South Australia Works to Update Rape Laws

South Australia (which, for those of you who don’t know, is a state in Australia) is considering “tough” new rape laws. What this really means is that they are redefining the terms of what does and does not constitute consent:

Announcing proposed changes to the state’s rape laws, [South Australian Attorney General] Mr Atkinson said less than 20 per cent of rape and assault cases that reached the courts resulted in a conviction.

“So there may be something wrong with how we define what is a rape or a sexual assault,” he said.

“That’s unacceptable so we are changing it.”

The government’s proposed reforms would require a person’s agreement to sexual activity to be free and voluntary.

In a key change, a rape also would be committed in a situation where a person withdrew their consent after initially agreeing to sexual intercourse and the other party continued regardless.

Until now there has been a degree of ambiguity in how the courts viewed such circumstances.

The new laws also would regard sexual activity as non-consensual if obtained by force or threats, while the victim was asleep or unconscious, while the victim was too intoxicated to agree and if the victim was unable to understand the nature of the sexual activity.

They also would take in situations where the victim was mistaken about the identity of the person they were having sex with or if they were being unlawfully detained.

Judges would be required to explain to juries that consent to sexual activity should not be assumed just because the victim did not say anything, did not protest or resist or had previous consensual sexual encounters with the alleged offender.

I find this to be incredibly disturbing. Not because I don’t agree with the provisions — if I agreed with them anymore, my neck would break from all of the enthusiastic nodding. I’m disturbed that so much of this was not already written into law.

Now, I know that — incredibly sadly — situations where consent is withdrawn and yet the (usually male) partner does not stop are not always seen as rape by the criminal justice system, let alone society. I think it’s perfectly believable (though unacceptable) that the law would be vague in this area, so good for them for fixing it. As a huge supporter of the requirement of affirmative/enthusiastic consent, I also know that the law is often vague here, too. So redefining consent as affirmative and requiring judges to explain this and to dispel rape myths to juries, I think, is necessary, progressive and absolutely marvelous.

But “consent” obtained with threats is not already considered rape? The rape of a sleeping person is not already considered rape?

I mean, I’m glad that they’re taking the responsibility to fix it, and I’m sure that these ambiguities in the law are more common than we would like to know. But holy fuck, it’s 2007.

And there is another highly disturbing element: the concern over the “erosion of rights” for the accused. Seeing the history between Aboriginals and the legal justice system, I can certainly see why the particular group quoted might be legitimately concerned. But I also doubt that they’re the only ones with a problem. Surely, MRAs are going to be annoyed and sensationalist in their opposition.

Take, for example, the coverage in the The Advertiser. Other than the fact that I do, in fact, want to punish so-called “negligence” that results in sexual assault, this statement seems extremely reasonable:

The Government has more clearly defined consent in the proposed laws and Mr Atkinson said a person would not need to tell an alleged offender to stop if they decided not to continue engaging in sexual activity.

“I think a scream would be sufficient,” Mr Atkinson said.

“We don’t want to punish men for being inadvertent or negligent but we do want to punish them for reckless indifference to whether a woman was consenting to their sexual advances,” he said.

Don’t you think that a woman trying to push her partner off of her or screaming (in a frightened, not satisfied, way) during sex is a clear sign that she wants him to stop? I mean, saying “stop” is clearly a good idea. But screaming and physically trying to stop the encounter clearly qualifies a “telling” her partner that she does not want to continue, and makes one who does continue a rapist. Seems pretty basic.

But how does The Advertiser interpret this information in its headline?

A PERSON could be convicted of rape even if they had permission to have sex and were not told to stop, under tough laws proposed by the State Government.

Sigh.

Good luck, Mr. Atkinson. Fighting for women’s rights is indeed a thankless task.

0 thoughts on “South Australia Works to Update Rape Laws

  1. Michelle

    what does “We don’t want to punish men for being inadvertent or negligent” actually mean – what is Atkinson trying to say/do?

    Reply
  2. Mary Tracy9

    I agree with you. I think it’s shameful that all this had to be “added” because it wasn’t there ALREADY.

    They should change the law in the UK as well, as conviction rates are less than 5%.

    Goddess, this whole topic depresses me greatly.

    Reply

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