Consent - meaning or myth?
Consent? The dictionary defines consent as "to agree" "agreement".
The definition of consent is by far the most crucial link to truth and justice as to any other detail in sexual assault trials.
Sexual assault http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61h.html
Consent (NSW) http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61i.html
and http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61r.html
How little the issue of consent is defined in Australian Law, in addition to the risk of jury misdirection in directing jury members in the closing of sexual assault trials to the meaning of consent - I question whether the issue of consent in sexual assault trials has become a myth rather than holding any great meaning for sexual assault victims?
We know victims are saying "no" "stop" "why" "don't do this" please stop", we know complainants become victims the moment they are preyed upon when they are walking home alone, in their homes as they sleep, after a night out at the pub, when they are intoxicated, drugged, physically and cognitively incapable of consenting, when they are by definition of law too young to be legally able to consent, then why does this same law allow admissable suggestion by the Defence in contrary to the evidence of victims which raises doubt, plays upon the social misconceptions about victims of sexual assault and contradicts the concept of consent?
The Law clearly states that the failure to resist in a sexual assault does not mean the victim is consenting. However we regularly here of cases where a victims failure to call out when they are aware there might be someone nearby, failure to kick, scream, shout, scratch, punch or use any force necessary to resist, suggests (as defined by the Defence) the victim is consenting. This of course is absent of any data on psychological trauma and the impact of violent crimes on victims, it plays directly on these same social misconceptions or beliefs of what someone would do in the event of a violent crime and not what actions would actually take place in the event of a life threatening situation.
In a trial of a mother who was raped three times in her home, where her 5 year old child slept quietly, the mother was repeatedly asked why she had not called out to her daughter in the attack. In the NSW District court in 2003, a reference by the Defence was even made suggesting if the mother had seen a spider of course she would have called out to her daughter, but why then did she not call out to her in the early hours of the morning, when she was half naked and being raped by the accused?
The Police Station was two blocks from the victims residence, a building constructed in the early part of last century. The jury was directed once again to ask themselves why didn't the victim scream out to the Police?
Obviously the Defence attorney was a man, possibly a father (no reflection on all men intended), however any woman would know (with exception of those on the jury) that a lionness would do anything to protect her cubs, regardless of the species, it is instinct.
The Defence even made sarastic reference to the volume of the victims voice "sorry I can't hear you...can you speak up"...."no I still can't hear you" even suggesting the victim may need special assistance to be heard in the court room, suggesting that once again the onus was on the victim to clearly and loudly delcare she did not want to be raped. Regardless of whether the law claims if the accused believes the victim is consenting, once again this arhaic law which we are told is there to protect the rights of victims and uphold justice, suggests the victim is responsible for making sure the offender understands clearly he/she is not consenting.
So of what relevance is this law? We know that the lack of "no" does not necessarily mean "yes". We know (from the Law of course) that failing to resist on the victims part does not mean he/she is consenting. It appears that a lack of response from the victim, or an action does not suggest the victim is consenting - but where does this have relevance in rape trials?
Under the Sexual Offences Act 2003 in the United Kingdom, an accused must show that they have taken steps to determine whether the victim is consenting or not. This landmark change in sexual assault law is the first step in placing the responsibility of consent onto the accused.
Australian sexual assault laws are disgrace and they are not alone in the international community http://incestabuse.about.com/od/inthenews/a/disgrace.htm
The idea that a person is not free to feel safe in their community, free to accept a ride home from a party with friends, free to sleep in their own bed at night, free to be single, married, work late at night, walk through dark parking lots to their car, enjoy a night out, a few drinks, where a short skirt, red lipstick, high heels and heaven forbid those long black sexy boots and even celebrate with knowing should someone remove this freedom, should someone take advantage of them, prey on their vulnerability, prey on their innocence, instill fear and terror into their lives that they law will protect their rights as human beings. The law will be upheld and held to the highest standard of accountability within our society.
The fact that this is not the reality of 99% of sexual assault trials in our country is an absolute disgrace. We have to seriously consider that this patriarchial system of justice denys Darwins principles of adaptation. This mens club who have evolved so little in equalising the balance of justice for men and women, for victims and offenders, who continue to do their jobs whilst statistics rate sexual assault crimes on the increase, convictions on the decrease and one of the most violent crimes to go unreported each year.
