The new definition of rape

For a word that holds so much power, it is often forgotten that there is no universally agreed upon definition of ‘rape’. While the history of sexual violence predates the naming or formal sanctioning of the act, since Roman times the word itself has been claimed as a concept of law defined by a succession of kings, emperors and holy men. Its meaning differs across state and country borders – a reflection of attempts by each society’s lawmakers to identify the boundaries of behaviour they accept, tolerate and condemn.

The devaluing and shaming of women is built into the origins of rape laws. The earliest use of the word reveals women’s status as property, referring to the ‘carrying off of a woman by force’ as a theft from her husband or father. Babylonian law regarded victims as adulteresses and sentenced them to death, non-virgins were ineligible to be considered victims under Henry II’s reign, slaves were legally ‘unrapeable’ in nineteenth-century America, and rape within marriage was not uniformly outlawed in Australia until 1991. There have been so many ways that women’s racial, religious or social status has excluded them from having their experiences formally recognised. There have been so many ways in which women have been shamed.

Definitions of rape continue to evolve and a new formulation introduced in Victoria last month provides both the most progressive legal meaning in the state to date, even as it exposes the limits of what the law can achieve.

This new Victorian definition, which commenced 1 July, refines and simplifies the existing offence, clearly specifying the three elements that must be found for the state to establish that a person is guilty of rape. First, the accused person must have committed an act of penetration. Second, there must not have been consent to that act. Finally, it must be established that the accused person did not ‘reasonably believe’ that consent had been given. Whether this ‘reasonable belief’ is present ‘depends on the circumstances’, namely the steps the accused took to establish whether or not there was consent. For two people initiating a new relationship, these steps may require asking and receiving a clear ‘yes’ to sex. For those with a long-standing relationship, the steps might be very different, relying on the subtle cues developed within a couple’s shared history of intimacy.

This last element reflects a dramatic legal shift in how an accused’s belief in consent impacts their culpability. In recent times, the enquiry into the accused’s mindset has focused on whether they thought consent had been given – belief that consent was present might have simply reflected feelings of entitlement to sex, but if they truly held that belief, then they would not have fallen within the definition of the crime.

The change has been largely welcomed by advocates against sexual assault for making clear that it does not matter what the accused interprets as ‘reasonable’. Now, the circumstances described must make an accused’s belief that consent existed ‘reasonable’ to an objective outsider. Supported by both Victoria’s successive Liberal and Labor governments, this new element to the law brings the state into line with several other Australian jurisdictions, as well as the UK and New Zealand, and comes after years of calls from victim’s rights groups and the judiciary, who felt that the law was placing too much value on the subjective view of the accused person alone.

This legal change aims to capture those who were slipping through the cracks of rape laws. Disrupting this mentality of entitlement particularly targets relationships where the perpetrator is known to the victim and more likely to presume consent – that is, 87.7 per cent of sexual assaults against women in Australia. This new definition will also likely see rape prosecutions resulting in more convictions, which for a system that has seen an 81 per cent increase in the number of trials for sexual offences over the past decade, is fundamental to build trust in the courts and encourage victims to make formal complaints.

And yet for all the progress that this formal definition makes, it can still only accomplish as much balancing of the perspectives of victim and perpetrator as the law allows.

As recent reflections from Alison Croggon and Kate Hall highlight, the experience of giving ‘feigned consent’ to sex – reluctantly ‘going along with it’ – is devastatingly common, and largely the product of uneven power dynamics and sexual entitlement.

Yet this experience of violation is not, cannot ever be, captured by rape laws. The law focusses on the mentality of the person accused of the act, as well as the experience of violation suffered by the victim. This is the purpose – and the limitation – of the law. It seeks to establish whether an act occurred, and whether there was culpability in the mind of the person accused of that act. A person cannot be put on trial without enquiring as to their intention if they are to receive due process and if their legal and human rights are to be respected. When the giving of ‘feigned consent’ is considered, the gulf that exists between the perpetrator having the ‘reasonable belief’ that consent has been freely given and the violating experience of only providing that consent in order to be obliging is revealed.

Consent should not exist along a continuum between eager and acquiescent. But consent that is half-hearted is still consent for the purposes of the law.

The principles of justice require the definition of rape to have regard to the mindset of the accused person – but there is no need for survivors to have this same regard when naming their own experience. A survivor does not need to have their power compromised by having to consider, let alone care about, the perspective of the person that violated their rights. The new legal definition of rape fulfils its function as best it can, but the word also has a meaning and legitimate usage that can extend far beyond the law’s ambit.

As Croggon and Hall demonstrate, the word ‘rape’ is one that is being freed from its legacy as a concept of law defined by those in power, and is increasingly being claimed by survivors. This naming makes clear that even if the law doesn’t consider it criminal, the dynamics that lead to consent being given out of obligation are still not permissible.

Just as the change to the legal definition may encourage increased prosecutions and reporting of the crime, this naming of sexual violation can encourage increased understanding that it is not the law alone that defines what sexual behaviours we deem unacceptable. Naming these acts highlights and advances the need for this culture of entitlement to change.

Croggon writes that ‘power keeps the magic of naming for its own use’. In spite of new definitions, more and more this power is being taken by survivors. The new meaning emerging from it is one that recognises the inherent limitations the law can give to the meaning of words and instead relies upon self-recognition. It is one that reveals the only people with the power to truly define the word ‘rape’ are those who can recognise their own experience reflected in it.


Carla Silbert

Carla Silbert is a Melbourne-based writer and policy adviser. Her work is focused on social justice and gender equality.

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