It’s All or Nothing: Consent, Reasonable Belief, and the Continuum of Sexual Violence in Judicial Logic

AuthorAshlee Gore
DOI10.1177/0964663920947813
Published date01 August 2021
Date01 August 2021
Subject MatterArticles
Article
It’s All or Nothing:
Consent, Reasonable
Belief, and the Continuum
of Sexual Violence in
Judicial Logic
Ashlee Gore
Western Sydney University, Australia
Abstract
This paper discusses controversies over the reasonable belief in consent defence to
sexual assault shared by many common law jurisdictions. The implementation of a
‘reasonable’ belief standard has been heralded as a safeguard against rape myth narratives
that endorsed men’s unreasonable but ‘honest’ beliefs in women’s consent. This paper
argues that judicial constructions of reasonable belief in consent continue to apply
notions of reasonableness abstracted from the social context of women’s experience of
sexual violence and disconnected from sociological insights which contextualise both the
encounter and jury decisions. Using a feminist sociocultural analysis (Gavey, 2005; Kelly,
1988), the successful appeal in the case of R v Lennox (2018 Queensland, Australia),
against his conviction by a jury is discussed. The reasoning in the Lennox appeal reveals
that overriding judicial constructions of women as incredible in their communication of
non-consent, and the prevailing legal dichotomies of consent, and credibility as ‘all or
nothing’, undo the progressive potential of the standard of ‘reasonableness’ in consent
law and reinforce the phallocentrism of legal discourse.
Keywords
Consent, continuum of se xual violence, cultur al scaffolding of rape, pha llocentrism,
reasonable belief, sexual assault, sexual violence
Corresponding author:
Ashlee Gore, Western Sydney University, 100 Macquarie St, Liverpool NSW 2170, Australia.
Email: a.gore@westernsydney.edu.au
Social & Legal Studies
2021, Vol. 30(4) 522–540
ªThe Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/0964663920947813
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Introduction
Consent, or the lack thereof, is central to the definition of sexual assault and therefore sits
at the heart of many sexual assault trials (Mason and Monaghan, 2019). However, the
conceptual and practical definition of consent in both social and legal discourse contin-
ues to frustrate feminist endeavours to rewrite the legal rape script. Even progressive
definitions that require that consent must be voluntarily and freely given can be under-
mined in many Australian jurisdictions by a defence of an ‘honest and reasonable belief’
in consent (Larcombe et al., 2016). A reasonable belief in consent refers to the legal
defence to sexual assault, which questions whether a perpetrator could have believed the
victim was consenting, regardless of whether the victims actually consented (see Burgin
and Flynn, 2019). Furthermore, even in cases of conviction, appeals based on this
defence are high, and appeals for convictions on sexual assault matters have one of the
highest rates of success (see Donnelly et al., 2011). Queensland and New South Wales
are the only Australian jurisdictions where the defence of an honest and reasonable belief
in consent, or mistake of fact remains in place, although both are now under review after
a series of high-profile cases and an ongoing concern over the way that reasonable belief
continues to be framed by rape myths and socio-cultural sex scripts (NSW LRC, 2019;
Qld LRC, 2019). This paper adds to the body of work that questions the transformative
potential of a ‘reasonable belief’ standard.
This article aims to reflect on judicial thinking on crucial aspects of the ‘honest and
reasonable belief’ in consent defence through an analysis of the Queensland Court of
Appeal (QCA) judgment of R v Lennox. Court of Criminal Appeal judgments are
significant because they provide insight into how the higher courts interpret and apply
models of consent and reasonable belief (Mason and Monoghan, 2019: 2). An individual
case study approach to examining the law is couched in a rich history of feminist legal
critique (Howe and Alaatinoglu, 2018; Smart, 1989/2012). Following the work of Smart,
this analysis uses a Foucauldian inspired analysis method of reading law as discourse. As
such it is an important mode of engagement with hegemonic constructions of gendered
relationships. Individual legal cases then are as a discursive site on which to expose and
contest the gendered constructions of women’s experiences. Furthermore, post-reform
cases provide opportunities not only for assessing the effectiveness of the reforms in
consent law but also for continuing the endlessly valuable discursive work that Smart
(1989) advocated and practiced in other fields of law. That is, they are ideal sites for
continuing the work of interrogating the laws method by articulating alternative accounts
and interpretations, challenging law’s power to disqualify women’s experiences of vio-
lence by privileging men’s feelings and experiences. Conceived of in this way, the cases
are transformed into what Adrian Howe (2018) has described as ‘a critical, pedagogical
means of mobilising consciousness’ about excuses for violence against women.
This article begins by reviewing the standards of honest and reasonable belief. Fol-
lowing this, the facts of the Lennox case are explained, before examining the ‘all or
nothing’ reasoning of the Justices of Appeal in setting aside his original conviction.
Using a feminist sociocultural framework (Gavey, 2005; Kelly, 1988), it is argued that
the jury’s split judgment is easily reconciled within the dominant socio-cultural dis-
courses of hetero(sex). Within such discourses, the grey area between sexual violence,
Gore 523

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