What would give a man a reasonable belief that the woman he’s with is freely and voluntarily consenting to his demands? A series of recent rape cases have drawn attention to the fact that, contrary to popular understanding, when it comes to rape convictions, consent is very much in the eye of the accused rapist.
NSW Criminal law defines consent in sexual assault cases as “freely and voluntarily” agreeing to sexual intercourse. Conviction for sexual assault requires proof the accused knew the victim didn’t consent, or was reckless as to whether they consented, or had no reasonable grounds for believing they didn’t consent. It’s up to the judge or jury to deliberate on what those “reasonable grounds” might be.
The limitations of this rule was thrown into sharp relief this month when Luke Lazarus was acquitted of rape after a re-trial. The judge accepted the victim didn’t consent to sex, but the prosecution couldn’t prove Lazarus knew she didn’t consent.
The teenage victim in the Lazarus case gave evidence that she told him she wanted to return to her friends, that she said stop, and that Lazarus said “in an authoritative tone, ‘put your fucking hands on the wall, get on the floor and arch your back'”. The judge did not find this evidence reliable, but did agree that “she was starting to feel she was in a difficult situation”.
She was 18 years old, inexperienced, scared, and a man had sex with her when she didn’t want him to. These facts were accepted by the court – and yet it’s not enough to convict him of sexual assault.
The reasonable belief test also opens victims up to terrible experiences in court.
Last year, the 21-year-old victim of Mitch Peggie, 26, was asked whether she was “moaning and gasping” with pleasure during the rape. She was told that wearing “sexy lingerie” implied she intended to have sex, and photos of her underwear were shown in court.
The defence lawyer insisted she was lying about the rape because she wanted revenge on Peggie for treating her “like rubbish” after consensual sex. When she said she masturbated him because she was scared he would hurt her and hoped it would placate him, it was used against her as evidence she was a willing participant.
Peggie’s conviction and seven-year sentence was a rare win, he’d been acquitted over a remarkably similar incident just a week before he raped the 21-year-old.
These are common tactics in rape cases. Research shows “victim blaming, sexualised ideals of femininity” and myths about “real rape” are consistently used as a defence in rape trials.
Law reform for sexual violence is not about changing the basic tenets of justice that underpin our legal system – no one wants to live in a society where the presumption of innocence isn’t extended to every citizen. The burden of proof for criminal acts should be high and wrongful convictions should be rare, if not impossible.
The problem is not in those principles, it’s in the court and society’s understanding of what is a reasonable belief about sex and sexual partners.
We need to retire the idea of the mythical “real rape” that only happens when an innocent young girl, who is conservatively dressed, sober, suffering no mental or physical disabilities, is attacked by an identifiable monster, who uses weapons or physical violence to forcibly rape her. She fights back, receives injuries and reports it to police immediately afterwards. And she cries every time she talks about it.
The truth is that very few rapes happen like that. Most rapes happen in private homes and most victims know the man who raped them. Alcohol is frequently used as a weapon in rape (although it is never the cause of it) and rapists don’t look like monsters, they look like Brock Turner and Mitch Peggie. Rape is not about sex, it’s about power and control. It’s common for victims to need time before they are able to tell anyone about a sexual assault, and shock or fear can often display as numbness or lack of emotion.
But a study by Vic Health found that only 50 per cent of young men believe a woman is more likely to be raped by someone they know than a stranger, and that belief has become more common, not less, over the last 20 years.
Forty-two per cent of men agree with the statement: “A lot of times women who say they were raped led the man on and later had regrets,” and nearly 20 per cent agreed that the woman bears some responsibility if raped while she is affected by alcohol and drugs.
Forty per cent of people agree that “rape results from men not able to control their need for sex”.
We’ve spent years changing the way people think about domestic violence. What used to be thought of as a private matter or a series of unrelated incidents is now better understood as a social issue, entrenched in a power imbalance most commonly found in gender inequality.
The spectrum of sexual violence, from catcalling to rape, is the same social issue, with the same power imbalance at its core. And perhaps it’s time for us to realise it needs just as much public education and awareness to tackle.
So, what would give a man a reasonable belief that the woman he’s with is freely and voluntarily consenting to his demands? Do we think it is reasonable for a person to first consider whether their partner is willing? Or, is it reasonable for men to assume that all women want to have sex with them unless they forcefully reject it? Is it reasonable for women to have to display forceful rejection in situations where they are afraid?
Anyone who has ever had good sex knows that asking their partner if they like what is happening doesn’t get in the way of a pleasurable encounter.
Believing this question is something all reasonable people ask, and that every reasonable person genuinely wants to know the answer to, is all the change we need to reform the law.