffer

Jessica Schaffer is a PhD student at Bond University. Her PhD is entitled ‘The Excuse of Mistaken Belief in Australian Rape Law’. She has a Bachelor of Laws and a Bachelor of Arts from the University of Queensland and a LLM in Public International Law from Leiden University in the Netherlands. She is admitted to practice law in Queensland.

Notes

1 This article uses female pronouns when referring to victims and masculine pronouns when referring to accused persons. This is not to deny that men can be victims of rape or that women can be perpetrators, nor to perpetuate myths of female victimisation and male aggression. Rather, it is to properly reflect the fact that women are far more likely to be victims of sexual assault (84% of reported sexual assaults in Australia (2022) and that most rapists are men (93% of reported sexual assaults in Australia (2021–22). See Australian Bureau of Statistics, ‘Recorded Crime – Victims, 2022’ <https://www.abs.gov.au/statistics/people/crime-and-justice/recorded-crime-victims/2022>; Australian Bureau of Statistics, ‘Recorded Crime – Offenders, 2021–22’ <https://www.abs.gov.au/statistics/people/crime-and-justice/recorded-crime-offenders/2021-22#data-downloads>.

2 Daly and Bouhours (2010), pp 576–578; Kennedy et al (2012), p 336.

3 The term victim is used to reflect the fact that people generally do not lie about being raped and even when a court finds an accused not criminally responsible the victim still experiences victimisation. Studies estimate approximately 2–10 percent of sexual crime allegations are false: Lisak et al (2010); Wall and Tarczon (2013).

4 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 75–76; Criminal Procedure Act 1986 (NSW) s 294CB; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4; Criminal Law (Sexual Offences) Act 1978 (Qld) s 4; Evidence Act 1929 (SA) s 34L; Evidence Act 2001 (Tas) s 194M; Criminal Procedure Act 2009 (Vic) ss 341–342, s 352; Evidence Act 1906 (WA) ss 36B-36BC.

5 See e.g. Coumarelos et al (2023). For a definition of rape myths see Gerger et al (2007), p 423.

6 Burt (1980), pp 210–217; Torrey (1991), p 1025; Stewart et al (1996), pp 160–161; Ellison and Munro (2009), p 304; Ryan (2011), p 775; Burrowes (2013), p 6; Dufraimont (2019), pp 332–333; Gunby et al (2013), pp 95–99; Coumarelos et al (2023), pp 171–173.

7 Stewart et al (1996), p 161.

8 Thompson et al (2020). See also Penhollow et al (2017).

9 See Penhollow et al (2017), p 93.

10 Comack and Peter (2005), p 308; Gotell (2002), p 258.

11 Hall and Wright (2008), p 64; Brook (2022), pp 120–121. See also Finfgeld-Connet (2014).

12 Hall and Wright (2008), pp 66, 88.

13 Hawkins (2018), p 2; Nowell et al (2017), p 2.

14 Estrich (1986), p 1122; Dripps (1992), pp 1780–1781; Coughlin (1998), pp 1–5; Stevenson (2000), p 347; McGregor (2005), p 27.

15 Brownmiller (1975), p 376; MacKinnon (1989), p 175; Coughlin (1998), p 5.

16 Griffin (1971), p 32; Brownmiller (1975), p 377; Clark (1987), p 24; Chamallas (1988), pp 789–790; Stevenson (2000), p 354.

17 Griffin (1971), p 30; Brownmiller (1975), p 17; Toner (1977), p 86; Anderson (2002), pp 61–64.

18 Griffin (1971), p 30; Estrich (1986), p 1127; Anderson (2002), p 53. The marital immunity was abolished by statute in South Australia in 1976.

19 Clark (1987), p 44; Brundage (1987), p 64; Henderson (1992), p 135; Coughlin (1998), p 8.

20 Griffin (1971), p 30; Stevenson (2000), pp 354. See Fisher and Ammett (1992), p 686.

21 Brundage (1987), p 64; Dripps (1992), p 1781; Henderson (1992), p 135; Coughlin (1998), p 8.

22 Griffin (1971), p 32; Pateman (1980), p 158; Estrich (1986), p 1986; Dripps (1992), p 1781; Coughlin (1998), p 6.

23 Chamallas (1988), pp 788–789; Dripps (1992), pp 1780–1781. Cf Coughlin (1998), p 10.

24 Clark (1987), p 27; Chamallas (1988), pp 788–789; MacKinnon (1989), p 175.

25 Griffin (1971), p 30; Pateman (1980), p 158; Chamallas (1988), pp 788–789; Pineau (1989), p 226; Brown (1992), p 9; Lonsway and Fitzgerald (1994), p 136; Stewart et al (1996), p 161; Stevenson (2000), pp 360, 365; Abrams et al (2003), pp 112–113; Tuerkheimer (2012), p 1477. See also Anderson (2002), pp 60–61.

