Shades of Grey: Indeterminacy and Sexual Assault Law Reform
13 Flinders Law Journal 49-77, 2011
29 Pages Posted: 4 Dec 2012
Date Written: 2011
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: Suggested Citation