‘I Think it’s Rape and I Think He Would be Found Not Guilty’

Abstract

A legal definition of rape that exonerates an accused who ‘reasonably believes in consent’ is currently in force in a number of jurisdictions in the United Kingdom, Australia and New Zealand. Limited empirical research has investigated community and professional perceptions of the adequacy and scope of this definition of rape. The present study contributes to qualitative research on ‘reasonable belief in consent’ by analysing key themes from 11 focus group discussions with professionals working in the sexual assault sector (counsellors, health professionals, victim/survivor advocates and police officers), legally trained professionals and community members interested in rape law reform. Across these backgrounds, participants expressed dissatisfaction with this definition of rape because the scope for reasonable belief in consent was seen as overly broad. In particular, participants expected that jurors would draw on a presumption of ‘implied’ or ‘continuing’ consent between former sexual partners to find that belief in consent was ‘reasonable’ when the victim did not protest or resist the assault. As a result, many of our participants were critical that the rape definition effectively maintains the onus on a rape victim/survivor to unequivocally demonstrate non-consent. Participants advocated further law reform to give effect to a more ‘affirmative’ or communicative concept of consent.