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Shades of Grey: Indeterminacy and Sexual Assault Law Reform

13 Flinders Law Journal 49-77, 2011

29 Pages Posted: 4 Dec 2012  

Jessica Kennedy

University of Canberra

Patricia L. Easteal

University of Canberra - School of Law and Justice

Date Written: 2011

Abstract

This paper discusses the theory behind legal indeterminacy, the need for it in Australian law, and how it can affect the implementation of legislative reform. A sample of sexual assault law reform provisions that were enacted to better protect victim witness from retrauma are deconstructed to demonstrate their statutory indeterminacy. We then examine the ways in which the greyness of these laws has facilitated and/or could affect judicial discretion, which from a feminist perspective, is exercised within a context replete with beliefs about ‘real rape’ and the accused’s right to a fair trial.

Keywords: judicial discretion, legal indeterminacy, sexual assault law reform

JEL Classification: K00

Suggested Citation

Kennedy, Jessica and Easteal, Patricia L., Shades of Grey: Indeterminacy and Sexual Assault Law Reform (2011). 13 Flinders Law Journal 49-77, 2011. Available at SSRN: https://ssrn.com/abstract=2181787

Jessica Kennedy

University of Canberra ( email )

Canberra, Australian Capital Territory 2601
Australia

Patricia L. Easteal (Contact Author)

University of Canberra - School of Law and Justice ( email )

Australia
+61 (0)2 6201 5779 (Phone)
+61 (0)2 6201 5764 (fax) (Fax)

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