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The case against rape

Updated: Aug 10, 2021

Laws were invented by men for men, to protect their property. They were not created to protect the rights of women, children and those without property. It follows that sexual assault laws were created to protect women as the property of men, and as such, were skewed in favour of men.

Thankfully feminist advocacy from the 1970s highlighted flaws in the law, which presented a one sided view of sexual relations. Due to the feminist movement, sexual violence and child abuse emerged as significant issues during the 1970s. Resultantly, significant amendments were made to Australia’s sexual offence legislation during the 1980s and 1990s. Since the 1980s advancements in the rights of LGBT+ people have also transpired. Before then, the only group of people who were undoubtedly protected against sexual predators and sexual vilification were heterosexual men.

Today in Australia rape laws differ between states. In NSW, Victoria, SA and the ACT, the prosecution must prove, in addition to sexual penetration without consent, that the accused knew that the victim was not consenting or could not consent. Until recently, a defendant who could prove an honest belief in consent (however unreasonable) would be acquitted of rape.

So basically consent was assumed to be present unless evidence existed to prove otherwise.

It was not unlike property law which states that theft is not theft if the person who takes the property believes he has a legal right to that property, or if they honestly believed the owner would not have minded the taking of it. Rape laws were written as if our vaginas are property, and men, who honestly believed we don’t mind sharing, don’t see the act of rape as a crime. And yet the issue of consent is not so grey in property law. If a person is unconscious, do we assume that they consent to have their wallet taken? Obviously not. So why is the issue of consent such a grey area in sexual assault claims?

The focus on consent, and the way in which consent is structured in law, has been the subject of considerable criticism. The objective of the current system is to draw attention to the actions and behaviour of the complainant rather than the perpetrator. The victim is sexually vilified, her sexual history paraded in court for all to see. “The victim is always on trial. Rape is treated very differently than other felonies, ” says Rebecca Campbell, a US professor of psychology. A woman’s credibility is what’s on trial.

Concern about the fabrication of rape is a reasonable fear for men and results in the perseverance of the ‘revengeful woman’ typecast. While it is difficult to determine what percentage of accusations are false, studies estimate it to be less than 2% of reported cases. Whilst false allegations are rare, their potential existence generates a high level of fear which further fuels a biases towards not believing women and children who make sexual abuse claims.

Sexual predation from other men may also be of concern for heterosexual men. Queensland was the last state to decriminalised sodomy in 1990, although the age of consent remains at 18, as opposed to 16 years for vaginal intercourse. Before 1972 any man that was raped was protected by sodomy laws, regardless of whether he ‘asked for it’ by running around butt naked in the locker room. A male victim’s marital status, his age and his ability to consent were not factors that mitigated the seriousness of the sodomy charge. Sodomy was illegal and that was that, which suited heterosexual men just fine.

The laws governing sexual relationships have come a long way since the 1970s. Prior to the 1980s rape within marriage was not considered a crime. In 1981, NSW was the first state to fully remove the marital exemption to rape and by 1991, the High Court of Australia ruled that the common law marital exemption didn’t exist across the board. The removal of this marital exemption has increased the visibility of domestic violence as an important and widespread issue.

Of late, laws have been amended to increase protection for child sexual abuse victims. Until recently, a three year time limit generally applied to victims of childhood abuse. This was despite the fact that survivors of childhood sexual abuse take an average of 23 years to speak out. Now the statute of limitations has been removed in Victoria and NSW, meaning that adults who suffered abuse as a child now have access to legal recourse. Hopefully the other states and territories across Australia will shortly follow suit.

While these advancements in the law are welcomed, they are also long overdue. More reforms must be made to protect everyone from sexual violence, domestic abuse and sexual vilification.

For more information see The Australian Law Reform Commission (ALRC)


Image: detail "Dripping in Pearls," 2015, by Leah Mariani

Leah Mariani in artist studio

About the author

Leah is a financial professional turned artist. She creates artwork about fashion, feminism and family. You can follow her on Facebook and Instagram @leahmarianiartspace. Sign up for artist news and updates from Leah here.

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