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Meanings of ‘Sex’ and ‘Consent’: The Persistence of Rape Myths in Victorian
Rape Law
Dr Anastasia Powell, Dr Nicola Henry, Dr Asher Flynn and Dr Emma Henderson
Author Affiliations:
Anastasia Powell is a Lecturer in Justice and Legal Studies at RMIT University
(Australia): anastasia.powell@rmit.edu.au
Nicola Henry is a Senior Lecturer in Legal Studies at La Trobe University
(Australia): n.henry@latrobe.edu.au
Asher Flynn is a Lecturer in Criminology at Monash University (Australia):
asher.flynn@monash.edu.au
Emma Henderson is a Lecturer in Law at La Trobe University (Australia):
e.henderson@latrobe.edu.au
Suggested citation:
Powell, A., Henry, N., Flynn, A. and Henderson, E. (2014). ‘Meanings of “Sex”
and “Consent”: The Persistence of Rape Myths in Victorian Rape Law’, in Griffith
Law Review, (accepted 10 January 2014), 1-38.
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Meanings of ‘Sex’ and ‘Consent’: The Persistence of Rape Myths in Victorian
Rape Law
Synopsis
Since the 1980s, laws regulating the meaning and interpretation of sexual consent
have been substantially reformed across Australian and international jurisdictions.
Of particular note in an Australian context are the significant changes to the
definition of consent introduced in Victoria in 2006 and 2007, which were primarily
informed by the Victorian Law Reform Commission’s review of legislative
provisions relating to sexual offences. In this article, we explore the persistence of
traditional rape discourses in the courtroom following the 2007 Victorian reforms
by examining meanings of ‘sex’ and ‘consent’ in a pilot sample of rape trials. Our
analysis suggests that although deeply entrenched societal myths or discourses
about rape continue to pervade Victorian courtrooms, there is some evidence of a
shift towards a legal focus on the accused’s state of mind, in addition to that of the
victim-complainant. This shift, however, is only prominent in cases in which the
accused testifies. In light of these preliminary findings, we suggest that further
comparative analyses of the qualitative impact of law reform on discursive
constructions of ‘sex’ and ‘consent’ in rape trials may provide alternative measures
of the impact of rape law reform.
Keywords: Rape, Law Reform, Consent, Discourse
Word count (excluding notes): 9,410
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Meanings of ‘Sex’ and ‘Consent’: The Persistence of Rape Myths in
Victorian Rape Law
Introduction
Across international jurisdictions, high levels of attrition in rape cases persist at each
stage of the criminal justice process.1 In Australia, victim surveys suggest that only
20% of women who experience sexual assault report the matter to the police, and of
these reports, between 15% and 20% result in charges being laid.2 Indeed, feminist
legal scholarship has long decried the low reporting, prosecution and conviction
rates for rape crimes, suggesting it is evidence of the failure of successive waves of
rape law reform to increase conviction rates and ensure just outcomes for victim-
survivors, particularly women.3!
The perceived failure of law reform to effect real change in the outcomes of
both rape reporting and criminal trials has led some scholars to question whether
women and law reformers should even engage with the criminal justice system in
such cases.4 Others, however, argue that feminist disengagement from rape law
reform is not and cannot be a viable option,5 and that it is important for feminist
scholars to critically examine both quantitative and qualitative effectiveness
measures of rape law reform. 6 Emerging scholarship suggests that qualitative
measures such as victim-complainants’ experiences of the trial process, and evidence
of societal shifts in understandings of rape, may be significant indicators of the
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1 Fitzgerald 2006; Heenan & Murray 2006; Kelly et al 2005; Larcombe 2011b; Office for Criminal
Justice Reform 2006; Taylor 2007; Temkin & Krahe 2008; Victorian Law Reform Commission
[VLRC] 2004.
2 Australian Bureau of Statistics 1996; Australian Bureau of Statistics 2006; Heenan & Murray 2006;
Mouzos & Makkai 2004.
3 Larcombe 2011b.
4 See Graycar & Morgan 2005.
5 Munro 2007.
6 Larcombe 2011b.
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‘success’ of law reform, beyond criminal justice outcomes alone.7
Over the past four decades, feminist scholars have been instrumental in
exposing persistent gendered discourses surrounding so-called ‘normal sex’, ‘real
rape’ and ‘consent’, which continue to influence perceptions of rape, victim-
complainants, perpetrators, as well as members of the judiciary and jurors in their
determinations in rape trials. Some scholars, for example, describe the ways in
which courtroom discourse in rape trials commonly reinforces populist cultural
understandings of aggressive and non-communicative sex as consensual.8 Indeed,
one of the stated aims of the Victorian Law Reform Commission [VLRC] in
recommending changes to the law regarding rape trials in Victoria was to ‘deal
with problematic social attitudes towards sexual practices that unfortunately
persist’ and to ‘dispel the enduring myth that a woman must show evidence of
physical resistance in order to provide evidence of a lack of consent’.9 In the context
of another wave of significant rape law reforms,10 it is timely to once again explore
such myths and meanings in Victorian rape trials.
In this article we analyse traditional discourses and rape myths through an
examination of the meanings of ‘sex’ and ‘consent’ as constructed in a pilot sample
of ten Victorian rape trials. The ten cases were identified from appellate reports
throughout 2010 and 2011, after a search for all cases involving adult victim-
complainants, where the judicial directions on consent or the accused’s awareness
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7 Larcombe 2011b.
8 Larcombe 2005; Pineau 1989.
9 Victorian Law Reform Commission 2003, p328.
10 In November 2013, the Victorian Department of Justice released a consultation paper, Review of
Sexual Offences: Consultation Paper, seeking input on three proposed reform models to further clarify
and uncomplicated sexual assault laws in Victoria. The paper has been prepared to ‘enable the
Victorian community to have its say in how to improve Victoria’s sexual offence laws’ (Victorian
Department of Justice 2013). At the time of writing, submissions are still being sought and there is no
indication of when a further report or recommendations will be released.
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of consent were at issue. This search identified a total of 12 eligible cases, though
due to the confines of the pilot study and relevant judicial permissions, we obtained
access to ten complete trial transcripts. The ten trials were commenced and finalised
between 2008 and 2010.11 In order to provide anonymity to the accused and victim-
complainant, the case citations and all parties have been de-identified.