26 Odgers (1986), pp 74–75; Mason (1995), p 51.

27 Henning and Bronitt (1998), p 78 discussing Clarke (1817) 2 Stark 241.

28 Mason (1995), pp 54–55; Henning and Bronitt (1998), p 77. See also Stevenson (2000), p 360; Anderson (2002), pp 52–53; Tuerkheimer (2012), p 1470; Dufraimont (2019), p 334.

29 Odgers (1986), pp 74–75; Henning and Bronitt (1998), pp 78–79. See also Anderson (2002), p 54; Tuerkheimer (2012), pp 1462, 1470.

30 Torrey (1991), p 1014; Anderson (2002), p 56; Cossins (2020), pp 178–179.

31 Crawford and Popp (2003), p 14; Anderson (2002), p 143; Burkett and Hamilton (2012), p 816.

32 See n 4; Bronitt and Easteal (2018), p 17.

33 See e.g. Muehlenhard and McCoy (1991); Crawford and Popp (2003); Bay-Cheng and Eliseo-Arras (2008); Farvid et al (2017); Woerner and Abbey (2017); Thompson et al (2020); Wesson (2022).

34 Crawford and Popp (2003), p 22; Bordini and Sperb (2013), p 702.

35 Crawford and Popp (2003), p 23; Farvid et al (2016), p 545; Woerner and Abbey (2017), p 724; Penhollow et al (2017), p 92.

36 Woerner and Abbey (2017), p 718; Thompson et al (2020), p 1; Wesson (2022), p 1321.

37 Crawford and Popp (2003), p 23; Lyons and Willott (2008), p 705; Grubb and Turner (2012), p 447. See Coumarelos et al (2023), p 173. e.g. 7% of respondents agreed that meeting up with a man from a dating app renders a woman partly responsible for her assault.

38 Gotell (2008), pp 877–876, 880. See e.g. 21% of respondents in the 2021 National Community Attitudes towards Violence Against Women Survey, thought a woman who sends her partner a naked image is partly responsible if he shares it without consent. Likewise, around 1 in 10 respondents thought forced sex was justified when the woman had initiated intimacy: Coumarelos et al (2023), pp 142, 144.

39 Comack and Peter (2005), p 298; Drakopoulou (2007), p 10. See discussion on agency and choice in Rutherford (2018), pp 626–628.

40 Burkett and Hamilton (2012), pp 817–818.

41 Evidence Act Amendment Act 1976 (SA).

42 Evidence Act 1929 (SA) s 34L(1)(a).

43 Evidence Act 1929 (SA) s 34L(1)(b).

44 Evidence Act 1929 (SA) s 34L(1)(b) and (2).

45 R v AP [2022] SADC 136 at 33.

46 Evidence Act 1929 (SA) s 34L(2). See Henning and Bronitt (1998), pp 84–85.

47 Evidence Act 1929 (SA) s 34L(3).

48 Henning and Bronitt (1998), pp 84–85; Burman (2009), pp 385–386; Carline and Easteal (2014), pp 191–192, 196.

49 For similar findings see Kennedy et al (2012), pp 337–338; Burgin and Flynn (2021), pp 345–350. See also Cossins (2020), pp 415–417; McDonald (2014), pp 493–494.

50 McGlynn (2017), pp 371–373.

51 Barton v The Queen (1980) 147 CLR 75 at 101 (Gibbs ACJ and Mason J), quoted in Dietrich v The Queen (1992) 177 CLR 292 at 335 (Deane J); Jago v District Court of New South Wales (1989) 168 CLR 23 at 50, 54 (Brennan J). See comments in R v A (No 2) [2002] 1 AC 45 at 38 (Lord Steyn).