Oh there is law reform, what the government would like victims to believe will provide 'a fair chance' for victims of sexual assault crimes. Give me a break.....
Option for reform under the subject of consent "Amendment of the Crimes Act 1900 (NSW) to introduce an objective fault element in seuxal, whereby a person commits sexual assault if he or she intentionally engages in sexual intercourse without another person's consent,
(ISN't this the LAW already?)...ooooh but wait for it...
"but the accused can raise a defence of honest and reasonable belief that the complainant was consenting"
This is what we can expect from reform?
I can just see it now
"Oh but your Honor...it was that dress, those shoes, the way she looked so innocent and just there for the taking...I BELIEVE she wanted it"
Who wrote this garbage? Where were the voices of victims please in this proposal for reform? Where we are still allowing "sexual reputation" to be defined more clearly so it can be admitted as evidence, where we need to put in writing that judges are not permitted to describe rape victims as "unreliable witnesses".
IDEAS for reform
1. Clearly define consent
2. Place the responsbility of consent on the accused under the law so that the accused must take reasonable steps/action to ensure that consent was given
3. Review of the evidence act - evidence to include the fact that the victim did not scream, shout or resits (as outlined by consent) is not admissable by way that it contradicts the concept of consent.
4. Since the relevant of clothing, makeup, occupation, sexual reputation do not define or clearly show in law that the victim is consenting by way of these details - as such these facts are inadmissable. Whether the victim was wearing a sexy black dress and heels, does not mean she was consenting.
5. As the theory of justice is based on a balance of principles, or so Lady Justice would have us believe - why not balance the scales? Victims or sexual assault trials are to be considered as victims or complainants - not witnesses in their own crimes. As the victim is not afforded character referees, and the fact is they have no relevance as to whether the accused gained consent or not based on his character as a 2 year old 30 years ago or what he was like at school 15 years ago, this should be removed altogether.
It is a start anyway .......
The definition of consent is by far the most crucial link to truth and justice as to any other detail in sexual assault trials.
Sexual assault http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61h.html
Consent (NSW) http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61i.html
and http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61r.html
How little the issue of consent is defined in Australian Law, in addition to the risk of jury misdirection in directing jury members in the closing of sexual assault trials to the meaning of consent - I question whether the issue of consent in sexual assault trials has become a myth rather than holding any great meaning for sexual assault victims?
We know victims are saying "no" "stop" "why" "don't do this" please stop", we know complainants become victims the moment they are preyed upon when they are walking home alone, in their homes as they sleep, after a night out at the pub, when they are intoxicated, drugged, physically and cognitively incapable of consenting, when they are by definition of law too young to be legally able to consent, then why does this same law allow admissable suggestion by the Defence in contrary to the evidence of victims which raises doubt, plays upon the social misconceptions about victims of sexual assault and contradicts the concept of consent?
The Law clearly states that the failure to resist in a sexual assault does not mean the victim is consenting. However we regularly here of cases where a victims failure to call out when they are aware there might be someone nearby, failure to kick, scream, shout, scratch, punch or use any force necessary to resist, suggests (as defined by the Defence) the victim is consenting. This of course is absent of any data on psychological trauma and the impact of violent crimes on victims, it plays directly on these same social misconceptions or beliefs of what someone would do in the event of a violent crime and not what actions would actually take place in the event of a life threatening situation.
In a trial of a mother who was raped three times in her home, where her 5 year old child slept quietly, the mother was repeatedly asked why she had not called out to her daughter in the attack. In the NSW District court in 2003, a reference by the Defence was even made suggesting if the mother had seen a spider of course she would have called out to her daughter, but why then did she not call out to her in the early hours of the morning, when she was half naked and being raped by the accused?
The Police Station was two blocks from the victims residence, a building constructed in the early part of last century. The jury was directed once again to ask themselves why didn't the victim scream out to the Police?