The trial transcripts were analysed employing a discursive method whereby
we critically examined microlinguistic courtroom ‘conversations’ within ‘discernible
contexts of social interaction’ or ‘discourses’.12 As such, our analysis focuses on the
examination and cross-examination of the victim-complainant, witnesses who were
present prior to or following the rape, and when given, the testimony of the accused,
in order to gain insight into broader multiple and shifting discourses that are
extractable from these conversational, textual interactions. 13 In using the term
‘discourse’, we are referring to the different cultural understandings, assumptions,
ideologies or presumed ‘knowledges’ that exist not only in written and verbal forms,
but which are also expressed in the social practices and interactions of everyday
life.14 We understand discourse in a Foucauldian sense, as ‘an instrument of and an
effect of power, but also a hindrance, a stumbling block, a point of resistance and a
starting point for an opposing strategy’.15 Discourse analysis is well-established
within feminist and other social sciences research methodologies as a way of
examining the ‘meaning making’ that occurs in both the form and function of the law
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11 Many of the cases in our pilot sample and their appellate reports are directly relevant to the ongoing
debate regarding both the legal interpretation and intentions of the 2007 reforms to the jury directions
on consent (see Flynn & Henry 2012; Larcombe 2011a); reforms which were subsequently under
review by the Department of Justice (State Government of Victoria) as this article went to press.
12 Holstein & Gubrium, p341.
13 The accused testified in 5 out of the 10 pilot cases. It is not possible here to draw conclusions about
whether the accused testifying played in determining the final outcome, though we suggest attention to
such variables should be a focus in future comparative research.
14 Foucault 1972.
15 Foucault 1978, p101.
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and its application in legal proceedings.16 According to John Conley and William
O’Barr:
Discourse analysis is the study of how such segments, or texts, are structured and
how they are used in communication. In the context of law, discourse in the
linguistic sense refers to the talk that constitutes courtroom testimony, closing
arguments, lawyer-client interviews, arguments between disputants, mediation
sessions, and the like.17
In particular, our analysis sought to identify the various ways in which
contested meanings of ‘sex’, ‘rape’ and ‘consent’ are drawn upon and constructed at
trial, in light of the communicative model of consent (see explanation below), and
whether there have been any discernible shifts in these various discourses. In our
analysis we argue that discursive meanings and rape myths constructing ‘real rape’ –
so often problematised in feminist legal scholarship – remain a persistent feature of
Victorian rape trials, despite recent reforms. However, we also identify evidence of a
shift in discursive constructions of ‘sex’ and ‘consent’ in our sample, when the
accused testified. This suggests a further and arguably progressive impact of the
2007 reforms, and demonstrates the urgent need for comparative analyses of the
impact of rape law reform using qualitative measures of success. Before discussing
our analysis, in the following sections we provide further background to both the
contested meanings and discourses that have been previously identified as
influential in rape trials, as well as the recent context of law reform in Victoria.
Contested Meanings of Sex and Consent in Social, Legal and Feminist
Discourses
Rape trials do not occur in a social and cultural vacuum. Rather than viewing
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16 See for example, Ehrlich 2001; Larcombe, 2005; Taylor 2004; Young 1998.
17 Conley & O’Barr, p7.
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trials as involving an impartial jury applying gender-neutral laws to the objective
facts in a case, we align ourselves with other feminist researchers who argue that
dominant societal and highly gendered discourses or meanings regarding ‘sex,’
‘rape’ and ‘consent’, have long influenced the process and outcomes of rape
trials.18 In exploring the discursive meanings of sex, rape and consent in Victorian
rape trials, we find it useful to begin our analysis by briefly foregrounding three
related sites of discursive practice: social, legal and feminist discourses.
Social Discourses
Social constructions of ‘real rape’ have long been based on the scenario of an assault
carried out by a stranger, and a victim-complainant actively resisting usually with
force, or a strong verbal attack.19 Captured in these societal discourses regarding
‘real rape’ are related assumptions of ‘normal’ and consensual sex, in which men’s
active sexual desire is situated against women’s passive receptivity.20 As the
VLRC noted in its 1991 report, ‘no matter what she says, if she lies there during the
assault, and does not injure the assailant or sustain extensive physical injury herself,
that is considered to be consistent with a woman’s part in consensual relations’.21 In
this binary model of sexuality, women are understood to commonly offer ‘token
resistance’ to sex that they secretly desire, in order to protect their sexual
reputation. It is also expected that men might need to seduce or persuade women
into sex, and as such, may misinterpret women’s resistance to sex as part of the
seduction script.22 This gendered gap in sexual communication is further explored by
Robin Wiener, who explains that ‘both men and women are socialized to accept
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18 See Ellison & Munro 2009a; Estrich 1987; Larcombe 2005; Pineau 1989.
19 Christie 1986; Estrich 1987; Lievore 2005.
20 Holland et al 1998; Hollway 1984; Powell 2010.
21 LRCV 1991, pp163-64.
22 See Frith & Kitzinger 1997; Muehlenhard 1988; Powell 2010.
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coercive sexuality as the norm in sexual behavior, [and] men often see extreme forms
of this aggressive behavior as seduction, rather than rape’.23
Social constructions of ‘real rape’ are often embedded in persistent attitudes
or beliefs about rape, victim-complainants and perpetrators that serve to trivialise,
deny or justify the perpetration of sexual violence.24 Rape myths are derived from
sex role stereotyping, adversarial sexual beliefs, sexual conservatism and the
acceptance of interpersonal violence. Victims, perpetrators, bystanders and jurors, as
well as ordinary members of the community (males and females alike), can play a
role in sustaining and perpetuating rape myths.25 Indeed, the findings from a variety
of recent Australian community attitude surveys demonstrate that many gendered
discourses or myths about sex and rape continue to be reflected in general societal
views.26
Predominantly, the social construction of rape myths results in blurred
perceptions around what constitutes legal and illegal sexual activity, and this
confusion largely revolves around the issue of consent. Societal discourse and myths
about rape also have strong implications for juror decision-making, with much
research finding that juries routinely draw on their own normative attitudes and
assumptions regarding sex and rape in their deliberations. 27 Accordingly, the
prevalence of rape myths within society may provide some explanation for the low
attrition rates and the low levels of reporting of sexual offences.28 As Karen Weiss
argues, women may be ashamed to report rape due to ‘cultural assumptions about
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23 Weiner 1983, p81.
