Intimidation, Consent and the Role of Holistic Judgments in Australian Rape Law

Jonathan Crowe and Lara Sveinsson, 'Intimidation, Consent and the Role of Holistic Judgments in Australian Rape Law' (2017) 42 University of Western Australia Law Review 136

19 Pages Posted: 22 Dec 2017

See all articles by Jonathan Crowe

Jonathan Crowe

University of Southern Queensland - School of Law and Justice

Lara Sveinsson

Bond University - School of Law, Students

Date Written: December 19, 2017

Abstract

This article examines the circumstances in which intimidation will vitiate consent to sex under Australian rape law. It begins by summarising the legislative provisions in the various Australian jurisdictions, before surveying recent appellate case law. Existing cases can usefully be grouped into a number of categories based on the kinds of intimidation involved. There is, however, almost always some degree of overlap between the various different forms of intimidation and other factors relevant to determining consent. The article concludes by examining the reasoning process utilised by the courts in these kinds of cases. It is argued that judges rely heavily on a holistic assessment of the facts of each case to determine whether consent is legally effective. This has important consequences for how statutory definitions of rape are interpreted and applied.

Keywords: Intimidation, Consent, Rape Law, Sexual Assault Law, Intuition, Judgment

Suggested Citation

Crowe, Jonathan and Sveinsson, Lara, Intimidation, Consent and the Role of Holistic Judgments in Australian Rape Law (December 19, 2017). Jonathan Crowe and Lara Sveinsson, 'Intimidation, Consent and the Role of Holistic Judgments in Australian Rape Law' (2017) 42 University of Western Australia Law Review 136, Available at SSRN: https://ssrn.com/abstract=3090578

Jonathan Crowe (Contact Author)

University of Southern Queensland - School of Law and Justice ( email )

West Street
Toowoomba, Queensland 4350
Australia

HOME PAGE: http://jonathancrowe.org/

Lara Sveinsson

Bond University - School of Law, Students ( email )

Gold Coast
Australia

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