The media turns a blind eye to new Victorian rape law
Rape & Sexual Assault
Comment by Saúl A. Zavarce
In the typical mad rush by state governments to pass as many laws as they can prior to election, Victoria is tying up loose ends, passing as many of the least problematic laws it can.
Much has been made of the Government’s progressive law which will erase the convictions of historical gay sex charges as of July 1, 2015.
What was not covered, tellingly of the patriarchal rape-culture we live in, is that Victoria has a new law defining rape:
(1) A person (A) commits an offence if—
(a) A intentionally sexually penetrates another person (B); and
(b) B does not consent to the penetration; and
(c) A does not reasonably believe that B consents to the penetration
The intent of the law was to simplify the definition of the law from the previous 1991 definition, which contained the statement that:
“the fact that a person does not say or do anything to indicate free agreement to a sexual act is normally enough to show that the act took place without free agreement; and
“a person does not freely agree to a sexual act just because they did not protest or physically resist it, or was not physically injured, or had on a previous occasion freely agreed to sexual contact, or on the occasion in question had agreed to another sexual act.”
Great, get rid of the idea that a lack of a no means a yes. But what we have been left with is a joke of a rape law, one which hands the power to the rapist to define the act based on their subjective understanding of consent.
The most obvious issue with the law is Clause C, that the rapist does not reasonably believe that the victim consents to the penetration. It would be a jury that would decide if it is true that the rapist reasonably held this belief.
The problems should be obvious: alcohol, “blanket consent” in relationships, lack of objections etc etc are all examples of factors that can muddy the waters in proving not just consent, but also a reasonable belief in consent.
To my understanding, ignorance to the definition of consent, when it can and cannot be given could potentially be used by a defence to imply that to the best knowledge of the rapist they were given consent.
Considering that in our culture, consent is typically understood to be given by a lack of a “no” or protest, it is not that farfetched to consider that there are men out there who believe they are not rapists because they do not understand the meaning of consent.
Something that is reflected in the famous 2009 study in which found that 6% of men would admit to rape if the word rape was not used in the question.
Even if a prosecution could defeat such a defence with relative ease, the fact is that the line of questioning opened up by the requirement to prove a “reasonable belief” will lead to victim blaming and indecent and offensive questions asked of the survivor should the case reach court.
Defence lawyers could ask several victim-blaming questions such as “why did you stay at his house?” “why didn’t you say no?” “witnesses claim you were drinking with him and flirting with him all night,” etcetera.
And that is really the biggest failing of the law, it is as patriarchal as it comes, placing the power of the definition of the act on what the rapist’s subjective experience was over what survivor’s experience. It is another example of patriarchal power and the privilege men receive, especially in situations of rape.
This law stands in stark contrast to the recent law change in California just last month in which an affirmative yes is required by both parties in order to consent.
That and at the risk of being ‘that guy‘ bringing up men in this topic, this definition of rape precludes male rape by women and perhaps even by men.
The requirement of sexual penetration is not necessary for something to be classed as sex and forced fellatio and penetration of another person or animal is also rape if one does not consent to it.
Ultimately the silence by the media on this law is testament to the rape culture in which we live in. Rape is so normalised and not news worthy that the negligible threat of “terrorism” is far more worthy of news.
This is despite the fact there were 2144 rape offences in 2013-2014, a 3.7% increase from 2012-2013 and terrorism has killed exactly zero Australians since 2004.
Where is Australia’s “If you see something, say something.” campaign for sexual violence and domestic abuse?