24 Burt 1980.
25 Finch & Munro 2005; LRCV 1991; Taylor & Joudo 2005; Waye 1992.
26 See Taylor & Mouzos 2006; VicHealth 2010.
27 Ellison & Munro 2009a, 2009b, 2010; Finch & Munro 2005; Taylor & Joudo 2005.
28 Taylor 2007; Weiss 2010.
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how “good girls” should behave and how “bad girls” will be judged’.29 In our
analysis of trial transcripts below, we examine the extent to which these societal
discourses have shifted within the institutional realm of law.
Legal Discourses
An appreciation of societal discursive meanings of rape has the potential for
understanding not only juror decision-making and the low reporting and attrition
rates of sexual offences, but also the institutional and interpersonal responses to these
crimes. Traditionally, rape was defined in law as the carnal knowledge of a woman
‘against her will’. 30 The requirements of the crime were typically sexual
penetration, use of force, and physical resistance. In order for the accused to be
convicted of rape, victims were expected to have exerted strong resistance with the
requisite proof of sustained physical injury. 31 This emphasis on the victim-
complainant’s physical resistance and level of injury as providing proof of ‘real rape’
continues to be identified in research examining police and prosecutorial decision-
making regarding how best to proceed with rape cases. Across Australian
jurisdictions, Denise Lievore found that prosecutors were most likely to proceed with
a rape case when the victim-complainant was injured, when the victim-complainant
physically or verbally expressed non-consent, when the assault was severe (for
example, if it involved a level of force or a weapon) and where the offender was a
stranger32. On this basis, Lievore found that 87% of cases that proceeded to court
involved a threat, force or injury to the victim-complainant, or an offender who used
a weapon; while in 87% of the cases in which the prosecutor chose not to proceed,
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29 Weiss 2010, p293.
30 Hale 1847, p626.
31 Estrich 1987; Lonsway & Fitzgerald 1994; Heenan & Murray 2006; Lievore 2005.
32 Lievore 2005.
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the perpetrator was known to the victim-complainant.33 A similar pattern emerged in
Melanie Heenan and Suellen Murray’s examination of the Victoria Police Law
Enforcement Assistance Program [LEAP] database, in which 850 reports of sexual
assault offences that were made to the police in Victoria in the 2000-03 period were
analysed. Heenan and Murray found that a charge was more likely to be laid when
the victim-complainant was ‘physically injured; medically examined; not influenced
by alcohol or drugs at the time of the offence; subject to other offences alongside the
rape; and raped by offenders well known to police for previous sexual offending’.34
In addition to social myths and stereotypes impacting on the law’s response
to rape, the defence of an ‘honest, but mistaken belief in consent’ – arguably a
constructed myth in itself – has existed as a basis to challenge an allegation of rape
since the 1970s in most western jurisdictions, including Australia, the US, the UK
and Canada.35 Not unsurprisingly, this defence reflects traditional notions of both
male and female sexuality, and has enabled accused persons to claim they honestly
believed that the victim-complainant consented to sex, regardless of how mistaken or
unreasonable that belief may have been. This is because the defence protects an
accused from a rape conviction if s/he is deemed to lack the requisite intent to satisfy
the mens rea requirements of the crime.36 As Wendy Larcombe further explains, one
of the effects of gendered discourses on rape is to ‘make it increasingly “reasonable”
that an accused (or the criminal law) may not be able to know whether a complainant
was consenting or not’.37 Many scholars have similarly identified the continued
influence of problematic gendered assumptions surrounding sex and consent in
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33 Ibid.
34 Heenan & Murray 2006, p5.
35 Australia (R v Brown 1975; R v Maes 1975; R v McEwan 1979; R v Wozniak 1977); the US (People v
Mayberry 1975, California); the UK (Director of Public Prosecutions (DPP) v Morgan); and Canada
(Pappajohn v The Queen 1980).
36 See Douglas 2007; Faulkner 1992; Larcombe 2011a.
37 Larcombe 2005, p28.
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contemporary rape law, despite the introduction of feminist-inspired law reform.38
Feminist Discourses
Feminist discourses on rape have played a significant role in challenging both legal
and social constructions of ‘normal’ sex, ‘real rape’ and the associated gendered
assumptions regarding consent. Feminist legal philosopher Lois Pineau has claimed
that ‘what is really sexual assault is often mistaken for seduction’.39 Catharine
MacKinnon likewise argues that ‘under law, rape … is not regarded as a crime when
it looks like sex’. 40 Expanding on this idea, Pineau further argues that the
negotiation of consent should be based on a concept of mutual active
communication. She suggests that in sexual assault cases, if a person claims to have
believed that the other person was consenting, instead of focusing on whether or not
the victim-complainant used physical force to resist, courts should focus on the
measures taken by the accused to find out if the victim-complainant was consenting.
Thus before guilt can be determined, the court should actively seek out answers to
questions such as: h ow did the accused know the victim-complainant was
consenting? And, what active measures did the accused take to ascertain this
consent?
Such feminist challenges to traditional conceptions of consent have
subsequently led to the development of the ‘communicative’ or ‘active’ model of
consent. The communicative model of consent is based on ‘free agreement,’
characterised by mutual respect and communication, such as positive and
encouraging responses from both parties; on the other hand, the absence of
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38 Ellison & Munro 2009a; Estrich 1987; Larcombe 2005; Pineau 1989.
39 Pineau 1989, p217.
40 MacKinnon 1989, p172.
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communicative characteristics constitutes evidence of rape.41 This model reverses the
burden on the victim-complainant to resist or actively refuse the sexual advance, and
instead focuses on the initiator of sex, and the steps s/he took to find out if the other
person was consenting.
The communicative model of consent has the potential to challenge
traditional gendered discourses regarding normal sex and real rape, and to re-educate
the broader community on what engaged participatory consent looks like.42 But it is
not without controversy. Some have argued that the requirement around active
communication as the basis for consent fails to reflect real life sexual encounters, and
that accused persons might be wrongfully convicted for rape when they could not
have reasonably foreseen they were committing a crime.43 As part of their evaluation
of the Crimes (Rape) Act (1991) (Vic), Melanie Heenan and Helen McKelvie
conducted interviews with 48 legal practitioners, of whom almost 50% expressed
some concern as to the validity and usefulness of the mandatory jury directions on
‘free agreement’ providing the basis for consent.44 A submission from The Victorian
Bar, for example, expressed concern with this model, arguing that it was not
necessary to change the meaning of consent:
We accept the proposition that the definition of consent should reflect contemporary
values about sexual relationships, such as mutual respect and communication. But it
is simply going too far – in the sense that it is not consistent with these values – to
suggest that the fact that a person did not do or say anything to indicate free
agreement to the sexual act is evidence that the act took place without that person’s
free agreement.45
Despite these criticisms, variations of a communicative model of consent have been
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41 Pineau 1989.
