Getting Consent ‘Right’: Sexual Assault Law Reform in New South Wales

Abstract

For the purposes of rape/sexual assault, the preferred approach for pursuing modernisation in Australia has been to legislate a positive definition of consent as ‘free and voluntary agreement’. The absence of consent in this form has become the primary touchstone for the crime. And yet, despite multiple waves of progressive legislative reform, too few victims of sexual violence find justice in the criminal courts. This article questions whether prevailing statutory models of consent definition may be more problem than solution. Drawing on the work of Pateman and Gatens in particular, I argue that while the repetition of the words ‘free and voluntary agreement’ make it a familiar and reassuring formula, its meaning is neither self-evident nor self-executing. It is possible that the definition opens a ‘gap’ between what is intended by the phrase and how it is filled in practice by the ‘common knowledges’ (Mariana Valverde, Law's Dream of a Common Knowledge (Princeton University Press, 2003)) of rape myths. Myth as ‘misunderstanding’ may be capable of legislative correction, but legislative correction of myth, understood as an excess of signification (Roland Barthes, Mythologies trans A Lavers (Jonathan Cape, 1972)), is elusive. The article also suggests that the practice of legislative correction may be flawed to the extent that it relies on naming and marking the limit of what consent is not – via categories of (exceptional) circumstance and vulnerability.

Notes

1 For details, see David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter, Melanie Schwartz, Thalia Anthony and Arlie Loughman, Criminal Laws: Materials and commentary on Criminal Law and Process of NSW (Federation Press, 7th ed, 2020) ch 8.

2 Julia Quilter, ‘Re-framing the rape trial: Insights from critical theory about the limitations of legislative reform’ (2011) 35 Australian Feminist Law Journal 23.

3 The term ‘complainant’ is used in this article because the focus is on sexual assault cases and this is the terminology used in criminal trial proceedings. It is acknowledged that there is significant debate about what is the most appropriate terminology to be used, for example, ‘people who have experienced sexual assault’, ‘victim’ or ‘survivor’: see Rape & Domestic Violence Services Australia, Submission to NSWLRC: Consent in relation to sexual offences – Draft Proposals (Nov 2019) at [2.2].

4 Although the term ‘rape’ is still used in a number of jurisdictions, in NSW, it has been replaced by the phrase ‘sexual assault’.

5 Lazarus was convicted by a jury in 2015 (R v Lazarus (Unreported, NSWDC, Huggett DCJ, 9 February 2015), but the conviction was overturned on appeal (Lazarus v R [2016] NSWCCA 52) and a retrial ordered. At the second judge-alone trial, Lazarus was acquitted (R v Lazarus (Unreported, NSWDC, Tupman DCJ, 4 May 2017). On a Crown appeal (pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW)) the NSWCCA found that although the trial judge had erred, in the ‘interests of justice’ no further trial would be ordered, leaving Lazarus’ acquittal to stand (R v Lazarus [2017] NSWCCA 279). For commentary on this series of cases see in particular James Monaghan and Gail Mason, ‘Communicative consent in New South Wales: Considering Lazarus v R’ (2018) 43(2) Alt LJ 96; Gail Mason and James Monaghan, ‘Autonomy and responsibility in sexual assault law in NSW: the Lazarus cases’ (2019) 31(1) Current Issues in Criminal Justice 47.

6 ABC Four Corners, ‘I am That Girl’ (aired on ABC television on 7 May 2018).

7 See now NSW Law Reform Commission, Consent in Relation to Sexual Offences (Report 148, September 2020).

8 NSWLRC, above n 7 at xi.

9 The Victorian Law Reform Commission is due to report by 31 August 2021.

10 Queensland Law Reform Commission, Review of Consent Laws and the Excuse of Mistake of Fact. Consultation Paper (WP No 78, December 2019).

11 QLRC, The QLRC Review of Consent Laws and the Excuse of Mistake of Fact Report (Report 78, June 2020).

12 See for example, Jonathan Crowe and Bri Lee, ‘The Mistake of Fact Excuse in Queensland Rape Law: Some Problems and Proposals for Reform’ (2020) 39(1) University of Queensland Law Journal 1; Jonathan Crowe, ‘Queensland rape law ‘loophole’ could remain after review ignores concerns about rape myths and consent’ The Conversation 4 August 2020; Bri Lee, ‘The old guard preventing reform to consent law’ The Saturday Paper 15–21 August 2020.

13 Criminal Code (Consent and Mistake of Fact) and Other Legislaiton Act 2021 (Qld).

14 To a lesser or greater extent, all Australian states and territories have undertaken comparable reforms: see Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (LawBook Co, 4th ed, 2017) ch 11.

