“Silence does not mean ‘Yes’” or “Silence does not signify verbal assent” aptly summarizes the debate over the threshold between consensual sex and rape. On the one hand, verbal consent is unnecessary if, in the heat of sexual passion, the body clearly sends signals equating to physical consent. On the other hand, the lack of explicit consent alone is, by law, sufficient grounds to claim rape. And there is, of course, “vitiated consent” namely, with respect to women who are not qualified to give consent by reason of minority.
On the record, rape victims do not obtain redress because they are largely reluctant to report the crime, mainly because the perpetrator was someone they knew well; even worse, the few cases that are filed are soon dropped or cannot be prosecuted vigorously.
The incidence of rape is astonishingly high. In “The Victorian Interim Report”, Hunter and Keyes (2005) noted that about 20 percent of Australian women age fifteen or older had been sexually assaulted; of these, the lion’s share (85 percent) went unreported. Only a small fraction (11 percent) was perpetrated by strangers, revealing the extent to which assaults by spouses, relatives and friends were prevalent.
Even when victims report the assault, empirical evidence suggests that the odds against even prosecuting the case are high. On analyzing 850 rape cases filed in 2003, Heenan and Murray (2006) found that “offenders were charged in only 15 percent of reported rapes examined.” The overwhelming majority of cases of rape did not proceed and ended equivocally because the victims were alleged to be mentally ill, others were young and had a cursory relationship with the offender, or had consumed alcohol. Other victims withdrew the case for lack of confidence in the criminal justice system and owing to pressure from family members.
The Crimes Act of 1958 was expanded to address these disturbing circumstances. Among those noted in s37B were the unacceptably high incidence of sexual violence in Victoria (37B sec A), that a significant number of sexual offences are committed against women, children and vulnerable persons (37B sec C), that sexual offenders are commonly known to their victims (37B sec D) and sexual offences often occur in circumstances that diminish the likelihood of finding physical evident (37B sec E).
Among the reforms introduced were broadening the aggravating circumstances of rape to include consideration of the mental state of both offender and victim; as well as expanding the instrumentality of rape beyond the previous emphasis on the penis to now include any object, including digital penetration of vagina, mouth, or anus. Merely coercing another person to commit rape can be considered rape (38 Par 3).
Free consent being the essential threshold between consensual sex and rape, the principal debate then is what constitutes consent. Implied consent is now largely irrelevant. The fact that a woman does not do anything to signify consent during the assault is sufficient to imply that the act occurred without her free consent (37 par A). The lack of physical resistance or injury should not imply consent either (37 par B).
Even if the victim initially consented or had done so on prior occasions can no longer be taken to mean that she consented to the act of rape when it did happen. The law is so explicit that even in the midst of consensual sex, consent can still be withdrawn and thus the act reverts to assault in the eyes of the law (38 Par 1 and 2). Intake of drugs or alcohol is now to be taken as vitiating free consent. Finally, the fact of adolescent (10 to 16 years old) consent is no longer exculpatory but a mitigating circumstance at best (Sexual Offence, p.83).
Given the stigma attached to being a rape victim, the law leans heavily in favour of assuming rape over consensual sex. This serves the interest of justice. Being a personal and private crime, rape is often a question of the word of the rapist versus that of the victim. Without the law to support her, the victim will endure her shame in silence and without hope of redress.
Chapter 6: Sexual Offences against Children and Young People. [Internet] Available from: <http://www.lawreform.vic.gov.au/CA256902000FE154/Lookup/Sexual_Offences/$file/Discussion_Paper_chapters_6-9.pdf> [Accessed 10 November 2007].
Heenan & Murray., 2006. Study Reported Rapes Victoria 2000-2003. [Internet].
Available from: <http://126.96.36.199/search/cache?ei=UTF-8&p=%E2%80%A2%09 Study+of+Reported+Rapes+in+Victoria+2000-2003%3B++Heenan+and+Murray+ %282006%29++&fr=yfp-t-471&fp_ip=PH&u=www.casa.org.au/asset.php%3Fasset_id %3D37&w=study+reported+rapes+victoria+2000+2003+heenan+murray+2006&d=JgN5xPL9PvkG&icp=1&.intl=us> [Accessed 10 November 2007].
Hunter, R. & Keyes, M. 2005. Changing Law: Rights Regulation and Reconciliation. Aldershot, Ashgate Publishing, Ltd.
Sycaminias, E. Victorian Crimes Act 1958 (Sect. 35-38) & Victorian Crimes (Rape) Act 1991 [Internet] Available from <http://www.uplink.com.au/lawlibrary/Documents/Docs/ Doc28.html> [Accessed 10 November 2007].
Victorian Consolidated Legislation [Internet] Available at <http://www.austlii.edu.au/au/ legis/vic/consol_act/ca195882> (Accessed 11 Nov 07).