Journal article
Narratives of force, resistance and mistaken belief in consent in South Australian rape cases
Adelaide law review, Vol.44(2), pp.608-637
01/12/2023
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Abstract
This article explores the persistence of narratives of force and resistance in rape trials, informed by a thematic analysis of South Australian District Court and Supreme Court judgments delivered between 2012 and 2023. Reforms to South Australian criminal law in 2008 ostensibly sought to remove reference to elements of force and resistance from the legal definition of rape. However, force and resistance narratives continue to be used by prosecution and defence counsel to prove a lack of consent or to create reasonable doubt that an accused person was aware of non- consent. These narratives are not only tolerated but endorsed by the judiciary. This article argues that the use and endorsement of force and resistance narratives in this regard is problematic as it fails to reflect the reality of most rapes, ensures that scrutiny remains on victims' actions and permits accused persons to 'mistake' a victim's fear as consent. Overall, this article reflects the limits of the current law in securing justice outcomes for victims and recommends that South Australia considers comprehensive reforms to improve how its justice system responds to rape.
Details
- Title
- Narratives of force, resistance and mistaken belief in consent in South Australian rape cases
- Creators
- Jessica Schaffer - Bond University
- Publication Details
- Adelaide law review, Vol.44(2), pp.608-637
- Publisher
- Univ Adelaide
- Number of pages
- 30
- Identifiers
- 991013323328202368
- Academic Unit
- Faculty of Business, Law and Arts
- Language
- English
- Resource Type
- Journal article