15 From the common law focus on ‘carnal knowledge’ which required proof of penile-vaginal penetration towards a broader range of violating acts: see definition of ‘sexual intercourse’ in Crimes Act 1900 (NSW) s 61HA.

16 Consent is now expressly defined as ‘free and voluntary agreement’ as will be discussed below, and express inclusion of the fact that a person does not offer physical resistance does not indicate consent: Crimes Act 1900 (NSW) s 61HE(2), (11).

17 Regarding age and marriage, respectively, see Crimes Act 1900 (NSW) s 80AC and s 61KA.

18 In particular overturning the ‘corroboration warning’ (see Evidence Act 1995 (NSW) s 164 and Criminal Procedure Act 1986 s 294AA); addressing questions of delay in complaint (see Criminal Procedure Act 1986 s 294) and introducing a ‘rape shield’ provision to prevent the admission of sexual reputation (Criminal Procedure Act 1986 s 293(2)) and sexual experience evidence (see Criminal Procedure Act 1986 s 293(3)). Numerous feminist scholars have demonstrated the problematic impact of the old common law procedural and evidential rules on rape complainants. See for example, Quilter, above n 2; Susan Ehrlich, ‘Perpetuating – and Resisting – Rape Myths in Trial Discourse’ in Elizabeth Sheehy (ed), Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (University of Ottawa Press, 2012); Geoffrey Matoesian, Reproducing Rape: Domination through Talk in the Courtroom (Polity Press, 1993); Patricia Yancey Martin and R Marlene Powell, ‘Accounting for the “Second Assault”: Legal Organizations’ Framing of Rape Victims’ (1994) 19 Law and Social Inquiry 853; Melanie Randall, ‘Sexual Assault Law, Credibility, and “Ideal Victims”: Consent, Resistance and Victim Blaming’ (2010) 22 Canadian Journal of Women and the Law 397. More recently, see Elaine Craig, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession (McGill-Queen’s University Press, 2018); Elisabeth McDonald, Trial Process Reform in Adult Rape Cases (Canterbury University Press, 2020).

19 The pattern has been documented in a number of countries. See, for example, recently, Lori Haskell and Melanie Randall, The Impact of Trauma on Adult Sexual Assault Victims (Department of Justice, Canada 2019); McDonald 2020, above n 18; Olivia Smith, Rape Trials in England and Wales: Observing Justice and Rethinking Rape Myths (Palgrave Macmillan, 2018).

20 Australian Bureau of Statistics, Recorded Crime – Victims, Australia 4510.0 (ABS, 2018); Australian Bureau of Statistics, Recorded Crime – Victims, Australia 2018 (ABS, 2019); Melanie Millsteed and Cleave McDonald, Attrition of sexual offence incidents across the Victorian criminal justice system (Crime Statistics Agency, 2017); Lizzie Dearden, ‘“Overwhelming majority” of rapists going free because of collapse in prosecutions, campaigners warn’, The Independent, 30 June 2020, https://www.independent.co.uk/news/uk/crime/rape-prosecution-prison-sentence-police-cps-court-a9592186.html; Office for National Statistics (UK), ‘Sexual offending: victimisation and the path through the criminal justice system’ (ONS, December 2018); Jessica Harris and Sharon Grace, A Question of Evidence? – Investigating and Prosecuting Rape in the 1990s. Home Office Research Study 96 (Home Office 1999); Sarah-Jane Lilley and Marianne Hester, ‘Rape investigation and attrition in acquaintance, domestic violence and historical rape cases’ (2017) 14(2) Journal of Investigative Psychological Offender Profile 175; Jo Lovett and Liz Kelly, Different Systems, Similar Outcomes? Tracking Attrition in Reported Rape Cases across Europe, Final Research Report, (Child and Woman Abuse Studies Unit, London Metropolitan University, 2009); Liz Kelly, Jo Lovett and Linda Regan, A Gap or a Chasm? Attrition in reported rape cases. Home Office Research Study No 293 (Home Office, 2005); Kathleen Daly and Brigitte Bouhours, ‘Rape and attrition in the legal process: A comparative analysis of five countries’ (2010) 39(1) Crime and Justice: A Review of Research 565; Jennifer Temkin and Barbara Krahe, Sexual assault and the justice gap: A Question of attitude (Hart, 2008); Vanessa Munro and Liz Kelly, ‘A vicious cycle? Attrition and conviction patterns in contemporary rape cases in England and Wales’ in Miranda Hovarth and Jennifer Brown (eds), Rape: Challenging contemporary thinking (Routledge 2009) 281; Haskell and Randall, above n 19; Denise Lievore, ‘Prosecutorial decisions in adult sexual assault cases’, Trends & Issues in Crime & Criminal Justice No 291 (AIC. 2005); Denise Lievore, ‘Non-reporting and Hidden Reporting of Sexual Assault: An International Literature Review’ (Cth Office of Women, 2003); Jackie Fitzgerald, ‘The attrition of sexual offences from the New South Wales criminal justice system’, Contemporary Issues in Criminal Justice No 92 (NSW BOCSAR, 2006); NSW BOCSAR, The Progress of Sexual Offences Through the NSW Criminal Justice System, 2017 (BOCSAR, 2017).

