By Adrienne Barrett
MELBOURNE — Victorian Premier Joan Kirner has hailed proposed new rape laws as "trailblazing", but Melbourne barrister Jocelyn Scutt says the changes will do no more than bring Victorian law into line with reforms in WA, NSW and the ACT over the past decade. The changes, proposed in a report by the Law Reform Commission, will be the third in 10 years. Interest in them is high due to several recent, highly publicised, sexual assaults.
Lea Corbett, a lawyer for the Real Rape Law Coalition, describes the report as "lowest common denominator politics". Some of the coalition's detailed recommendations to the commission have been taken up, but others have been left out or watered down. The coalition says the proposals don't place sufficient responsibility on a man to ascertain consent before having sex, leaving the onus on the woman to prove she didn't consent.
The report's main proposals concern legislative definitions of rape and the issue of consent. Currently, a rape conviction requires proof that an accused intentionally committed sexual penetration without a victim's consent and without believing that the victim was consenting.
In practice, however, the law requires much more than this. Almost invariably, defence counsel demand proof in the form of serious, visible physical injury, that the victim was in fear of her life and that she actively resisted.
Verbal protests, ineffective resistance or submission are not treated as sufficient evidence of rape. If a woman is unable to prove conclusively that she communicated refusal, she is regarded as having participated in consensual sex.
The new proposals go some way towards addressing these problems by taking sexual assault out of the area of common law, which is based heavily on precedent and interpretation. This is a problem because social attitudes have changed quickly over the past 20 years.
In a recent case a Melbourne barrister said a woman walking near housing commission flats wearing a miniskirt and make-up was putting herself in a situation in which rape was inevitable, and consent presumably irrelevant.
The report defines consent as free agreement, and proposes some definitions of non-consent. These include submission due to force or threats, kidnapping, unlawful detention, sleep, unconsciousness, inability to freely agree due to the influence of drugs or alcohol, misinformation about the sexual nature of the act and inability to understand the sexual nature of the act.
This clarifies a number of issues that are unclear in common law. The courts have not previously recognised that a woman may be forced to submit due to threats to her children, or that a woman who submits while illegally detained cannot be said to have consented.
The amendment would require judges to instruct juries that a failure 9>is normally enough to show that the act took place without free agreement".