Obviously the Defence attorney was a man, possibly a father (no reflection on all men intended), however any woman would know (with exception of those on the jury) that a lionness would do anything to protect her cubs, regardless of the species, it is instinct.
The Defence even made sarastic reference to the volume of the victims voice "sorry I can't hear you...can you speak up"...."no I still can't hear you" even suggesting the victim may need special assistance to be heard in the court room, suggesting that once again the onus was on the victim to clearly and loudly delcare she did not want to be raped. Regardless of whether the law claims if the accused believes the victim is consenting, once again this arhaic law which we are told is there to protect the rights of victims and uphold justice, suggests the victim is responsible for making sure the offender understands clearly he/she is not consenting.
So of what relevance is this law? We know that the lack of "no" does not necessarily mean "yes". We know (from the Law of course) that failing to resist on the victims part does not mean he/she is consenting. It appears that a lack of response from the victim, or an action does not suggest the victim is consenting - but where does this have relevance in rape trials?
Under the Sexual Offences Act 2003 in the United Kingdom, an accused must show that they have taken steps to determine whether the victim is consenting or not. This landmark change in sexual assault law is the first step in placing the responsibility of consent onto the accused.
Australian sexual assault laws are disgrace and they are not alone in the international community http://incestabuse.about.com/od/inthenews/a/disgrace.htm
The idea that a person is not free to feel safe in their community, free to accept a ride home from a party with friends, free to sleep in their own bed at night, free to be single, married, work late at night, walk through dark parking lots to their car, enjoy a night out, a few drinks, where a short skirt, red lipstick, high heels and heaven forbid those long black sexy boots and even celebrate with knowing should someone remove this freedom, should someone take advantage of them, prey on their vulnerability, prey on their innocence, instill fear and terror into their lives that they law will protect their rights as human beings. The law will be upheld and held to the highest standard of accountability within our society.
The fact that this is not the reality of 99% of sexual assault trials in our country is an absolute disgrace. We have to seriously consider that this patriarchial system of justice denys Darwins principles of adaptation. This mens club who have evolved so little in equalising the balance of justice for men and women, for victims and offenders, who continue to do their jobs whilst statistics rate sexual assault crimes on the increase, convictions on the decrease and one of the most violent crimes to go unreported each year.
Oh there is law reform, what the government would like victims to believe will provide 'a fair chance' for victims of sexual assault crimes. Give me a break.....
Option for reform under the subject of consent "Amendment of the Crimes Act 1900 (NSW) to introduce an objective fault element in seuxal, whereby a person commits sexual assault if he or she intentionally engages in sexual intercourse without another person's consent,
(ISN't this the LAW already?)...ooooh but wait for it...
"but the accused can raise a defence of honest and reasonable belief that the complainant was consenting"
This is what we can expect from reform?
I can just see it now
"Oh but your Honor...it was that dress, those shoes, the way she looked so innocent and just there for the taking...I BELIEVE she wanted it"
Who wrote this garbage? Where were the voices of victims please in this proposal for reform? Where we are still allowing "sexual reputation" to be defined more clearly so it can be admitted as evidence, where we need to put in writing that judges are not permitted to describe rape victims as "unreliable witnesses".
IDEAS for reform
1. Clearly define consent
2. Place the responsbility of consent on the accused under the law so that the accused must take reasonable steps/action to ensure that consent was given
3. Review of the evidence act - evidence to include the fact that the victim did not scream, shout or resits (as outlined by consent) is not admissable by way that it contradicts the concept of consent.
4. Since the relevant of clothing, makeup, occupation, sexual reputation do not define or clearly show in law that the victim is consenting by way of these details - as such these facts are inadmissable. Whether the victim was wearing a sexy black dress and heels, does not mean she was consenting.
5. As the theory of justice is based on a balance of principles, or so Lady Justice would have us believe - why not balance the scales? Victims or sexual assault trials are to be considered as victims or complainants - not witnesses in their own crimes. As the victim is not afforded character referees, and the fact is they have no relevance as to whether the accused gained consent or not based on his character as a 2 year old 30 years ago or what he was like at school 15 years ago, this should be removed altogether.
It is a start anyway .......
posted by Surviving @ 3:25:00 pm
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