21 Hugh Donnelly, Conviction Appeals in New South Wales, NSW Judicial Commission Research Monograph No 35 (NSW Judicial Commission, 2011) 220-1.

22 See, for example, the early work of Zsusanna Adler, ‘Rape — The Intention of Parliament and the Practice of the Courts’ (1982) 45 Modern Law Review 664; and Carol Smart, Feminism and the Power of Law (Routledge 1989). For a recent example of feminist work critical of the effectiveness of law reform see McDonald, above n 18.

23 See for example, Clare McGlynn and Vanessa Munro, Rethinking Rape Law: International and Comparative Perspectives (Routledge, 2010), covering international jurisdictions from England and Wales to Sweden, Canada, US, Australia and South Africa; in particular, Part III ‘National Perspectives’. The Australian Law Reform Commission has referred to this as the ‘implementation gap’ (ALRC, Family Violence – a National Legal Response. Report 114 (ALRC, 2010) [24.96]. See also Annie Cossins, ‘Why her behaviour is still on trial: The absence of context in the modernisation of the substantive law of consent’ (2019) 42 University of New South Wales Law Journal 462; L Vandervort, ‘Sexual consent as voluntary agreement: Tales of “seduction” or questions of law?’ (2013) 16(1) New Criminal Law Review: An International and Interdisciplinary Journal 143; Penny Pether, ‘What Is Due to Others: Speaking and Signifying Subject(s) of Rape Law” (2009) 18(2) Griffith Law Review 237; NSW Department For Women, Heroines of Fortitude: the experiences of women in court as victims of sexual assault (NSW Department for Women, 1996); Melanie Heenan and Helen McKelvie, The Crimes (Rape) Act 1991: An Evaluation Report. Rape Law Reform Evaluation Report No.2 (Victorian Department of Justice, 1997); Naffine Ngaire and Heath Mary ‘Men’s Needs and Women’s Desires: Feminist Dilemmas about rape law “Reform”’ (1994) 3 Australian Feminist Law Journal 30; Patricia Easteal (ed) Balancing the Scales: Rape, Law Reform and Australian Culture (Federation Press, 1998).

24 NSWLRC, above n 7.

25 See Brown and others, above n 1, ch 8.

26 NSWLRC, above n 7. After this article was written, the NSW Attorney General announced on 25 May 2021 that Parliament would enact all 44 of the NSWLRC's recommendations as well as introducing an 'affirmative consent standard' (discussed below).

27 See Luke McNamara, Julia Quilter, Russell Hogg, Arlie Loughnan, Heather Douglas, David Brown and Lindsay Farmer, ‘Understanding processes of criminalisation: Insights from an Australian study of criminal law-making’ (2019) Criminology & Criminal Justice (online) DOI: https://doi.org/10.1177/1748895819868519

28 McNamara and others, above n 27, 2–3.

29 This is one of six processes in the typology developed by McNamara et al: 1. Judge-made; 2. Single-stage, executive-driven; 3. Internal government agency initiative; 4. Mandated statutory review; 5. Government appointed inquiry/review; and 6. Independent review by standing commission/committee (above n 27). Domestic violence law reform tend to result from similarly careful, deliberative and consultative processes: see : see Julia Quilter, ‘Evaluating Criminalisation as a Strategy in Relation to Non-Physical Family Violence’ in Marilyn McMahon and Paul McGorrery (eds), Criminalising Coercive Control (Springer, 2020).

30 See Julia Quilter, ‘One Punch Laws, Mandatory Minimums and “Alcohol-Fuelled” as an Aggravating Factor: Implications for NSW Criminal Law’ (2014) 3(1) International Journal for Crime, Justice and Social Democracy 81; Luke McNamara and Julia Quilter, ‘The “Bikie Effect” and other Forms of Demonisation: the Origins and Effects of Hyper-criminalisation’ (2016) 34(2) Law in Context 5; David Brown and Julia Quilter, ‘Speaking too soon: the sabotage of bail reform in NSW’ (2014) 3(3) International Journal for Crime, Justice and Social Democracy 73-97; Lachlan Auld and Julia Quilter, ‘Changing the Rules on Bail: An Analysis of Recent Legislative Reforms in Three Australian Jurisdictions’ (2020) 43(2) UNSWLJ 642.

