‘Real Rape’, Law Reform and The Role of Research: The Evolution of the Victorian Crimes (Rape) Act 1991
| Author | David Brereton |
| Published date | 01 June 1994 |
| Date | 01 June 1994 |
| DOI | http://doi.org/10.1177/000486589402700110 |
| Subject Matter | Articles |
'Real
Rape',
Law
Reform
and
The
Role
of
Research:
The
Evolution
of
the
Victorian
Crimes
(Rape)
Act
1991
David
Brereton-
This
paper
provides
a
brief
history
of
the
Vzctorian
Crimes
(Rape)
Act
1991
and
examines
the
role
which
social
science
research
played
in
the
development
of
this
legislation.
The
Crimes
(Rape)
Act
was
modelled
closely
on
a
report
of
the
Law
Reform
Commission
of
Victoria.
In
preparing
this
report,
the
Commission
undertook
a
comprehensive
quantitative
study
of
rape
prosecutions
in
Vzctoria,
as
well
as
drawing
on
empirical
studies
from
other
jurisdictions.
The
paper
concludes
that
the
impact
of
the
research
on
the
development
of
the
legislation
was
limited
by
a
number
of
factors:
the
decision-making
process
was
relatively
unstmctured,
involved
alarge
number
of
players,
was
highly
politicised,
and
had
a
high
symbolic
content.
However,
the
collection
and
dissemination
of
reliable
data
did
take
some
of
the
heat
and
hyperbole
out
of
the
debate,
and
thereby
facilitated
a
more
constructive
dialogue.
This
factor
alone
made
the
research worthwhile,
given
that
the
rape
law
reform
had
in
the
past
been
a
highly
divisive
issue
in
Victoria.
Introduction
In
October
1991,
the
now
defunct
Law
Reform
Commission
of
Victoria
l
reported
to
State
Parliament
on
the
reform
of
Victoria's
rape
laws.2
Within
a
few
weeks
of
receiving
this
report,
the
Parliament
passed
the
Crimes
(Rape)
Act
1991.
This
legislation
implemented
the
great
bulk
of
the
Law
Reform
Commission's
recommendations
for
legislative
change
and
closely
followed
the
form
of
a
model
bill
which
had
been
prepared
by
the
Commission.
In
this
article,
I
provide
a
brief
history
of
the
Act
and
of
the
Law
Reform
Commission
report
on
which
it
was
based.
More
particularly,
I
examine
the
role
which
social
science
research
played
in
the
development
of
the
Commission's
recommendations.
Often,
law
reform
agencies
in
Australia
have
relied
on
little
more
than
anecdotal
information,
reported
appellate
court
decisions,
and
the
views
of
those
'in
a
position
to
know'
to
identify
problems
in
the
operation
of
the
law.
However
in
this
instance,
as
in
its
earlier
reference
on
the
law
of
homicide,
3
the
Law
Reform
Commission
took
a
much
more
systematic
approach.
The
background
research
for
the
Commission's
report
included
a
comprehensive
quantitative
study
of
all
rape
prosecutions
initiated
in
Victoria
in
1989.
This
study
was
designed
to
determine
the
frequency
with
which
various
legal
issues
arose,
and
identify
the
factors
which
were
associated
with
prosecution
success
or
failure.
The
•
Director,
Research
and
Co-ordination
division,
Queensland
Criminal
Justice
Commission.
74
IReal
Rape',
law
Reform
and
the
Role
of
Research
75
Commission
also
drew
extensively
on
research
on
the
impact
of
rape
law
reform
in
other
jurisdictions,
particularly
the
American
state
of
Michigan.
A
case
study
of
the
development
of
the
Crimes
(Rape)
Act
therefore
provides
a
valuable,
and
relatively
rare
opportunity,
to
consider
the
role
which
social
science
research
is
capable
of
playing
in
the
law
reform
process.
4
The
following
discussion
has
three
main
components.
In
the
first
section
I
provide
an
overview
of
the
new
Act
and
its
relationship
to
previous
reform
initiatives
in
Victoria.
In
the
second
section,
I
describe
how
the
Act
evolved,
and
make
some
general
obselVations
about
the
decision-making
process
which
applied
in
this
case.
This
section
should
be
read
in
conjunction
with
the
Appendix,
which
provides
a
fairly
lengthy
chronology
of
'key
events'.
In
the
final
two
sections
I
describe
the
research
undertaken
by
the
Commission
and
assess
the
impact
of
this
work
on
the
development
of
the
legislation.
The
Issue
of
Perspective
From
November
1990
to
June
1992
I
was
employed
as
a
consultant
on
a
part-time
basis
by
the
Law
Reform
Commission
of
Victoria.
In
this
capacity,
I
was
responsible
for
designing
and
overseeing
the
research
for
the
'Rape
Reference'
and
for
drafting
the
reports
arising
out
of
the
Reference.
My
close
involvement
with
the
Commission
gave
me
access
to
some
information
not
readily
available
to
~outsiders'.
However,
it
must
be
stressed
that
my
vantage
point
was
only
one
of
many.
Complex
processes
generate
complex
histories,
and
other,
differently
placed,
observers
might
well
offer
a
different
interpretation
of
what
took
place,
and
why. I
make
no
claim
that
the
account
provided
herein
is
either
comprehensive
or
impartial.
The
Cril11es
(Rape)
Act
1991:
An
Overview
Table
One
summarises
the
key
provisions
of
the
Crimes
(Rape)
Act
1991
and
shows
the
relationship
of
this
legislation
to
other
reforms
of
sexual
assault
law
introduced
in
Victoria
over
the
last
two
decades.
5
Table
One
Sexual
Assault
Reforms
Introduced
in
Victoria,
1976-91
Legislation
Main
Features
Rape
Offences
Restrictions
on
admissibility
of
sexual
history
evidence
(Proceedings)
introduced.
Act
1976
Hand-up
procedure
made
mandatory
for
committal
hearings
in
rape
cases~
Prosecutors
required
to
be
legally
qualified.
Committal
hearings
for
rape
offences
closed
to
the
public.
Time
limits
for
rape
prosecutions
set
at
3
months
from
charge
to
committal
and
3
months
from
committal
to
trial.
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