Consent and the Law

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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.

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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.

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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.

2 thoughts on “Consent and the Law

  1. If you look at how the law has been revised it is mainly a good step forward in prosecution, allow for less wriggle room on terms, definitions and more concise defences needing to be put forward. The main issues are in the length and degree of sentencing and in where people see the role of the victim in cases like these.

    Like many civil cases, sexual assault and consent often can come down to two differing opinions of events with varying degrees of evidence and in many times the thought process (be it inhibited, during or after the event) of those involved. The victim in cases like these will always be held to some level of responsibility for the event, as horrible as that may sound, due to this differing of opinion and the risk of false accusation for these crimes being perceived as high, especially with stricter appeal structures now in place.

    The other issue is one of social education and perception still these days, the rate of prosecution and victims, defendants and sentencing times still falling on visible ethnic, economic and gender, sex or sexuality based lines.
    Children are the most likely victims. As adults Women are assaulted at a 1:4 rate to Men. Men are the most likely offenders. Men are still more likely than Women to be falsely accused and Women to get lighter sentencing. The wealthy and high profile are more likely to be found innocent (be accusations true or not).
    In a 2005 report 0.3% of the population had experience sexual assault since turning 18 but horribly of the 44,000 victims there were 72,000 reports, highlighting the at risk nature of these victims.

    Perhaps the most dire things that need to be looked at socially is the fact that this is often perceived as a problem for major cities, but statistically the further away you live the higher the incident rate becomes.
    For me the worst thing is seeing who are among our most at risk groups.
    Young girls and children, Aboriginal women, those with disabilities and members of the LBTIQ community. Most of these already being marginalised groups and all incredibly vulnerable comparable to others within our current society.
    While the saddest is that roughly 86% of Women in prison have been sexually assaulted, while the Male figure is unknown.

    Until we recognise and understand these and many of the other issues surrounding sexual assault and the terms of consent of all involved along with their ability to understand at the time before, during and after the act will we be able to see consistent and fair judgement made on what is a difficult and emotionally charged issue within modern legal practice and social discourse.

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    1. I think that’s the thing about sexual assault discourse: it’s so involved, with so many different ideas and attitudes at play, that any attempt to address it is going to come up short. Each of the issues you’ve addressed above is treated separately, rightly or wrongly, rather than being folded into the larger discourse. It’s a struggle that we don’t do very well with, because the instinct is to try to simplify the issue to make it easy to talk about, even when it can’t and shouldn’t be simplified.

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