31 It is noted, however, that Hanley et al indicate that while empirical research may be discussed in the law reform process, there may be ways to improve its intergration particularly in relation to sexual offence law reform: see Natalia Hanley, Bianca Fileborn, Wendy Larcombe and Nicola Henry, ‘Improving the law reform process: Opportunities for empirical qualitative research?’ (2016) 49(4) Australian and New Zealand Journal of Criminology 546. See also the early work of Regina Graycar and Jenny Morgan, ‘Law reform: What’s in it for women?’ (2005) 23 Windsor Yearbook of Access to Justice 393.

32 For example, as will be discussed below, additions to the list of factors negating consent have often followed a problematic court decision. In 2018 amendments aimed at ameliorating claims that sexual offence complainants lie when differences in their evidence appear: see Criminal Procedure Act 1986 (NSW) s 293A ‘Warning may be given by Judge if differences in complainant’s account’.

33 See, for example, Julia Quilter, ‘The Operation of Australian “One Punch” Laws: 2008-2018’ (2019) 43 Criminal Law Journal 239. Cf, critiques made of the QLRC’s Report by Crowe, above n 12; and Lee, above n 12.

34 There is a large body of feminist literature discussing these issues including that cited above n 18, 20, 23. See also the early work of Susan Estrich, Real Rape (Harvard University Press, 1987). ‘Rape myth’ in particular will be discussed below.

35 Second reading speech, Crimes Amendment (Consent – Sexual Assault Offences) Bill 2007: NSW Parliamentary Debates, Hansard, Legislative Council, 7 November 2007, 3584.

36 NSW Parliamentary Debates, Hansard, Legislative Council, 7 November 2007, 3584.

37 Second reading speech, Crimes Amendment (Consent – Sexual Assault Offences) Bill 2007: NSW Parliamentary Debates, Hansard, Legislative Council, 7 November 2007, 3584.

38 Second reading speech, Crimes Amendment (Consent – Sexual Assault Offences) Bill 2007 (NSW), (NSW, Parliamentary Debates, Legislative Council, 7 November 2007, 3584

39 NSW, Parliamentary Debates, Legislative Council, 13 November 2007, 3908–3909.

40 The definition largely incorporated the language of Simpson J in Clark (Unreported, NSWCCA, 17 April 1998), in which her Honour stated that, ‘“Consent” for the purposes of NSW law … means consent freely and voluntarily given’. Justice Simpson was the Commissioner on the NSWLRC inquiry into Consent.

41 Crimes Act 1958 (Vic) s 36(1) ‘free agreement’; Criminal Code 1889 (Qld) s 348(1) ‘means consent freely and voluntarily given by a person with the cognitive capacity to give the consent’; Criminal Law Consolidation Act 1935 (SA) s 46(2) ‘For the purposes of this Division, a person consents to sexual activity if the person freely and voluntarily agrees to the sexual activity’; Criminal Code Act Compilation Act 1913 (WA) s 319(2)(a) ‘(a) consent means a consent freely and voluntarily given’; Criminal Code Act 1983 (NT) s 192(1) ‘(1) For this section, consent means free and voluntary agreement.’; Criminal Code Act 1924 (Tas) s 2A(1) ‘In the Code, unless the contrary intention appears, “consent” means free agreement.’ The Crimes Act 1900 (ACT) does not contain an express definition; only a list of negations of consent in s 67.

42 See Mary Heath, The law and sexual offences against adults in Australia. ACSSA Issues No 4 (2005); Sharon Cowan, ‘Choosing freely: Theoretically reframing the concept of consent’ in Rosemary Hunter and Sharon Cowan (eds), Choice and consent: Feminist engagements with law and subjectivity (Routledge-Cavendish, 2007) 91; Monaghan and Mason, above n 5; Rachael Burgin, ‘Persistent Narratives of Force and Resistance: Affirmative Consent as Law Reform’ (2019) 59(2) British Journal of Criminology 296; Rachael Burgin and Asher Flynn, ‘Women’s Behaviour as Implied Consent: Male “Reasonableness” in Australian Rape Law’ (2019) Criminology & Criminal Justice (online) DOI: https://doi.org/10.1177/1748895819880953; Crowe and Lee, above n 12.

43 ‘A person who does not offer actual physical resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity.’

44 See Julia Quilter, ‘From Raptus to Rape: A History of the “Requirements” of Resistance and Injury’ (2015) 2 Law & History 89.

45 For example, Linda Alcoff, Rape and Resistance (Polity, 2018); Daly and Bouhours, above n 20; Elisabeth McDonald, ‘From “real rape” to real justice? Reflections on the efficacy of more than 35 years of feminism, activism and law reform’ (2014) 45(3) VUWLR 487; Burgin, above n 42.

