- Empirical investigation of what goes on in courtrooms and their consequences for the accused, the victims and the wider community, are important. However, such empirical observation is not immune from the vagaries and values of legal rhetoric—not least because it must be addressed to someone, no matter how attenuated or distanced that address is.
- All unattributed references to legislative sections in this essay are to the Crimes Act 1958 (Vic) as amended. The primary reform of the law of sexual offences in recent years and incorporated into the 1958 Crimes Act has been the Crimes (Rape) Act 1991 (Vic).
- It would also be necessary to take into account the fact that for some time now the judicial profession in Victoria has not fared well in the hands of the Victorian government.
- See Papadimitropoulos (1958) 98 CLR 249, 252 [my interpolation].
- However, it is still possible to read the standard of will playing an implicit role in sex law. This is because the standard of consent is a more general concept and in fact incorporates the more limited standard of will.
- The proposed law of sexual offences for the Model Criminal Code are discussed in this volume of the journal in the submission by Nina Puren and the submission by Peter Rush and Alison Young, the latter entitled ‘A Crime of Consequence and A Failure of Imagination’.
- Law Reform Commission of Victoria, Rape: Reform of the Law and Procedure. Report No 43, Melbourne: Author, 1991, 16.
- In Victoria, the medieval crime of sodomy and the more modern crime of gross indecency between men have been abolished. Male-male sexual activity is now dealt with in various ‘gender-neutral’ crimes. One reading of the legislation is that its use of gender-neutral language is targeted at prohibiting homosexual activity. Such activity is to be distinguished from male-male rape which is usually a homophobic practice by heterosexual men against gay men.
- This remark is made by Lord Hailsham in DPP v Morgan (1975) 2 All ER 347, 349. As Hailsham exhibits, although such an interest is consciously disavowed, judgments cannot but help themselves in going into the ‘lurid details’.
- This legal assumption does not have to be statistically accurate to be persuasive in a legal context for law. Law is driven, if it is driven, not by empirical observation but by its images.
- But see the modification of this below.
- This dual legal structure of consent is unlike other serious offences against the person (such as assault) where the presumption is that the victim was not consenting. It is also unlike offences against property (theft, obtaining by deception) in which either the consent of die victim is irrelevant or it is presumed to be absent.
- Where the victim's belief as to consent is mistaken, does law accord it the same privilege as the accused's mistaken belief? The short answer is no. For example, a woman's belief that she is consenting to marital sex is legally converted into a woman's consent to sex—and it is irrelevant that her belief is mistaken because she was not in fact married to the man with whom she was engaging in sex. See Papadimitropoulos (1958) 98 CLR 249 and s36 Crimes Act 1956 (Vic).
- This theme of the identification of law and rape is pursued in more detail in Peter Rush, Criminal Law, Sydney: Butterworths, 1997, chapter 6.
- Note how this presumption is the opposite of the presumption in the law of rape and the law of indecent assault (discussed above) and is more in line with the presumption in the law of assault and the law of theft (see above n12). This is simply to emphasise that it is not women who are protected by the law of rape or indecent assault (but rather persons) and it is not women who are protected by the law of sexual offences against children (but rather children and so on).
- The belief of the defendant must be honest and reasonable. This is different to the law of rape and indecent assault which merely requires that the belief of the defendant must only be honest. The legislature has repeatedly refused requests by various groups to reform the law so as to require, in rape and indecent assault, an honest and reasonable belief on the part of the defendant as to the woman's consent.
Australian Feminist Law Journal
Volume 9, 1997 - Issue 1