The impact of introducing an affirmative model of consent and changes to the defence of mistake in Tasmanian rape trials
thesisposted on 2023-05-26, 02:49 authored by Helen CockburnHelen Cockburn
The successful prosecution of sexual offences is regularly frustrated because jurors, judges and legal counsel embrace prejudicial stereotypes about what constitutes consent to sexual intercourse. In 2004 the Tasmanian Parliament instituted reforms to the state's Criminal Code that inserted a statutory definition of consent in s 2A and imposed additional constraints on the availability of the defence of mistaken belief in consent in s 14A. These changes were amongst the most progressive in the common law world. The reforms were designed to ensure that the issue of consent to sexual conduct would be evaluated according to standards of mutuality and reciprocity and that therefore, in accordance with s 2A(2)(a) of the Tasmanian Criminal Code, proof that the complainant did not communicate consent is sufficient to establish absence of consent. This thesis looks at the way that the amended provisions are being implemented by conducting a content analysis of trial transcripts of sexual offences cases heard in the Tasmanian Supreme Court in which the determination of the issue of absence of consent was critical to the case outcome. The research also includes interviews with judges of the Supreme Court of Tasmania and legal practitioners admitted to the Tasmanian bar. The treatment of the issue of consent to sexual conduct is examined to determine whether or not it is consistent with the intentions articulated by parliament and the reform advocates. The findings from this research provide evidence that the reforms are not being implemented as intended. There is evidence that judges and counsel continue to rely on a pre-reform notion of consent and indications that the prosecution tailor cases to their understanding of the jury's preconceived views about rape, rape victims and consent to sexual intercourse. The thesis concludes that the general reluctance or inability to engage with the new concept of consent that the reforms have instituted must be addressed by providing education about the meaning and effect of the amended legislation if there is to be any hope of achieving positive attitudinal change within both the criminal justice system and the broader community.
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