46 Lievore, above n 20; Statewide Steering Committee to Reduce Sexual Assault, Victoria (SSCRSA), A Study of reported rapes in Victoria 2000-2003: Summary research report (Office of Women’s Policy, Department for Victorian Communities, 2006).

47 R v Lazarus (Unreported, NSWDC, Tupman DCJ, 4 May 2017) (emphasis added).

48 See R v Lazarus [2017] NSWCCA 279, [147]-[149] (Bellew J; Hoeben CJ at CL and Davies J agreeing) ‘It follows that in my view, a “step” for the purposes of s. [61HE(4)(a)] must involve the taking of some positive act. However, for that purpose a positive act does not necessarily have to be a physical one. A positive act, and thus a “step” for the purposes of the section, extends to include a person’s consideration of, or reasoning in response to, things or events which he or she hears, observes or perceives. However, even allowing for that interpretation, it remains the case that those passages of her Honour’s reasons upon which the respondent relied do not comply with s. [61HE(4)(a)]. As I have said, those passages amount to nothing more than a recitation of factual findings. It follows that this ground has been made out.’

49 See Monaghan and Mason, above n 5; Mason and Monaghan, above n 5.

50 NSWLRC, above n 7, [5.1].

51 This approach is consistent with the common law: R v Aiken [2005] NSWCCA 328, 63 NSWLR 719 [12]; see NSWLRC, above n 7, [5.23].

52 NSWLRC, above n 7, [5.12].

53 See above n 41.

54 Ryan v The Queen (1967) 121 CLR 205.

55 See for example, Carole Pateman, The Sexual Contract (Polity Press, 1988). See also, Catherine MacKinnon, ‘Rape: On Coercion and Consent’ in Toward A Feminist Theory of the State (Harvard University Press, 1989) 171-183, ‘Sex and Violence a Perspective’ in, Feminism Unmodified: Discourses on Life and Law (Harvard University Press, 1987), 85-92, and ‘Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence’ (1983) 8(4) Signs 635; Nicola Lacey, Unspeakable subjects : Feminist Essays in Legal and Social Theory (Hart Publishing, 1998); Rosemary Hunter and Sharon Cowan (eds), Choice and Consent: Feminist engagements with Law and Subjectivity (Routledge, 2009); Lise Gotell, ‘Governing Heterosexuality through Specific Consent: Interrogating the Governmental Effects of R. v J.A’ (2012) 24 Canadian Journal of Women & Law 359 and Lise Gotell, ‘Rethinking Affirmative Consent In Canadian Sexual Assault Law: Neoliberal Sexual Subjects And Risky Women’ (2008) 41 Akron Law Review 865.

56 ‘The patriarchal interpretation of “patriarchy” as paternal right has had the paradoxical consequence of obscuring the origin of the family in the relation between husband and wife. The fact that men and women enter into a marriage contract … and are husbands and wives before they are fathers and mothers is forgotten. Conjugal right then becomes subsumed under father-right and, … argument[s] about patriarchy revolve … around the (familial) powers of mothers and fathers, so obscuring the wider social question of the character of relations between men and women and the scope of masculine sex-right.’ (Pateman, above n 55, 27-28). For an analysis of the different ways in which patriarchy has been defined see ‘Patriarchal Confusions’ (19-38).

57 Sex-right ‘is extended to all the brothers through the law of exogamy (kinship). That is, the brothers make a sexual contract.’ (Pateman, above n 55; emphasis in original).

58 See also Judith Allen’s discussion of the Australian legal treatment of ‘sex’ crimes (prostitution, abortion and rape), which supports Pateman’s argument of how the public and private are maintained and to the detriment of women: Judith Allen, Sex and Secrets: Crimes Involving Australian Women since 1880 (Oxford University Press, 1990).

59 It is to be noted that such arguments are not unique to writings on rape laws but are also discussed in studies on rape in, for instance, classical literature, myths and the visual arts. See Lynn Higgins and Brenda Silver (eds), Rape and Representation (Columbia University Press, 1991).

60 Susan Brownmiller, Against Our Will - Men, Women and Rape (Simon & Schuster, 1975), Ch 2, ‘In the Beginning was the Law’; also Barbara Toner, The Facts of Rape (Arrow Books 1977), ‘The History of the Law’ (85-98).

61 Lorenne Clark and Debra Lewis, Rape: The Price of Coercive Sexuality (Women’s Press, 1977).

62 See Herman Schwendinger and Julia Schwendinger, Rape and Inequality (Sage, 1983) ‘Custom and Law and Rape’ (91-104) and ‘Capitalism, Law, and Women’s Rights in the new world’ (105-122).

