Reforming the Legal Definition of Rape in Victoria - What Do Stakeholders Think?

Abstract

In common law jurisdictions internationally and in Australia, the mens rea for rape has been reformed in recent decades to modify the Morgan principle that an accused who genuinely believes in consent cannot be convicted of rape, no matter how unreasonable and mistaken that belief. In Victoria, Australia, legislative attempts to modify but not abrogate the Morgan principle have created considerable confusion and undue complexity. When the Victorian government began consulting on major reforms to the sexual offences provisions, the authors designed a qualitative research project to investigate perceptions of a proposal to introduce, as the fault element for rape, absence of reasonable belief in consent. This article reports the key themes from a series of semi-structured interviews with stakeholders who have extensive practice or research-based expertise in criminal justice processing of rape cases. We investigated perceptions of the proposed definition of rape, anticipated interpretive issues, and expected benefits and limits of the ‘reasonable belief’ standard. Given that the investigated reform proposal has now been adopted, and came into effect in July 2015, our findings provide unique insight into stakeholders’ expectations of this latest reform of rape law in Victoria. Our findings suggest that it will be greeted cautiously and that it is expected, like a number of its predecessors, to introduce new ambiguities and complexities to the law of rape, while bringing only modest policy and practice benefits at best.

Keywords: reform, rape, Victoria, Australia

JEL Classification: K14