52 Spigelman (2004), pp 44–45. See also DPP (Nauru) v Fowler (1984) 154 CLR 627 at 630.

53 R v A (No 2) [2002] 1 AC 45 at 91–92, 94 (Lord Hope). See also McGlynn (2017), p 373.

54 Law Commission (2023), p 27.

55 See e.g. Law Commission (2023) Ch 4.

56 See McGlynn (2017), p 329 for similar conclusions in the UK context.

57 Evidence Act 1929 (SA) s 34L(2)(b).

58 See Pateman (1980), p 158; Henning and Bronitt (1998), p 89; Edwards et al (2011), pp 767–768.

59 Law Commission (2023), p 144. See discussion of a mock-jury study in Anderson (2002), p 129.

60 R v Esposito [2023] SADC 64.

61 R v Esposito [2023] SADC 64 at 24–5, 30–32.

62 R v Esposito [2023] SADC 64 at 24–5, 30–32.

63 R v Esposito [2023] SADC 64 at 104.

64 See also Burgin and Flynn (2021), pp 342–343.

65 See Pineau (1989), p 230.

66 R v Dobbs [2022] SADC 53.

67 R v Dobbs [2022] SADC 53 at 164.

68 R v Dobbs [2022] SADC 53 at 55, 70, 183–184.

69 R v Dobbs [2022] SADC 53 at 164.

70 R v Dobbs [2022] SADC 53 at 182–185.

71 R v Green [2016] SADC 29 at 21–22.

72 R v Green [2016] SADC 29 at 24–25, 28.

73 R v De Wilde [2022] SADC 116 at 169.

74 R v De Wilde [2022] SADC 116 at 169.

75 R v De Wilde [2022] SADC 116 at 169.

76 See e.g. Jordan (2004), p 51.

77 See Henderson (1992), p 140; Abrams et al (2003), p 113.

78 Dufraimont (2019), p 332.

79 Evidence Act 1929 (SA) s 34L(2)(a).

80 Carline and Easteal (2014), p 191.

81 R v L OS [2021] SADC 125.

82 R v L OS [2021] SADC 125 at 29.

83 R v L OS [2021] SADC 125 at 32.

84 R v L OS [2021] SADC 125 at 37.

85 R v L OS [2021] SADC 125 at 38.

86 R v L OS [2021] SADC 125 at 64.

87 R v L OS [2021] SADC 125 at 131–132.

88 R v L OS [2021] SADC 125 at 131.

89 R v L OS [2021] SADC 125 at 135, 142.

90 R v L OS [2021] SADC 125 at 221, 234.

91 R v L OS [2021] SADC 125 at 229.

92 Fisher and Ammett (1992), p 686.

93 Henning and Bronitt (1998), p 79; Anderson (2002), p 60; Carline and Easteal (2014), p 190; Burgin and Flynn (2021), p 349.

94 Cf Powell et al (2013), p 467.

95 R v Brady [2014] SASCFC 7.

96 R v Brady [2014] SASCFC 7 at 22.

97 R v Brady [2014] SASCFC 7 at 15, 28.

98 R v Brady [2014] SASCFC 7 at 33.

99 E.g. R v Green [2016] SADC 29 at 20; R v De Wilde [2022] SADC 116 at 143.

100 See discussion in 3.1.

101 R v Esposito [2023] SADC 64 at 24 (see fn 12) and 25.

102 R v Esposito [2023] SADC 64 at 25.

103 In cross-examination the victim initially denied sending a photograph to the accused on Instagram initiating a sexual encounter, however, she was presented with a copy of the message and agreed that she could have sent it. Likewise, she agreed that she could have sent the accused nude photographs or videos of herself on Snapchat: R v Esposito [2023] SADC 64 at 30–32.

104 R v Esposito [2023] SADC 64 at 109.

105 R v Moores [2017] SASCFC 95 at 193.

106 R v Moores [2017] SASCFC 95 at 13.

107 R v Moores [2017] SASCFC 95 at 15–16.

108 R v Moores [2017] SASCFC 95 at 18.

109 R v Moores [2017] SASCFC 95 at 191.

110 R v Moores [2017] SASCFC 95 at 194. See Schaffer (2023), pp 623–624 for a discussion of this case with respect to myths of resistance as relevant to an accused's belief in consent.

111 R v Esposito [2023] SADC 64 at 98.

112 R v Esposito [2023] SADC 64 at 109. See Schaffer (2023), pp 618, 626 for a discussion of this case with respect to myths of resistance as relevant to an accused's belief in consent.