42 See Bronitt & McSherry 2010; McSherry 1998; Pineau 1989; Powell 2010.
43 For discussion of this model, see Heenan & McKelvie 1997; VLRC 2003. For a critique of Victorian
rape law, see Arenson 2012; Willis 2006.
44 Heenan & McKelvie 1997.
45 Cited in VLRC 2004, p351.
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incorporated in legal definitions of consent in Australia, and in a minority of
jurisdictions internationally, including New Zealand, England, Canada and Wales.
Recent Victorian Rape Law Reform
According to section 38 of the Crimes Act 1958 (Vic), a person commits rape if:
(a) he or she intentionally sexually penetrates another person without that person’s
consent –
(i) while being aware that the person is not consenting or might not be
consenting; or
(ii) while not giving any thought to whether the person is consenting or
might not be consenting …
Consent to a sexual act is defined as ‘free agreement’, and there are a number
of conditions under which a person is held to be incapable of freely agreeing,
including when there is force, fear of force, or while the person is asleep or
unconscious.46 In order to secure a conviction of rape in Victoria, the prosecutor
must prove beyond reasonable doubt that the accused intended to sexually penetrate
the victim-complainant without his/her consent, or while being aware that the victim-
complainant was not or might not be consenting, or while not giving any thought as
to whether the victim-complainant was not or might not be consenting.47
Significantly in Victoria, the inclusion of a communicative model of consent
within the jury directions – the instructions given to the jury by the judge at the
trial’s conclusion to help guide their decision-making in line with the law – has
sought to encapsulate the view that consent is not to be assumed by the absence of
physical or verbal resistance, but rather through the accused actively seeking out a
verbal or physical expression of consent. While the burden remains with the
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46 Crimes Act 1958 (Vic) sec. 36.
47 Crimes Act 1958 (Vic) sec. 38.
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prosecutor to prove beyond reasonable doubt that the accused was aware that the
victim-complainant was not consenting or might not be consenting, the law states
that an accused cannot be acquitted because s/he did not turn his/her mind to whether
the victim-complainant was consenting. Therefore, if the relevant elements of the
offence of rape have been established beyond reasonable doubt by the prosecutor
(including the mens rea element of awareness), a jury may convict where the victim-
complainant did not say or do anything to indicate free agreement to the sexual act
and where there is no evidence of injury.
Prior to the 2007 reforms in Victoria, the common response of an accused to a
rape charge was to argue that the victim-complainant had consented. On this basis,
because the focus was almost exclusively on the victim-complainant’s state of mind
in relation to consent, there was very little to be gained by an accused giving evidence
at trial, particularly given the risk that in so doing, s/he might be seen to concede to
the possibility that the victim-complainant was in fact not consenting to the sexual
act. Moreover, before 2007, the only legal guide for jurors in considering the state of
mind of the accused (and only where belief had been raised as a fact in the case)
was the jury direction required by section 37(1)(c) of the Crimes Act 1958 (Vic),
which stated that:
In considering the accused’s alleged belief that the complainant was consenting to
the sexual act, it must take into account whether that belief was reasonable in
all the relevant circumstances.48
The new jury directions have shifted the focus somewhat towards the accused
person’s state of mind and his/her shared responsibility for the negotiation of
consent, as opposed to solely focusing on what the victim-complainant did or did not
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48 Repealed with effect from 1 January 2008.
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do to resist the sexual act.49
The revised jury directions on the accused’s awareness of consent now states
that:
If evidence is led or an assertion is made that the accused believed that the
complainant was consenting to the sexual act, the judge must direct the jury
that in considering whether the prosecutor has proved beyond reasonable doubt
that the accused was aware that the complainant was not consenting or might
not have been consenting, the jury must consider –
(a) any evidence of that belief; and
(b) whether that belief was reasonable in all the relevant circumstances
having regard to –
(i) in the case of a proceeding in which the jury finds that a
circumstance specified in section 36 exists in relation to the
complainant, whether the accused was aware that that circumstance
existed in relation to the complainant; and
(ii) whether the accused took any steps to ascertain whether the
complainant was consenting or might not be consenting, and if so,
the nature of those steps; and
(iii) any other relevant matters.50
While the Victorian legislation does attempt to shift traditional
understandings of consent, in practice, there are a number of limitations to take into
account.51 In particular, while there may be greater scope for an accused to be cross-
examined on what s/he considered to constitute free agreement, this may in turn
encourage greater scrutiny of the victim-complainant’s behaviour and demeanour,
and in doing so, reinforce problematic and sexist assumptions surrounding normative
female sexuality. It is in the context of this recent reform in Victoria that we
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49 VLRC 2003, p328.
50 Crimes Act 1958 (Vic), sec. 37AAA, emphasis added.
51!As has been argued elsewhere, the impact of the jury directions upon the trial outcome is
potentially limited for two key reasons. First, as the directions arise only at the end of the trial in
the judge’s charge to the jury, there is a basis to argue that the directions are somewhat of an
‘empty gesture’ (Henderson 2013). It is questionable to what extent the jury directions can really
undo or interfere with already-confirmed understandings of the facts of a case, including those of
‘real rape’ and the meaning of consent. Second, the jury directions, particularly those regarding the
accused’s awareness of consent, contain an increasingly complex and convoluted set of statements,
which are potentially perplexing for jurors and judges alike (see Flynn & Henry 2012). Indeed, the
convoluted nature of the directions has been recognised by the Victorian Supreme Court, the
Victorian Department of Justice and the Judicial College of Victoria, who have called for further
reform to clarify the directions (Weinberg 2012). !
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undertake a discursive analysis, focusing foremost on the meanings of ‘sex’, ‘rape’
and ‘consent’ as constructed in our pilot sample of rape trials.
