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

QUT Law Review, Vol. 15, No. 2, 2015

21 Pages Posted: 9 Sep 2016 Last revised: 10 Mar 2017

See all articles by Wendy Larcombe

Wendy Larcombe

University of Melbourne - Law School

Bianca Fileborn

La Trobe University - Australian Research Centre in Sex, Health & Society

Anastasia Powell

RMIT University

Nicola Henry

La Trobe University

Natalia Hanley

University of Melbourne

Date Written: September 8, 2016

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

Suggested Citation

Larcombe, Wendy and Fileborn, Bianca and Powell, Anastasia and Henry, Nicola and Hanley, Natalia, Reforming the Legal Definition of Rape in Victoria - What Do Stakeholders Think? (September 8, 2016). QUT Law Review, Vol. 15, No. 2, 2015, Available at SSRN: https://ssrn.com/abstract=2836342

Wendy Larcombe (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Bianca Fileborn

La Trobe University - Australian Research Centre in Sex, Health & Society ( email )

Level 2, 215 Franklin St
Melbourne
Australia

Anastasia Powell

RMIT University ( email )

124 La Trobe Street
Melbourne, 3000
Australia

Nicola Henry

La Trobe University ( email )

Department of Economics and Finance
Victoria 3552, 3086
Australia

Natalia Hanley

University of Melbourne ( email )

185 Pelham Street
Carlton, Victoria 3053
Australia

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