As much as I’m not sure about pitching us all straight into the deep end with this little blog, that’s kinda what this Worldly category is all about. We’re people, we live in this world, and we care what happens in it. Sometimes even enough to rant about it to anybody who stays still long enough to hear.
I’m a law student, something you’ll probably hear a lot about if you stick with us here at Eat Craft Nerd. I’m still in that sweet spot where every new topic is thrilling, but regardless of that, there’s something about the safety net created by a codified set of social obligations that is satisfying. It’s not about restricting people’s behaviours – it’s about holding people accountable for the actions (and lack of actions) that negatively impact other.
Hence why I’m writing this post in particular – my rant about the new sexual assault laws in Victoria, our home state, condensed (finally) into a manageable, informative blog post.
I was in the middle of my Intro to Criminal Law unit when the new legislation was introduced on July 1st, 2015. The new legislation is simpler, easier to prosecute, and harder to appeal – the latest in years of revisions to that purpose. It changes how consent is both defined and treated in a court of law, and puts the evidential onus on the defendant to prove consent. It also introduces a couple of other things, such as a course of conduct charge which makes it easier to prosecute repeated offences, and changes to sexting laws which mean that consenting teens will no longer be placed on the sexual offenders list for sexting their peers. But the changes to the way consent is defined and treated are what I’m going to focus on today.
Of the whole miasma surrounding sexual crimes, the question of consent is the most sticky. This comes from (among, I’m sure, many other cultural and societal conventions) the legal treatment of women as the property of men. As recent as 1980, certain sexual crimes were prosecuted only because the rape of a woman diminished her value as a bachelorette or a wife. (In 1980 Australia finally codified marital rape as a crime. Thank God that’s over.) So for a long time, the issue of consent wasn’t even an issue. Since consent has been introduced as a component of sexual assault, it’s been defined and redefined as social attitudes to consent – and to women – have changed. For the most part of the 20th century, rape was considered to be an act against the victim’s will – and so could only be proved if she had visible defensive injuries. It was considered that if a victim didn’t fight back, she must have consented.
As my brother would say, it’s bullshit. And thankfully, it’s changed.
The thing with free agreement is that it’s more than the absence of the word “no,” and that’s why these legislation changes are so important. A person can consent because they feel they have to, because their income is threatened, because they’re afraid of the consequences if they don’t. They can be so wasted that they go along with whatever you say, or be naive enough to not understand that an act is sexual. The legislation changes require a defendant to detail the steps they took to procure free and real consent – and if these were insufficient, there can be no consent. On the other hand, the requirement that the defendant’s belief in consent be reasonable means that the actions and circumstances of the victim are still under fire. The defendant not only has to outline why their belief in consent was reasonable – including the steps they themselves took to procure consent – and if a jury considers those to be reasonable (if indeed that’s what the jury has to determine), then the defendant cannot be found guilty.
It’s shitty, and so far from perfect that it’s infuriating. But when your maximum penalty is, say, 25 years’ imprisonment (I’m pretty sure that’s the case in Victoria), you’ve gotta be sure before you throw away the key.
It’s not perfect. But any step we take towards a more equal system, one where the onus is on the committer of a crime, rather than the victim, is a good thing. The current way women’s rights conversations are going, with more visible women standing up, debate that includes women from all backgrounds demanding the same things that men receive as a matter of course, reaching out and involving men in a conversation that yes, actually, does impact them – all of this is a step in the right direction. The new legislation supports the way that popular thinking is moving, that women have more autonomy than just what society wants to give them, and that they have the right to have our justice system stand up for them.
It’s not perfect. But it’s better. And that’s all we can do – little steps that make things better, ever onward until we get where we’re heading.
The illustrations throughout this post were taken from the original serialised version of Thomas Hardy’s Tess of the D’Urbervilles.