Reconstructing Discourses of Sex and Consent in Victorian Rape Trials
‘Free Agreement’ and the Victim-Complainant
Due to the burden of proof in criminal law, and the fact that consent (as opposed to
whether penetration occurred) is so often the central focus of a rape trial, it is not
surprising that defence strategies tend to centre on the victim-complainant. In
particular, such strategies typically attempt to highlight a lack of reliability and/or
credibility on the part of the victim-complainant. In an adversarial context, this
strategy can lead to an inherent power imbalance between the female witness and the
defence lawyer particularly within the cross-examination process which, as Conley
and O’Barr maintain, has ‘a poignancy in the rape context that is unmatched
elsewhere’.52 Defence techniques are typically designed to question credibility, raise
questions of prior sexual behaviour (despite rules prohibiting this), and suggest
complicity and deception.53 Of significance in the context of this paper, in raising
this strategy, defence lawyers commonly attempt to place blame on the victim-
complainant for the ‘misunderstanding’ regarding their level of consent. This can be
achieved by suggesting that the victim-complainant did indeed consent, or act in a
way that suggested s/he was consenting to the sexual act. In recommending changes
to sexual assault laws in Victoria, the VLRC advocated that the changes would place
a stronger focus on the accused as to ‘what he [sic] considers constituted “free
agreement”’.54 Despite this intention, the focus on the behaviour and responses of the
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52 Conley & O’Barr 1998, p32.
53 See Campbell et al. 2001; Frazier & Haney 1996.
54 VLRC 2003, p328.
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victim-complainant around the question of consent are clearly evident in the
approaches that were adopted by the defence in all our case studies where the victim-
complainant gave evidence in court.
In the case of R v W, the accused, who worked with the victim-complainant in
an aged care facility, indecently assaulted the victim-complainant on a number of
occasions, and at a later time, pushed her on a bed and forced his penis into her
mouth. During the trial, the defence repeatedly questioned the victim-complainant
about her allegedly flirtatious behaviour towards the accused:
Q: What I’m suggesting to you is that there was a flirting, sexual mischievous
relationship going on between you … What I’m suggesting to you is that
you were physically, and by words and by gestures, flirting with him?
A: No, I’m sorry, I don’t do that …
Q: What I’m suggesting again is that there was a relationship, a mutual
relationship, between you and [W] which was perhaps only of brief duration
during your working time together which consisted of making eye contact,
smiles and sexual joking together. What do you say about that?
A: I don’t have a sexual or mutual relationship …
Q: Well, sexual in the sense of flirting in that sexual way …
A: No, it’s not a flirting relationship …
Using this line of questioning, the defence attempted to present the jury with a
picture of a woman who had willingly engaged in inappropriate workplace behaviour
by flirting and making sexual jokes with the offender. On this basis, the implication
was raised that the victim-complainant was the kind of person to engage in
workplace flirting, therefore she might very well have consented to sex in the
workplace, or at the very least, her flirtatious behaviour would have led the offender
to believe that she was consenting to the sexual act. Alison Young has described this
type of questioning as a strategy of moral insinuation, where the defence attempts to
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‘impugn her [the victim-complainant’s] character’ and simultaneously ‘imply
consent’.55
Further to using this approach in cross-examining the victim-complainant,
within eight of our ten trial transcripts, defence lawyers also attempted to draw on
problematic dichotomies between the ‘real rape’ victim and the unchaste woman
who later regretted her decision to engage in the sexual act. In R v S for example, this
was achieved by focusing on the behaviour of the victim-complainant prior to the
rape, in the questioning of any witnesses. In this case, the victim-complainant had
been asleep after a night out drinking with a group of friends and awoke to find the
accused raping her. In the trial, the defence repeatedly drew attention to the victim-
complainant having danced in the flat in which the accused was present – along with
up to nine other individuals – by reinforcing the insinuation that she was dancing
‘for’ the accused. In cross-examining various witnesses, the defence fixated on this
idea, suggesting that a level of consent for the sexual act somehow followed
naturally from this ‘flirtatious’ behaviour:
Q: Would you agree with me that [the victim-complainant] was dancing around
and in front of [S]?
A: It’s a small flat, so she was dancing near [S].
Q: She was dancing near [S]?
A: Yeah.
The focus on the dancing was also evident in the defence’s cross-examination of the
victim-complainant herself. In this line of questioning, the defence sought to imply
that her actions were not only demonstrative of a woman wanting sex, but they
provided evidence of her precipitating the rape by ‘leading’ the accused to believe
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
55 Young 1998 p451.
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19!
sex was an option. This was inferred, based on her having been intoxicated and
dancing within a ‘close proximity’ of the accused.!!
The type of questioning used in R v S and R v W highlights one of the
potential limitations of the communicative model of consent. In having to establish
the accused’s state of mind as to an awareness of consent, it can allow the defence to
place a stronger focus on the alleged sexualised actions of the female victim-
complainant, thereby engaging in a process of victim-blaming, which works to
perpetuate the problematic rape myths and stereotypes within the courtroom
discourse.56 As Larcombe has argued, the problem with these and similar lines of
questioning in rape trials is that it promotes a view that women can only have
consented entirely or not at all.57 There is no possibility that, for instance, a woman
might be on friendly, even flirtatious terms with a man, yet still not consent to sex.
There is no possibility that she might desire sex under some circumstances or at
some point in time, but not at others. Any indication of sexual assertiveness or desire
thus continues to be read as consent.
In the case of R v G, the victim-complainant had attended a party and was
camping overnight. After she retired to her swag, the accused entered and, ignoring
her protests, proceeded to sexually penetrate her before leaving and returning to his
own camping area. In the cross-examination of the victim-complainant, the defence
adopted a different, but related strategy, which drew on problematic constructions of
real rape. In this example, the defence attempted to suggest that the victim-
complainant’s initial attempts at resistance were not sufficient to indicate non-
consent. Drawing on preconceived stereotypes of the ideal rape victim, the defence
attempted to raise doubt about the validity and credibility of the victim-
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
56 Bieneck & Krahe 2011.
57 Larcombe 2002, 2005.
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20!
complainant’s testimony on the basis that she did not respond in the way that a ‘real
rape’ victim would:
Q: How hard did you push him?
A: As hard as I could.
Q: Did it have any effect?
A: No.
Q: You were trying to resist him?
A: Yes.
Q: You were trying to physically resist him?
A: Yes …
Q: Did you yell out a single word?
A: No.
Q: Why not?
A: I was scared.
Q: What were you scared of?
A: Scared that he would do something else …
Q: Effectively, you lay there on your back?
A: Yes.
Q: You didn’t put your legs up?