113 See Ellison and Munro (2009), pp 296–297; Gunby et al (2013), p 101.

114 R v Tennant [2021] SADC 95 at 83, 85, 86.

115 R v Tennant [2021] SADC 95 at 83, 85, 86.

116 R v Tennant [2021] SADC 95 at 89.

117 R v De Wilde [2022] SADC 116 at 70 see fn 79.

118 R v De Wilde [2022] SADC 116 at [70].

119 R v De Wilde [2022] SADC 116 at 119, 154.

120 R v De Wilde [2022] SADC 116 at 169–170.

121 See Finch and Munro (2004), p 36.

122 See e.g. Randall (2010), p 409.

123 Rutherford (2018), p 623.

124 Pateman (1980), pp 162–163; Estrich (1986), p 1127.

125 Muehlenhard and McCoy (1991), p 459; Ellison and Munro (2009), pp 295–296; Gravelin et al (2019), p 2435; Kettrey et al (2021), p 2.

126 R v De Wilde [2022] SADC 116 at 121, 127. For a definition of implied consent see Burgin and Flynn (2021), p 338.

127 R v Green [2016] SADC 29 at 25. For further examples see Powell et al (2013), p 467; Burgin and Flynn (2021), pp 339–345.

128 R v Cleland [2012] SADC 42.

129 R v Cleland [2012] SADC 42 at 28, 32.

130 R v Cleland [2012] SADC 42 at 79. See Schaffer (2023), pp 626–629.

131 R v Cleland [2012] SADC 42 at 93.

132 R v Cleland [2012] SADC 42 at 78–79.

133 See e.g. Gotell (2008).

134 Pateman (1980), pp 162–163; Henderson (1992), p 143.

135 Mardorossian (2014), p 32. See also Bay-Cheng and Eliseo-Arras 2008), p 395.

136 Pateman (1980), pp 162–163; MacKinnon (1989), pp 168–170; Naffine (1992), p 764; Kasplew (1995), p 355; Mardorossian (2014), pp 35. See Gavey (2019), pp 129–135.

137 R v De Wilde [2022] SADC 116 at 64, 66, 70–71, 75–77.

138 R v De Wilde [2022] SADC 116 at 154.

139 R v De Wilde [2022] SADC 116 at 170.

140 R v De Wilde [2022] SADC 116 at 169.

141 R v De Wilde [2022] SADC 116 at 155–156, 169.

142 R v De Wilde [2022] SADC 116 at 171.

143 Chamallas (1988), p 783; MacKinnon (1989), pp 174–183; Pineau (1989), pp 222–224; Powell et al (2013), pp 459–460; Cossins (2019), p 471. See also Basile (1999); Gavey (2019) Ch 4.

144 R v De Wilde [2022] SADC 116 at 157. For an explanation of the freeze response see Moor et al (2013).

145 R v Dobbs [2022] SADC 53 at 3.

146 R v Dobbs [2022] SADC 53 at 35–38.

147 R v Dobbs [2022] SADC 53 at 49–50.

148 R v Dobbs [2022] SADC 53 at 55.

149 R v Dobbs [2022] SADC 53 at 35, 37–38.

150 R v Dobbs [2022] SADC 53 at 60, 64, 164.

151 R v Dobbs [2022] SADC 53 at 20, 76, 164.

152 R v Dobbs [2022] SADC 53 at 61.

153 R v Dobbs [2022] SADC 53 at 61.

154 See Gotell (2008), p 880.

155 See Estrich (1992), p 10.

156 R v Esposito [2023] SADC 64 at 45.

157 R v Esposito [2023] SADC 64 at 45.

158 Larcombe (2002), p 134; Randall (2010), p 409. See also Gotell (2008), pp 866–867.

159 Henderson (1992), p 140.

160 Brownmiller (1975), pp 17–18; MacKinnon (1989), pp 238–239; Torrey (1991), p 1060.

161 McGlynn (2017), p 373. For a discussion of the sexual violence justice gap see Horan (2021).

162 Torrey (1991), p 1030; Coughlin (1998), p 16; Campbell et al (2001), pp 1240–1241; Bluett-Boyd and Fileborn (2014), p 12.

163 Burkett and Hamilton (2012), p 829.