63 Moira Gatens, ‘Paradoxes of Liberal Politics: Contracts, Rights and Consent’ in Daniel O’Neil, Mary Lyndon Shanley and Iris Marion Young (eds), Illusion of Consent: Engaging with Carole Pateman (Pennsylvania University Press, 2008).

64 Gatens, above n 63, 37.

65 Moira Gatens, Imaginary Bodies: Ethics, Power & Corporeality (Routledge, 1996), ‘Contracting Sex’ (76-91).

66 Carol Smart Law, Crime and Sexuality: Essays in Feminism (Sage, 1995) 229.

67 Millicent Churcher and Moira Gatens, ‘Reframing Imaginaries in Heterosexual Relations’ (2019) 24(2) Angelaki 151, 151. See also Nicola Gavey, Just Sex? The Cultural Scaffolding of Rape (Routledge, 2008).

68 Following Foucault’s work in The History of Sexuality: Vol 1 An Introduction (trans. Robert Hurley (Penguin Books, 1978) he argues that ‘sexuality’ is not external to power but actively produced in and through power relations. According to Foucault’s argument, in the nineteenth century a combination of the ‘confessional’ as a mode of examining the conscience and the ‘medical technologies of sex’ actively constituted objects of sexuality and, around such objects, forms of sexuality proliferated (119). See also Judith Butler, Gender Troubles: Feminism and the Subversion of Identity (Routledge, 1990), in particular, ‘Subjects of Sex/Gender/Desire’ (1-34); and Judith Butler, Bodies That Matter: On the Discursive Limits of Sex (Routledge, 1993).

69 See, eg, Crimes Act 1900 (NSW) s 61HE(5), (6), (8).

70 See Mariana Valverde, Law’s Dream of a Common Knowledge (Princeton University Press, 2003).

71 Valverde, above n 70, 224.

72 See, for example, Gavey, above n 66; and Nicola Gavey, ‘The persistence of a masculine point of view in public narratives about rape’ in Ulrika Andersson, Monika Edgren, Lena Karlsson and Gabriella Nilsson (eds), Rape Narratives in Motion (Palgrave MacMillan, 2019) 247-255; Louise Ellison and Vanessa E Munro, ‘Of “Normal Sex” and “Real Rape”: Exploring the Use of Socio-Sexual Scripts in (Mock) Jury Deliberation’ (2009) 18 Social & Legal Studies 291.

73 On these issues see in particular, Elisabeth McDonald’s work on NZ rape trials (above n 18), and Elaine Craig’s analysis of how Canadian defence counsel mobilise discriminatory rape myths undermining progressive feminist law reforms (above n 18). In the case of marital rape cases see also Ruthy Lazar, Negotiating Sex: The Legal Construct of Consent in Cases of Wife Rape in Ontario (2010) 22(3) Canadian Journal of Women and the Law 329 and ‘The Vindictive Wife – Complainants’ Credibility in Cases of Wife Rape’ (2015) 25 Southern Californian Review of Law and Social Justice 1.

74 See for example, Estrich, above n 34; Martha R Burt, ‘Cultural Myths and Support for Rape’ (1980) 38 Journal of Personality and Social Psychology 217; Nils Christie, ‘The ideal victim’ in Ezzat Fattah (Ed), From crime policy to victim policy (Oxford University Press, 1986), 17–30; and more recently the collection by Nicola Henry, Anastasia Powell and Asher Flynn (eds), Rape Justice: Beyond the Criminal Law (Palgrave Macmillan, 2015).

75 Estrich, above n 33. See also Anne Summers, Damned Whores and God’s Police: The Colonization of Women in Australia (Penguin Books, 1975) who documented more broadly how ‘true’ victims have been constructed historically.

76 See for example, Crowe and Lee, above n 12; Anastasia Powell, Nicola Henry, Asher Flynn and Emma Henderson ‘Meanings of “Sex” and “Consent” the Persistence of Rape Myths in Victorian Rape Law’ (2013) 22(2) Griffith Law Review 456.

77 See also Jennifer Temkin, Jacqueline Gray and Jastine Barrett, ‘Different Functions of Rape Myth Use in Court: Findings from a Trial Observation Study’ (2018) 13 Feminist Criminology 205, 218. See also Helen Cockburn, The Impact of Introducing an Affirmative Model of Consent and Changes to the Defence of Mistake in Tasmanian Rape Trials (PhD Thesis, University of Tasmania, 2012).

78 NSWLRC, above n 7, [4.19].

79 NSWLRC, above n 7, 212.

80 See, eg, Victorian Law Reform Commission, Sexual Offences. Final Report (VLRC 2004) [9.48]–[9.50], recs 193, 194; Australian Law Reform Commission and NSW Law Reform Commission, Family Violence: A National Legal Response, ALRC Report 114, NSWLRC Report 128 (2010) vol 2, [25.184]–[25.203], rec 25-8, rec 25-9.