A: No.
Q: You didn’t put your arms up?
A: No.
Q: Once again, you didn’t say anything?
A: No …
Q: But you didn’t scream?
A: No, I froze.
Q. Would you say now that freezing in those circumstances was an irrational
thing to do? … You didn’t have any injuries?
A: Not that I can remember.
This excerpt from the cross-examination of the victim-complainant demonstrates an
apparent strategy to challenge her reliability, by comparing her reaction to the rape
with a preconceived ‘real rape’ scenario that is characterised by strong physical
resistance and requisite physical injury. Despite the victim-complainant’s testimony
that she initially resisted, pushing the offender away before she ‘froze’, the
suggestion put forth was that her actions were ‘irrational’; the implication being that
her failure to resist was evidence that she had in fact consented.
The notion that the victim-complainant offers token resistance invokes the
highly gendered discourse that her initial refusals cannot be taken as non-consent,
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21!
but are rather attempts to protect her reputation. Such discourses undermine the
intentions of the Victorian law reforms in two ways. First, it subverts the definition
of consent as informed by the communicative model, given the removal of physical
injury or expressed non-consent being required to prove that a rape occurred.
Second, it undermines the legislation since the focus of consent in the Victorian
reforms is now on what steps, if any, the accused took to ascertain free agreement, as
opposed to what steps the victim-complainant took to actively – physically and
verbally – resist the accused.
A similar approach was adopted by the defence in the cross-examination of
the victim-complainant in R v R, in which the victim-complainant’s prior friendship
with the accused, which included him having twice lived with her and having
performed acts such as brushing her hair, was somehow indicative of her consenting
to the sexual act in question. This allegation was made despite the victim-
complainant claiming to have been asleep when the rape took place. In suggesting
that the victim-complainant had knowledge that the accused had feelings for her, the
defence sought to further imply that the rape was either consensual, or in some part
the fault of the victim-complainant for knowing that the accused sexualised her in
some form:
Q: So when he moved in you were, effectively, what I suggest, good friends
again?
A: Well, there’d been a long distance between us seeing each other, but, yeah,
we seemed to get along all right.
Q: You knew that he had affections for you, I think, don’t you? You knew
when he moved in, although you were good friends, he always had an
affection for you?
A: Yes, I suppose he did, but he knew it was ill-founded.
Q: No, I’m just asking you to agree or disagree with me that you knew that he
had an affection for you?
A: Yes, I knew …
Q: In that time [that the accused first lived with you], he would rub your neck?
…
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22!
A: He did on occasion, yes.
Q: He did a few times, didn’t he, in March?
A: Yeah, on occasion he did, yeah.
Q: Sometimes he’d brush your hair as well? …
A: Occasionally, yeah, while I was sitting up at the table or something.
Significantly, and a common feature of our sample cases, the focus in this
cross-examination was not on whether the victim-complainant consented to sex, but
rather what she did or did not do to encourage/discourage the accused prior to the
alleged rape occurring, including, in this case, her actions several months before the
rape occurred. This view appears to be based on two alternate models of female
sexuality: one is based on a deceptive sexual assertiveness, such as flirting and other
sexual cues; and the other on compliance and passivity, such as the expectation that a
male must coax the female into sex.
Further to challenging the actions of the victim-complainant leading up to
and during the rape, social discourses of normative female behaviour were also
prevalent in relation to the victim-complainant’s actions after the rape. Like the
earlier excerpts from R v W and R v G, the defence relied upon a range of rape myths
in R v R, despite there being no evidence of consent during the act itself.
Q: I’m just asking you, did you have three or four drinks of wine the day after
you say you’d been raped?
A: The day after, yes, I did have a few, yes. I was very upset still.
Q: Did you have three or four drinks the day after?
A: Yes.
Q: When did you start drinking the day after?
A: About lunchtime.
Q: While [R] was at your house?
A: Yes …
Q: You sat and drank three glasses of wine, did you, before your daughter got
home?
A: Yes …
Q: That was whilst [R] was there?
A: Yes, it was.
Q: Sitting in the lounge room?
A: He was in the lounge room. I was in the kitchen.
Q: Drinking wine?
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23!
A: Yes.
In addition to the repetitive focus on the victim-complainant drinking alcohol while
the accused was still present in the house, the defence sought to further highlight her
failure as a woman and a real rape victim, because she did not immediately phone the
police or tell anyone what had occurred:
Q: So your neighbour comes in, you’re sitting around having chats for a little
while, you say?
A: Yeah.
Q: In that time, you (indistinct) everything is normal. You’re chatting away as
if nothing happened?
A: I wasn’t saying much but - - -
Q: You don’t say to your neighbour, you know, “I’ve just been raped
(indistinct)”? … Why do you not say to your neighbour?---
A: ---I didn’t want to say---
Q: I haven’t finished my question, sorry. Why do you not say to [your
neighbour], why do you not confront him [R] at that time when you’ve got
the security of your neighbour standing there?
A: Because I wasn’t going to involve anybody …
Q: You did not call the police at that stage anyway, did you?
A: No, not at that point.
The delay in the victim-complainant reporting the rape to the police and her actions
in drinking alcohol and remaining in the house with the accused on the day following
the rape were put forward by the defence as a relevant argument to suggest that a
‘real rape’ victim would not have behaved in this way. On this basis, the defence
implied that her behaviour was indicative of having consented to the sexual act.
A similar approach was used in R v S in which the failure of the victim-
complainant to immediately declare that she had been raped, after awaking to find
the accused raping her after a night out, was proposed by the defence as an indication
that she had in fact consented to the sexual act, and was only concerned about
protecting her reputation and preventing her boyfriend from discovering that she had
been ‘unfaithful’.
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24!
Q: I put to you that after sexual intercourse takes place that you go back to
sleep?
A: No.
Q: What I then say to you is that what happens is that you are awakened by the
noise that was coming from the bathroom of [a person present at the flat]
calling out to [another person present at the flat]. What do you say to that?
A: No, I was awakened by [S] being inside of me.
Q: Was it the case, that you were concerned that [S] was boasting to his friends
about having sex with you?---
A: No.
Q: Is that what caused you to run out of the bedroom?
A: No.
Q: Is that what caused you to want to know where your boyfriend was and that
you wanted to speak to him?---
A: No.
Q: Did you want to say to him first, before he found out from someone else that
sex had taken place between you and [S]?
