Abstract
The reform of rape law remains a vexed enterprise. The wager of this article is that the plural traditions and technologies of criminal law can provide the resources for a radical rethinking of rape law. Parts 1 and 2 return to the historical and structural forms of rape law reform in Australia. These forms of reform illustrate a variety of criminal jurisdictions, and a transformation in the way in which rape law reform is conducted now. Against this transformation, Part 3 takes up the technology of classification in rape law in order to generate a radical legal definition of rape—one which responds to the pain and suffering of the survivor of rape, at the same time as it holds the legal institution before the law. This has important implications, it is suggested, not only for domestic legal systems but also the jurisprudence of rape in international criminal law.
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Notes
The High Court judgment in Mabo v Queensland (No 2) (1997) 107 ALR 1 has generated new legislative regimes within which the legal ordering of settler colonies is managed. Despite this, it is a signal feature of the path-breaking judgment of Mabo (No 2) that criminal law was exempted from the reform of law that it engendered. For discussion, see Yeo (1994), Dorsett and McVeigh (2002, pp. 295–296), Rush (1997, 2005). More recently, sexual violence in indigenous communities in the Northern Territory was invoked as the justification for ‘emergency’ legislation, the suspension of legal rights and the rule of law, as well as the incursion of military and policing institutions known as “The Northern Territory Intervention” by the Commonwealth Government. See The Little Children are Sacred Report (Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse 2007) and the Commonwealth Government’s website for the “Northern Territory Emergency Response” at www.fahcsia.gov.au/nter (accessed 20 April 2009).
In this respect at least, the article assumes and continues a jurisprudence of jurisdiction that has emerged in recent years. For a founding text and conspectus, see McVeigh (2007) (the field for making sense of questions of jurisdiction, and programme of research, is usefully set out in the first chapter by McVeigh and Dorsett). In the context of criminal law, murder and sovereignty, see Rush (1997).
The relevant offence is named “rape” by law in Victoria, South Australia, Tasmania and Queensland, “sexual assault” in New South Wales, and “sexual intercourse without consent” in the remaining jurisdictions. In this article, I variously use rape and sexual assault to refer to the legal image of sexual violence throughout Australia.
The respective legislation is, as amended, Crimes Act 1958 (Vic), Crimes Act 1900 (NSW), Criminal Law Consolidation Act 1935 (SA), Crimes Act 1900 (ACT).
The respective codes are, as amended, Criminal Code 1899 (Qld), Criminal Code 1913 (WA), Criminal Code 1924 (Tas), Criminal Code Act 1983 (NT).
This distinction is in some contexts beside the point. For example, the Northern Territory is understood as a code jurisdiction but the elements of the definition of rape are the same in effect as those found in the common law jurisdiction of Victoria.
I return to this moment in section “Nationalisation/Internationalisation” in the context of a discussion of the nationalisation—putative harmonisation and unification—of criminal law in Australia.
The historical periods, as the following account indicates, are to be understood as folds rather than as chronologically distinct. For an abbreviated version of this material, see Rush (2010).
This is a reference to the English case of DPP v Morgan [1975] 2 All ER 347. The judgment is a high-water mark in the insistence on a fully subjective standard of mentality in rape (and elsewhere), as well as the claim that such a subjective standard logically requires that the defence of honest and mistaken belief in consent by the accused fully negates the mens rea of rape and so requires a conclusion of innocence if proven.
See the Crimes (Rape) Act 1991 (Vic) which came into effect on 1 January 1992. This was preceded by copious reports. In 1997, an evaluation of this legislative reform was published by the Attorney General’s Legislation and Policy Branch of the Department of Justice (Heenan and McKelvie 1997).
See the definition of sexual penetration provided in Crimes Act 1958 (Vic), s 35. It remains basically the same to this day. The most recent redefinition of sexual penetration along these lines has been in South Australia by the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill 2008 (SA).
This expression is first used by Judge Pillay in her judgment in the Akayesu case, and has been repeatedly cited since then by the expanding jurisprudence of rape in international criminal law. See Prosecutor v Jean-Paul Akayesu (Judgment, ICTR Chamber 1) Case No. ICTR-96-4-T, 02 September 1998, at Para. 597: “The central elements of the crime of rape cannot be captured in a mechanical definition of objects and body parts.” This will have implications for the taxonomy of rape law, which I return to at the end in Part 3.
This legal replacement of buggery by rape is particularly evident in the abolition of buggery created by the Criminal Law (Sexual Offences) Amendment Act 1975 (SA). At the same time as abolishing buggery, this legislation amended the definition of rape to include “penetratio per anum of a male or female person without his or her consent”. Of course, none of this is to gainsay the fact that men are raped by men but it can be remarked that such rapes are largely by men who identify as heterosexual.
This transformation was still to be worked out in the middle of the twentieth century in Wilkes and Briant (1965) VR p. 475. More generally, see Rush (1997b, pp. 188–197).
This is not specific to rape law reform. Wendy Brown has identified the reconstruction of identity politics in terms of vulnerability as a particularly prevalent cultural discourse in late modernity on either side of the ideology of progressive and conservative: see Brown (1995: Chap. 3) on the precariousness of victim status and Brown (2002) on the predicament that structures a politics that strives for rights.