81 See Crimes Act 1958 (Vic) s 37A(a).

82 See Burgin, above n 42; Burgin and Flynn, above n 42; Ashlee Gore, ‘It’s All or Nothing: Consent, Reasonable Belief, and the Continuum of Sexual Violence in Judicial Logic’ (2020) Social & Legal Studies https://doi.org/10.1177/0964663920947813

83 See NSWLRC, above n 7, chapter 8 ‘Jury directions and expert evidence’.

84 NSWLRC, above n 7, [8.29].

85 Rachael Burgin and Jonathan Crowe, ‘The New South Wales Law Reform Commission Draft Proposals on consent in sexual offences: a missed opportunity?’ (2020) Current Issues in Criminal Justice DOI: 10.1080/10345329.2020.1801151 (at 5).

86 Roland Barthes, Mythologies trans A Lavers (Jonathan Cape, 1972), in particular ‘Myth Today’. I thank David Brown for encouraging consideration of Barthes work in this regard.

87 Barthes, above n 86, 129; also 110.

88 Barthes, above n 86, 131.

89 Churcher and Gatens, above n 67, 151-2.

90 Crimes Act 1958 (Vic) s 36(2); Criminal Code 1889 (Qld) s 348(2); Criminal Law Consolidation Act 1935 (SA) s 46(3); Criminal Code Act Compilation Act 1913 (WA) s 319(2)(a); Criminal Code Act 1983 (NT) s 192(2); Criminal Code Act 1924 (Tas) s 2A(2); Crimes Act 1900 (ACT) s 67.

91 [1991] VR 339.

92 For critiques of the decision, and restrictive approach to the vitiation of consent at common law, see Jenny Morgan, ‘Rape in medical treatment: The patient as victim’ (1991) 18 MULR 403; Simon Bronitt, ‘Rape and lack of consent’ (1992) 16 Crim LJ 289.

93 See Crimes Act 1958 (Vic) s 36(f).

94 Note that the recent decision of NSWCCA in DPP (NSW) v Taylor [2020] NSWCCA 138 addresses the issue of a medical examination conducted for sexual gratification purposes quite differently: [57], [67]. For another illustration of ‘corrective’ statutory re-definition (of what consent is not), see Papadimitropoulos (1957) 98 CLR 249 and the resulting s 61HE(6)(b) of the Crimes Act 1900 (NSW), on mistake as to marriage.

95 Of course, discursive processes about what qualifies as consent (and non-consent) are not experienced in the same way by all complainants. It is important to recognise the additional risk of ‘disqualification’ experienced by some complainants, including Aboriginal and Torres Strait Islander women, and women with disabilities, and the ways in which intersectionality can compound marginalisation (Kimberle Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics and Violence Against Women of Color’ (1991) 46 Stanford Law Review 1241).

96 On the significant number of ‘grey area’ sexual encounters, see Gavey, above n 67.

97 On the communicative function of the criminal law, see Jeremy Horder, Ashworth’s Principles of Criminal Law (Oxford University Press, 9th ed, 2019) 182; James Chalmers and Fiona Leverick, ‘Fair labelling in Criminal Law’ (2008) 71(2) The Modern Law Review 217.

98 See NSWLRC, above n 7, ch 6, ‘When a person “does not consent”’.

99 Crimes Act 1900 (NSW), s 61HE(5)-(6), (8).

100 See Churcher and Gatens, above n 67.

101 NSWLRC, above n 7, [5.12].

102 See for example, Deborah Tuerkheimer, ‘Affirmative Consent’ (2016) 13 Ohio State Journal of Criminal Law 441, 441; Asher Flynn and Nicola Henry, ‘Disputing Consent: The Role of Jury Directions in Victoria’ (2012) 24 Current Issues in Criminal Justice 167, 172; Burgin and Crowe, above n 85.

103 And in some US and European jurisdictions: see NSWLRC, Consent in relation to sexual offences. Consultation Paper 21 (NSWLRC, October 2018) [3.38].

104 Criminal Code (Tas) s 2A(2)(a) provides that a person does not freely agree to an act if they do not say or do anything to communicate consent.

105 Crimes Act 1958 (Vic) s 36(2)(l): consent is negated where ‘the person does not say or do anything to indicate consent to the act’; and see Jury Directions Act 2015 (Vic) s 46(3)(a).