A: No, I wanted to tell him that it was unconsented [sic].
Q: Do you accept that the people that you ran into, that you asked them where
[your boyfriend] was?---
A: Yes.
Q: And that was the first thing that you said, wasn’t it?---
A: Yes.
Q: You asked them where [your boyfriend] was before you said to them that
you woke up, or that you were woken with [S] inside you, correct?
A: Yes.
The effect of these lines of questioning and strategies employed by the defence is
that social discourses of what constitutes normative female sexuality and behaviour
continue to infiltrate the courtroom discourse, despite the introduction of the
communicative model of consent in Victorian rape law. Thus even after decades of
law reform, our sample of rape trials suggests that these simplistic and out-dated
notions of sex, consent and rape continue to be expressed, accepted and tolerated.
The Accused’s ‘Awareness of Consent’
One of the primary aims of the reforms to the jury directions on consent in Victoria
was to more fairly balance the interests of the accused with those of the victim-
complainant. Specifically, the reforms were designed to overcome the strong
!
25!
tendency of juries to disbelieve evidence given by victim-complainants, and the
continuing failure of the law to achieve just outcomes in rape trials. One of the ways
in which these aims may appear to be achieved is through the requirement on the
jury to consider what steps, if any, the accused took to ascertain consent. This
requirement has subsequently allowed the prosecutor to focus on the state of mind of
the accused in the lead up to and during the alleged rape, as opposed to the focus
remaining only on the victim-complainant. As mentioned earlier, it is relatively
uncommon for the accused to testify in rape trials because the case most often relies
upon establishing whether the victim-complainant consented, thus there is little to be
gained from the accused giving evidence. However, in half of the trials we examined,
the accused did actually testify. A notable feature of these cases was a shift in the
discourse enabled by prosecutorial questioning of the accused. In particular, the
prosecutor used a tactic of repeated questioning regarding the accused’s cause for
belief in the victim-complainant’s consent, which was achieved regardless of
whether the defence led evidence of belief in, rather than actual, consent.
Accordingly, despite the reforms permitting the defence to construct a narrative of
failed or token resistance on behalf of the victim-complainant, or indeed suggest that
a prior flirtatious relationship was somehow indicative of consent (despite non-
communication at the act itself), the reformed jury directions have arguably given
prosecutors some scope to construct a higher standard of communicative consent.
In describing his relationship with the victim-complainant at the aged care
facility in R v W, for example, the accused testified as to how it shifted from being
professional to sexual. On cross-examination, the prosecutor sought to challenge W’s
claims that he ‘knew’ his sexual advances were wanted:
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26!
Q: Did anything else occur of a flirtatious nature?
A: There was flirtatious things happening but – yes, there was always flirtation.
Like I said, we would walk around, we would be smiling at each other. She
would be smiling at me, she would be leading me on. That was flirtatious. It
was all consensual … Smiling and the way she would say – it wouldn’t be
specific and as I say she would be very sly in a way. She would say things in
– I knew what she was getting at.
Q: You say you knew what she was getting at. There was no physical contact
between you and [the victim-complainant] until the first incident. Is that
correct?
A: That’s right.
Q: No handholding?
A: No.
Q: No caressing?
A: No.
In this excerpt, the accused’s responses failed to identify any active signs on the
part of the victim-complainant that might indicate consent. Furthermore, by
continuing with this focus on the accused’s state of mind, the prosecutor was able to
establish that W was unable to identify any active signs or conversations that
indicated the consensual nature of past behaviour, or any indication of future
wanted behaviour. Accordingly, any sign of a reasonable belief in consent was
minimised by the examination.
Likewise in R v S and R v R, the prosecutor adopted a similar tactic of
repetitive questioning when cross-examining the accused. In these two cases, the
prosecutor sought to establish that there had been no sexual relationship or
suggestion of a potential sexual relationship between the victim-complainants and
the accuseds prior to the rapes, or in fact, any significant relationship between both
accuseds and the victim-complainants in these cases. This can be seen in the
following excerpt from R v S which involved the rape of the victim-complainant
after a night out of drinking:
Q: Was there ever more than one text message sent to you by [the victim-
complainant]?---
A: Yes, there was.
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27!
Q: How much?
A: Don’t remember.
Q: Two, ten, 100, 1,000?---
A: Maybe between one and ten.
Q: What were the contents of those messages?---
A: I can’t remember.
Q: Did she, for example, express terms of endearment to you during those text
messages?--
A: What do you mean?
Q: Did she express a physical or romantic interest in you in any of those text
messages?
A: No.
Q: Did you express any physical or romantic interest in her by way of
telephone calls or text messages?---
A: No.
Q: So on the night [before the rape] … how many times had you actually
spoken to this girl?
A: On the phone, I think two or three times, and on Facebook regularly …
Q: Did you want to have sex with her at that time [the night before the rape]?
A: No …
Q: When you went to the nightclub [the night before the rape], did you speak to
her at all during that visit?
A: Yes, I did.
Q: On how many occasions or for how long?
A: We spoke numerous, like many times during the night.
Q: About what?
A: I don’t remember the exact conversations.
Q: Was there any conversation about romance or physical attraction to each
other?
A: No, there wasn’t.
!
After establishing that there had not been any significant signs that the victim-
complainant and the accused were likely to enter into a sexual relationship prior to
the rape, the prosecutor focused the cross-examination on how the accused could
have reasonably believed there was consent in light of these circumstances:
Q: Did you know that [the victim-complainant] was asleep in [the] bedroom?---
A: I knew [the victim-complainant] had been in the bedroom. I didn’t know she
was asleep.
Q: And you two start talking, is that right?
A: Yes.
Q: What did you talk about?
A: I don’t remember the conversation.
Q: This is a matter that has led you to being charged with rape. Do you tell this
jury on your oath that you cannot remember what was said?
A: I don’t remember the exact words.
Q: Excuse me, let me finish, if you will. Do you tell the jury on oath that you
can’t remember what you spoke about to this girl that you were about to
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28!
have sex with?
A: Yes, I don’t remember the words.
Q: How long did the conversation last?
A: A few minutes, one minute or less.
Q: You see, no conversation took place at all, did it?
A: There was.
Q: Can you give us any hint as to what was discussed?
A: It was flirting, basically.
Q: Flirting in what form? What was said?
A: I don’t remember the words exactly to be honest.
Q: Forget the exact words. Tell us the general gist of what was said?