The specific context for this comment is the development and trialing of two Sexual Assault and Child Investigation Teams (SOCITs) by Victoria Police in what are called 24-h multidisciplinary centres for sexual assault in Victoria. This was part of a $6 million allocation to Victoria Police by the State Government as part of its $34 million sexual assault reform package in 2006. The concern with coordinating the heterogeneous institutions with responsibility for responding to rape and sexual assault is also exemplified in the recent Western Australian report on the prosecution of sexual assaults in that state—all its recommendations and analysis are structured by concerns to address attrition by way of improved professional training and networking the various institutions (Community Development and Justice Standing Committee 2008).
The wider cultural context is that the bicententary of the English settlement of Australia was ‘celebrated’ in 1988, and saw the resurgence of a second wave of republican sentiment throughout many areas of cultural production.
An understanding of rape as a dimension of gender domination did obtain a hearing in the MCCOC reports, but not in the final form of its recommendations. It thus needs to be read together with a contemporaneous report commissioned by the Commonwealth Government’s Office for the Status of Women which, in providing what it called “a national perspective”, reviewed the law of sexual offences in the various Australian jurisdictions as part of developing a national strategy on violence against women (Bargen and Fishwick 1995).
A sense of the scope and level of debate is a conference held in Tasmania in 1980 which brought together academics, policy advocates, lawyers, social researchers, and criminologists from across Australia. The leading speaker was Virginia Nordby, the principal drafter of the Michigan legislation. See the essays from the conference collected in Scutt (1980).
Consider for example the recent approach of the Victorian Law Reform Commission to reforming the law of sexual offences (VLRC 2001, 2003, 2004). The most obvious use of an international frame of reference to model piecemeal technical changes is their treatment of the issue of honest and reasonable belief in consent (see VLRC 2003, 2004).
See also Rush (2010, pp. 242–243).
This is particularly evident in the lack of any sustained engagement with the formal structure of the legislative regime of sexual offences, as well as the structuring of the offence definitions of rape. In Part 3, I argue that this lacuna provides as yet unused resources for a law reform which wants to respond to both the institutional responsibility of criminal law as well as the experiences of women.
Compare Graycar and Morgan (2005) who have forcefully argued that law reform in Australia—their examples come from criminal law and family law in particular—has eschewed conducting its practice of reform by reference to the way law works in context and by reference to the experience of women. As they argue: “An approach to law reform that is driven by a thematic conceptual approach, either via expansive terms of reference, or via an interrogation of legal categories by reliance on detailed social research, is more likely to respond to the concerns of women.” (2005, p. 403).
The majority of violence reported by men against them was coded as physical rather than sexual. This statistical coding, however, blurs the way in which men’s violence against men is often sexual rather than gendered—heterosexual and homophobic.
For a theoretical reappraisal of the concern with attrition in rape law, see Bluett-Boyd, Rush and Young (forthcoming, paper on file with author).
This slippage between the fact of attrition and the morality of increasing conviction accounts, in many respects, for the adversarial or polemical tone of the rape law reform arguments. It also provides a pathway for the appropriation of rape law reform by a ‘law and order politics’ (on which more generally, see Part 2.2).
Instead of the VLRC, it relied on a non-independent parliamentary committee. And in the context of sexual assault sentencing, its research took the form of a populist survey conducted by the Attorney-General through the Herald Sun, a tabloid newspaper.
Although the Mitchell Committee recommended its partial abolition and legislation implemented this recommendation, it was not until 1992 that the marital immunity for husbands was completely abolished in Australia. For judicial discussion of its abolition and history, see R v L 1992, 103 ALR 577. For the contemporary experience of partner rape in Australia, see WHGNE 2008.
The offence is defined in s. 61JA Crimes Act 1900 (NSW). The appeal against sentencing in this case is AEMSnr, KEM, MM [2002] NSWCCA 58.
Others would be drink-spiking in clubs and the right to party (Watson and Lawson 2002), and confidentiality of counseling records.
Consent is ungrammatical in these legal contexts. Whether or not there was consent is not to the point in serious forms of assault. In minor forms (often charged as summary offences in Australia), a defence of consent is available. This is juridically justified as a concession to the ‘common intercourse’ of everyday life. This is, however, a red herring in the context of rape law reform.
The concern with ‘giving voice’ is a common one in rape law reform projects. Clark and Quadara (2010) have recently taken up and elaborated this concern in the context of prevention. What is provided here is a way of registering the project of giving voice in a juridical idiom of definition.
This definition, and its supporting arguments, were initially presented in a submission to the MCCOC discussion paper on the model criminal code’s division of sexual offences (Rush and Young 1997). This caused some confusion and disavowal on the Committee’s part (MCCOC 1999: pp. 27–29). A revised version was the subject of a VLRC roundtable on their reference on the law of sexual offences (Rush and Young 2002; VLRC 2003: Chap. 7).
Crimes Act 1958 (Vic) sections 37A and 37B.
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Acknowledgments
Acknowledgments and thanks to Maria Elander, Gina Heathcote, Elena Loizidou, Shaun McVeigh, Jenny Morgan, Alison Young, and two anonymous referees for their responses to and divergent framing of this article and its argument.
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Rush, P.D. Jurisdictions of Sexual Assault: Reforming the Texts and Testimony of Rape in Australia. Fem Leg Stud 19, 47–73 (2011). https://doi.org/10.1007/s10691-011-9170-9
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DOI: https://doi.org/10.1007/s10691-011-9170-9