106 In particular, such drafting techniques are employed in the Victorian Crimes Act 1958 (Vic), see the examples used in the following sections: Crimes Act 1958 (Vic) ss 4A, 35D, 51E, 51G, 51I, 51L, 51M, 51N, 52A, 52F, 195H, 462A. Such examples are to be construed as part of the Act: see Crimes Act 1958 (Vic) Notes. See also Criminal Code 1995 (Cth) s 104.11A. An alternative is to provide examples within specific guidelines to the relevant offence. When the UK introduced the offence of ‘controlling or coercive behaviour’ in s 76 of the Serious Crime Act 2015 (UK) the Home Office released Controlling or Coercive Behaviour in an Intimate or Family Relationship Statutory Guidance Framework (December 2015), which for instance provides an inclusive list of behaviours that might amount to coercive or controlling behaviour: see, at 4. These Guidelines have statutory force under s 77 of the Serious Crime Act 2015 (UK) which provides, ‘The Secretary of State may issue guidance about the investigation of offences under section 76 to whatever persons the Secretary of State considers appropriate.’

107 Judicial Commission of NSW, Criminal Trial Courts Bench Book Update 62 (May 2020), [5-1566] (emphasis added).

108 Question of Law (No 1 of 1993) (1993) 59 SASR 214 at 216. The case received considerable media coverage on the issues of judicial attitudes to rape and gender bias in the judiciary: see ‘Educating the judiciary on gender bias: editorial’ (1993) 17(3) Crim LJ 155; Report of the Senate Standing Committee on Legal and Constitutional Affairs, Gender Bias and the Judiciary (1994). In Question of Law (No 1 of 1993) (1993) 59 SASR 214, the DPP referred to the Full Court two questions of law – one of which was whether it was an error of law to direct the jury in relation to consent and persuasion in these terms. The Full Court, by majority, found that the direction was an error of law. See Barbara Ann Hocking, ‘The presumption not in keeping with any times: Judicial reappraisal of Justice Bollen’s comments concerning marital rape’ (1993) 1 Aust Feminist LJ 152; Vicki Waye, ‘Case and comment’ (1993) 17 Crim LJ 355; Terry Threadgold, ‘Critical theory, feminisms, the judiciary and rape’ (1993) 1 Aust Feminist LJ 7; Bernadette McSherry, ‘No! (means no?)’ (1993) 18 Alt LJ 27

109 The NSWLRC recommends these be incorporated into the Criminal Procedure Act 1986 s 292(5)-(9) and include directions on ‘Lack of physical injury, violence or threats’ in proposed s 292(7): ‘(a) people who do not consent to a sexual activity may not be physically injured or subjected to violence, or threatened with physical injury or violence, and (b) the absence of injury or violence, or threats of injury or violence, does not mean that a person is not telling the truth about an alleged sexual offence’: NSWLRC, above n 7, 215-16. It is noted that while Victoria has been a leader in legislating jury directions in the area of sexual assault, these directions are not without criticism. See for example, Emma Henderson and Kirsty Duncanson, ‘A Little Judicial Direction: Can Jury Directions Challenge Traditional Consent’ (2016) 39(2) UNSWLJ 750.

110 See Hanley and others, above n 31.

111 ABC Four Corners, above n 6. For a discussion of the Lazarus cases see Mason and Monaghan, above n 5.

112 BOCSAR, Crimes (Sexual Assault) Amendment Act 1981 Monitoring and Evaluation, Interim Report No 1, Characteristics of the Complainant, the Defendant and the Offence (1985); Interim Report No 2, Sexual Assault-Court Outcome: Acquittals, Conviction and Sentence (1985); Interim Report No 3, Court Procedures (1987).

113 Crimes (Amendment Act) 1989 (NSW).

114 NSWLRC, above n 7, 10.

115 ‘Open justice review: Court and tribunal information: access, disclosure and publication’.

116 John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465, Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, Final Report 129, 2016, [8.53].

117 International Covenant on Civil and Political Rights, Article 14(1).

118 Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378, [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ).

119 Obviously in the context of sexual assault trials questions of anonymity particularly for complainants needs to forefront to such access, noting that it is a criminal offence under s 578A(2) of the Crimes Act 1900 (NSW) to publish identifying victims of certain sexual offences.

120 There is no presumption in the rules governing access to documents (including judgements) in the District Court: see District Court Rules 1973, Rule 52.3(2).

121 Under the Criminal Procedure Regulation 2017 (NSW) sch 2 item 11, the cost of a transcript of recent proceedings is $91 for up to 8 pages and $11 for each page thereafter. The costs for proceedings older than 3 months is even higher ($111 + $13). Fee waiver is possible under current arrangements (cl 16) but entirely a matter of discretion, exercisable by a registrar Criminal Procedure Regulation 2017 (NSW), cl 16.

122 NSW also needs a clear, publicly available, simple application process for access to data (whether it be for transcripts, judgments or other). The Victorian County Court has a relatively simple form which can be downloaded from the Court’s website in order to seek access to criminal or appeal files for example.