A: Just talking and, you know, intentions of having, that is basically what I’m
talking about, flirting …
Q: But at the end of that minute or so, you had progressed the relationship so
far that you knew you were going to have sex with this girl very shortly,
didn’t you?
A: Yes.
Q: How does one do that, [S], in a minute? Tell the members of the jury how it
happens?
Similarly, in R v S, the prosecutor asked the accused to describe the lead-up to the
rape:
!
Q: What happened to you when you followed [the victim-complainant] to her
swag, you thought you’d take the opportunity that was there, didn’t you?---
A: Well, I thought it was an invitation when she knelt down.
Q: She hadn’t done anything to provoke any relationship between you and her
over the course of the night, had she?
A: Yes, she was flirting.
Q: What was she doing flirting?---
A: She was rubbing her hand up the inner side of my thigh.
Q: You say she was flirting?---
A: Mm.
Q: And you described that as involving her rubbing her hand on your knee?---
A: Yes.
Q: Anything else?---
A: Just talking. She was showing extra attention to me as [compared to] the
previous years she has at school.
Q: You hardly knew her at school, isn’t that right?---
A: That’s about right …
Q: What else did she do that in your mind indicated she was interested in you in
the course of the evening?---
A: Well, any question she had around the group it would relay ending up I
would be the main communicator between the conversations.
Q: I didn’t understand any of that, can you try and explain it for me?---
A: She’d talk about – ask about my occupation, and show extra interest into my
occupation, rather than [names two other males who were present at the
party]…
Q: What did she ask you?---
!
29!
A: Just asked, what sort of – what sort of – what involves the job, what
customers we supply for, just really detailed information.
Q: How long did that last for?---
A: Oh, five, ten minutes.
Q: Yes, over how many hours?---
A: About two to three….
Q: Any other contact stretched out over the course of the night that you’d like
to tell us about?---
A: Not that I can think of, no…
Further to highlighting the minimal nature of the physical and verbal
interactions between the accused and the victim-complainant in this case, the
prosecutor was also able to place the focus on the accused’s state of mind regarding
his actions during and after the act as a basis to suggest that this before and after-
thought should have included some consideration of whether the victim-complainant
was in fact consenting. The line of questioning adopted by the prosecutor in these
cases in which the accused testified had the effect of disrupting traditional discourses
of female availability or passive ‘ readiness’ to accept male sexual advances,
and instead, we argue, helped to construct a normative model of active negotiation
and communication of consent.!!
While a shift in focus on the victim-complainant to the accused may be just
one of many factors that contributes to securing a rape conviction at trial, what is of
interest here is that this focus on the accused person’s basis for believing there
was consent can, and is, being questioned. It is also significant that the nature
and content of this type of questioning can serve to disrupt the traditional focus
on both ‘force’ and ‘miscommunication’, which is, as we have identified, highly
persistent in rape trials. In a sense, it is the discourse of ‘male sexual prowess’, as
Pineau describes it, that is also being undermined and deconstructed, as it becomes
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30!
no longer enough for the accused to argue that s/he ‘just knew’ there was consent
in the absence of active negotiation. 58 !
Conclusion
The indications from our exploratory analysis of ten Victorian rape trials suggests
that there may be some discernible shifts in the discourse on rape taking place since
the introduction of the communicative model of consent. This model does appear to
have enabled prosecutors, at least in a handful of cases, to shift focus to the accused
person’s awareness of consent, based on the steps that they took to ascertain that the
victim-complainant was, or was not, consenting. However, discourses of victim
blaming, sexualised ideals of femininity and stereotypical perceptions of what
constitutes real rape and a real rape victim remain a persistent feature of Victorian
rape trials, even after the recent reforms. It should also be mentioned that the
Victorian reforms have not, thus far, delivered a substantial reduction in rape
case attrition or conviction rates.
As this initial analysis has been undertaken based on a small sample of
rape trials, there is a need for further analysis of a larger and broadly
representative sample of acquittal and conviction cases. This will enable a
consideration of whether the shifts we have described are more substantial and
common, or merely a feature of a minority of trials. Moreover, it will enable analysis
of whether there have been any discernible shifts in the broader discourses on rape
both within and outside the courtroom. Our analysis suggests that rape myths
continue to dictate defence strategies and continue to be accepted by jurors and
members of the judiciary. Accordingly, we suggest that an important task of feminist
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
58 Pineau 1989.
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31!
legal scholarship is to analyse the qualitative content and effects of rape law reform
and its operation in courtroom discourse, in order to support, rather than give up on,
future reform efforts. 59
If the law not only acts as a powerful indication and reinforcement of ever-
shifting socio-cultural norms and values, but is also as a reflection of broader societal
discourses, then attention to the ways in which these discourses are shifting is a key
way of evaluating the qualitative effect of law reform in this area. A discourse,
according to Foucault, comprises of ‘variants and different effects – according to
who is speaking, his [sic] position of power, the institutional context in which he
happens to be situated’; and is not simply a tool or effect of power, but as stated in
the introduction, is a ‘stumbling-block, a point of resistance and a starting point for
an opposing strategy’.60 As we have demonstrated in this paper, problematic societal
discourses on rape continue to powerfully influence the interactions and
conversations within the courtroom context, however, feminist-inspired rape law
reform has, to some extent, challenged problematic conceptions of consent and ‘real
rape’ through the introduction of a communicative model of consent based on ethical
sexual practice. Moreover, victims and other legal actors contribute to the further
shaping of these and other discourses. Of course, it is not easy maintaining the
delicate balance between the rights of the accused and the rights of victims, and as
such, further meaningful dialogue on this issue is paramount to ensure that future
rape law reform achieves the goals of social change, as well as justice for victims and
accused persons.
Undoubtedly, consent remains the most controversial, complex and contested
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
59 Larcombe 2011b.
60 Foucault 1978, p101.
!
32!
legal issue in rape cases, yet it is within a broader context of societal discourse, or the
cultural meanings regarding ‘real rape’, ‘consent’ and ‘normal sex’, that legal
determinations of what counts as free agreement, or a reasonable belief in consent,
are made. As Murphy and colleagues acutely note, changes in community attitudes
and knowledge must occur alongside any reform to sexual offences legislation.61 The
interface between law and other social spheres (such as education and policy) thus
signifies a crucial area in urgent need of further attention in future research and
intervention efforts.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
61 Murphy et al 2012.
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