‘I Think it’s Rape and I Think He Would be Found Not Guilty’
| DOI | 10.1177/0964663916647442 |
| Published date | 01 October 2016 |
| Date | 01 October 2016 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2016, Vol. 25(5) 611–629
‘I Think it’s Rape and
ª The Author(s) 2016
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Focus Group Perceptions
of (un)Reasonable Belief
in Consent in Rape Law
Wendy Larcombe
The University of Melbourne, Australia
Bianca Fileborn
La Trobe University, Australia
Anastasia Powell
RMIT University, Australia
Natalia Hanley
University of Wollongong, Australia
Nicola Henry
La Trobe University, Australia
Abstract
A legal definition of rape that exonerates an accused who ‘reasonably believes in con-
sent’ is currently in force in a number of jurisdictions in the United Kingdom, Australia
and New Zealand. Limited empirical research has investigated community and profes-
sional 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),
Corresponding author:
Wendy Larcombe, Melbourne Law School, The University of Melbourne, 3010 Victoria, Australia.
Email: w.larcombe@unimelb.edu.au
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Social & Legal Studies 25(5)
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.
Keywords
Consent, rape, rape law, reasonable belief, sexual assault
Introduction
In an increasing number of jurisdictions, the offence of rape criminalizes non-consensual
sexual penetration (or ‘intercourse’) when the defendant did not ‘reasonably believe’ (or
believe on reasonable grounds) that the complainant was consenting. In theory, requiring
a mistaken belief in consent to be reasonable in the given circumstances sets a higher
standard for lawful sexual conduct than the common law mens rea for rape which
precluded conviction if it was possible that the defendant honestly believed in consent.
The subjective standard has been widely criticized – particularly since its articulation in
DPP v. Morgan [1976] AC 182 – for absolving defendants who maintain unreasonable
beliefs about women’s sexuality (see Faulkner, 1991; Larcombe, 2011; Temkin, 2002:
119). Legislative reform to institute the objective standard of reasonable belief in con-
sent is thus widely perceived in academic literature as symbolically important and as a
welcome policy measure that endorses communication between sexual partners rather
than stereotypical assumptions about the presence of sexual consent (Cowen, 2007: 60;
Lacey, 1998: 122).
Relatively little is known, however, about community and professional perceptions of the
adequacy and scope of this definition of rape – and in particular the fault standard of
‘reasonable belief in consent’.1 Is it perceived to set an appropriate standard for sexual
conduct? Is there consensus around the circumstances or factors that would make a (mis-
taken) belief in consent reasonable? The present article addresses those questions by ana-
lysing key themes from 11 focus group discussions (FGDs) of a rape definition that included
the ‘reasonable belief’ fault element. The scope of ‘belief in consent’ was further explored
through discussion of a fact-based scenario (vignette) involving former sexual partners.
There is now a considerable body of empirical rape research that explores what
conduct people label as rape, perceptions of sexual communication and responsibility,
levels of rape myth acceptance and the prevalence of victim blaming attitudes (e.g. Burt
and Albin, 1981; Gunby et al., 2012; Lonsway and Fitzgerald, 1994; McMahon and
Farmer, 2011; Temkin and Krahe´, 2008). However, the majority of rape studies elicit
participants’ own definitions of rape (and lay attributions of ‘fault’ or responsibility –
Larcombe et al.
613
see, e.g. Miller et al., 2012) or utilize a general social definition of rape as ‘forced’,
‘coercive’ or ‘non-consensual’ sex (e.g. Deming et al., 2013). Relatively few studies
(discussed in the next section) have investigated participants’ perceptions and under-
standings of a legal definition of rape. It is important to examine the latter specifically
because negative perceptions of the legal system’s response to rape complaints and, in
particular, concerns that victims’ accounts may not be believed or treated seriously by
authorities are known to inform victims’ decisions not to report sexual assaults to police
or access professional services (Cohn et al., 2013; Lievore, 2003; Patterson et al., 2009).
Perceptions that the ‘odds’ of ‘finding fairness’ in the justice system are poor (Deming
et al., 2013), or that events would not ‘meet the legal standard for sexual assault’ (Miller
et al., 2012), may also influence victims’ labelling (acknowledgement) of sexual assaults
and third parties’ responses to friends and family who disclose rape experiences (Deming
et al., 2013; Kahn et al., 2003; Lievore, 2003; Miller et al., 2012).
The present study expands on the important but limited number of studies that directly
explore people’s perceptions of a legal definition of rape and the odds it affords of securing
a conviction when the prosecution is required to prove that the defendant did not reason-
ably believe in consent. We were particularly interested in the views of professionals
working in the sexual assault sector (S) – including counsellor/advocates, health profes-
sionals and police officers – who advise victim/survivors of their ‘options’ and who
effectively act as gatekeepers to the criminal justice system. Legally trained professionals
(L; not necessarily those with expertise in criminal law or sexual offences) and community
members (C; with neither legal training nor professional experience related to sexual
offences) were also recruited to participate in the study so that we could investigate
similarities and differences in the ways that participants from the different stakeholder
groups perceive the legal definition of rape and the scope of reasonable belief in consent.
After reviewing academic and empirical research on reasonable belief in consent, this
article outlines our study methods and discusses five key findings from the FGDs.
Analysis of these findings provides rich insight into how and why rape law, starting
with the legal definition of rape, is perceived as inadequate.
Reasonable Belief in Consent in Theory and Practice
Absence of reasonable belief in consent (or reasonable grounds for a belief in consent) is
now the fault standard for statutory rape offences in a number of common law jurisdic-
tions, including New Zealand (1985), England and Wales (2003), Scotland (2009), and
the Australian states of New South Wales (2007) and Victoria (2014). This brings the law
in these jurisdictions broadly into line with the criminal law in the Australian code states
of Queensland, Tasmania and Western Australia, which have long required that a
defence of mistake of fact must be both honest and reasonable in the circumstances
(Crofts, 2007). In principle, the reasonable belief standard encourages a person initiating
sexual penetration to take reasonable care to ensure that consent is present before
proceeding (Ashworth, 2009: 341). Unlike its predecessor, it thus contributes to sexual
assault prevention efforts by supporting norms around ethical sexual decision-making
(DOJ, 2015; Henry and Powell, 2014). Whilst some have argued that an objective
standard is not consistent with the criminal principle of mens rea (see Dobinson and
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Townsley, 2008: 161), it is now accepted that a person who initiates sexual penetration
without reasonable grounds for believing in consent is not ‘morally innocent’ (DOJ,
2013: 38) given the ease with which consent can be ascertained and the considerable risk
of serious harm if one proceeds without consent (Ashworth, 2009: 341; Sjo¨lin, 2015: 34).
Law reformers have hoped that introduction of the objective fault standard for rape
would redress public perceptions that the legal system is biased against victims of sexual
assault (Cowan, 2007: 62; McGlynn, 2010: 139; Sjo¨lin, 2015: 34), thereby encouraging
more rape complainants to report their experiences to the police. It has also been hoped
that the higher, objective standard for mistaken belief would increase rape conviction
rates, which are notoriously low (DOJ, 2013; Finch and Munro, 2006; McGlynn, 2010).
However, academic commentators (e.g. Cowan, 2010; MacKinnon, 1989; McGlynn,
2010; Temkin and Ashworth, 2004) and other stakeholders (see, e.g. Carline and Gunby,
2011; Larcombe et al., 2015) have doubted whether this change in the law would, in
itself, be sufficient to change the experience of rape complainants, the conduct of
...
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