Why Her Behaviour Is Still on Trial: The Absence of Context in the Modernisation of the Substantive Law on Consent

Abstract

Two cases studies illustrate the paradox at the heart of the substantive law of sexual assault – that it is possible (i) for a woman who does not communicate her consent to be deemed to consent; and (ii) for a defendant to have a reasonable belief about a woman’s consent even though it is accepted that she did not consent, both of which undermine the concept of her sexual autonomy. In light of the research on rape myth acceptance (‘RMA’) which shows that RMA is one of the most consistent predictors of victim blame in sexual assault scenarios, this article discusses how sexual assault law reform in New South Wales in 2007, which introduced a ‘communicative’ model of consent, has been subsequently undermined by the decisions in two recent judge-alone trials. Options for reform are discussed in light of the community standards expected under a ‘communicative’ model of consent.