Women’s behavior as implied consent: Male “reasonableness” in Australian rape law
| Author | Rachael Burgin,Asher Flynn |
| DOI | 10.1177/1748895819880953 |
| Date | 01 July 2021 |
| Published date | 01 July 2021 |
| Subject Matter | Articles |
https://doi.org/10.1177/1748895819880953
Criminology & Criminal Justice
2021, Vol. 21(3) 334 –352
© The Author(s) 2019
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DOI: 10.1177/1748895819880953
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Women’s behavior as
implied consent: Male
“reasonableness” in
Australian rape law
Rachael Burgin
Asher Flynn
Monash University, Australia
Abstract
Defendants in rape trials rely on narratives of “implied consent,” situating women’s ordinary
behavior as having indicated consent. Such narratives ignore women’s experiences, instead
describing a male perpetrator’s subjective interpretation or inference of the woman’s actions.
Implied consent narratives should have been eliminated by law reform introducing affirmative
consent that redirected attention to steps that the perpetrator took to ensure the other party was
consenting. Drawing from an Australian study, this article uses rape trial excerpts from the state
of Victoria to argue that implied consent narratives endure in rape trials and form the key factor
shaping a reasonable belief defense. Rape law allows men to interpret women’s behavior without
restriction, providing evidence of the persisting influence of misogynistic views of women in law
and legal practice. This article contributes to feminist jurisprudential and theoretical efforts to
generate understandings of the ways rigid gender norms are enacted and performed in rape trials.
Keywords
Consent, gender, rape law, reasonable belief, sexual violence
Introduction
An affirmative consent standard, in which sexual consent is based on ongoing, active
agreement by all parties (Pineau, 1989), has been adopted into substantive law across
Western nations in recent decades largely as a result of feminist reform efforts. These
Corresponding author:
Rachael Burgin, School of Social Sciences, Monash University, Wellington Road and Blackburn Road,
Clayton, VIC 3800, Australia.
Email: rlburgin@gmail.com
880953CRJ0010.1177/1748895819880953Criminology & Criminal JusticeBurgin and Flynn
research-article2019
Article
Burgin and Flynn 335
ongoing efforts have sought to prevent the attribution of blame to women for their own
sexual victimization as a result of actions (or inaction) leading up to, during and after the
rape. Furthermore, affirmative consent sought to shift focus to what actions the perpetra-
tor took to ensure he had ongoing, active consent from the other party(ies) to engage in
a sexual act. There is broad social, legal and political support for this approach (Craig,
2009; Flynn and Henry, 2012). However, there is little evidence demonstrating how this
model translates into practice. This article addresses this gap, drawing on findings from
an Australian study exploring the mobilization of a specific facet of affirmative consent
law in 15 rape trials that took place in the state of Victoria between 2008 and 2015.
Shifts toward the “objective” standard of reasonableness are a key characteristic of how
affirmative consent has been interpreted by lawmakers because of its potential to direct
attention to the perpetrator’s actions in ensuring the victim was consenting. However, we
argue that law reform agendas implementing objective standards have also had unexpected
consequences. Specifically, the findings from this study show that defense counsel consist-
ently rely on problematic narratives of “implied consent” to argue that perpetrators have an
“objectively” reasonable belief in consent. Implied consent refers to the notion that women
indicate sexual consent through their unrelated, everyday, benign behavior. Under this
framework, the victim’s voice and experiences are irrelevant. What matters is how the per-
petrator perceived her actions, even though what perpetrators generally describe are their
own inferences of victims’ behavior and what it means in relation to her desire for sexual
contact. Thus, the attention remains on the victim’s actions, and her behavior is traced,
debated, and questioned to support a “reasonable” belief argument. The “legal story of rape”
continues to blame victims for actions that supposedly implied consent to the perpetrator.
This argument is in line with Bronitt’s (1996) earlier view that belief in consent argu-
ments allows perpetrators to “raise dangerous rape myths legitimately” (p. 134). That this
problem persists provides some evidence that law reform efforts to date have not informed
any substantive change to the experience of victims being blamed for rape. This outcome
should be eliminated or at the very least interrupted by an affirmative consent standard.
Our findings suggest this is not the case. Implied consent continues to function in rape
trials, and the “reasonableness” of a perpetrator’s belief in consent continues to be
informed by men’s understanding of women as passive, sexual actors with no innate sexu-
ality of their own while being constantly oversexualized beings whose behavior is (re)
constructed as flirtatious. Importantly, it does not appear that, at law, enough is done to
eliminate this reliance on myths about a woman’s role in sexual victimization.
The transcripts analyzed are a non-representative sample resulting in a conviction
between 2008 and 2015. Due to ethical and procedural limitations placed on the
research by the court, we were required to identify cases in order to request a tran-
script. These were identified through a systematic, manual search of all reported judg-
ments and sentencing remarks from the Victorian County Court on the AustlII database,
crossed-checked through keyword searches in the same database and through media
databases. In three cases, the perpetrators were found not guilty of rape, but guilty of
another offense. We are not suggesting that the findings are representative of all rape
trials; however, the constructed defense narratives discussed throughout this article
were evident in all transcripts analyzed, thus suggesting focusing on victim behavior
is common, at least in this dataset.
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