"Laws of sexual violence offer no unique insights about the nature and operation of criminal law".

The scope of the 1981 legislation change was, by legal standards, huge. And subsequent amendments made in 1984, 87’ and 89’ continued the significant reformation. Such wide-spread and abrupt changes in the criminal law are not common. The law is usually sloth-like, and changes are often sluggish to transpire and incremental in nature, but these reforms came like the proverbial bat out of hell.

So why the big change? What exactly were the intrinsic – and apparently very serious – problems these extensive reforms were urgently trying to address? And, furthermore, what insights do these intrinsic problems offer regarding the nature of criminal law as a whole?

Well the problems, or shall we say, issues, were many. Some have already been alluded to, such as the tendency of the law to put the victim on trial by attacking their character (or maybe that wildly revealing red dress she (or maybe he) was wearing on the night in question). But it is necessary to read between the lines when trying to grasp exactly what these laws tell us about criminal law as an entirety.

One thing laws of sexual violence tell us is that criminal law intrudes into the personal sphere. This is hardly a revelation. As criminal law concerns itself primarily with how humans interact physically, and with the greater society as a whole, it is natural that certain restrictions will be placed on personal ‘freedoms’. However, laws of sexual violence do not merely peek in around the bedroom door to make sure everything is O.K. No, these laws stride confidently into the bedroom, rip the sheets off the bed and shout: “What the hell’s going on in here?” The answer to that question will doubtless be perfectly acceptable if what you are doing fits within the confines of socially and legally constructed norms. However, if your sexual preferences lie on the fringes of these norms then you could be in trouble.

The result of criminal laws foray into the personal domain varies greatly depending on how the individual fits within what is ‘acceptable’. “Concepts of personhood are not fixed and universal but variably dependant on social, cultural and legal norms. Under policing, or over policing, of violence affecting certain social groups suggest a stable moral consensus concerning legal protection of the person may be more myth than reality”.

The juxtaposition of two cases in particular illustrate this contrast vividly: R v Brown and R v Wilson. The facts of the cases differ, but the question each begs is the same: Under what circumstances is it legally acceptable consent to personal harm arising from sexual titillation?

Brown deals with the legality of homosexual sado-masochism amongst a group of willing, consenting adults. In this case the acts of sexual violence were not merely consented to, they were desired and requested. The facts of Wilson indicate that the plaintiff, in the privacy of his own bedroom, and with the consent of his wife, proceeded to brand his initials into his wife’s buttocks with a hot knife. The sexual participants in Brown were found guilty of assault, those in Wilson were not.

The trial judge in Wilson commented: “Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution”. However consensual activity between homosexuals in the privacy of their homes clearly was. The court of appeal differentiated Wilson from Brown on the grounds that there was no “aggressive intent”, and that the violence in Brown was “truly extreme”. Yet only in Wilson was medical attention required. It is apparent from these decisions that law was creating a dialogue about what type of behaviour is socially acceptable. The law was cementing the norms and further isolating the ‘other’. Such common law is reflective, and offers and insight into other area’s of criminal law. Making exceptions for the ‘other’ is rife in criminal law, particularly in assault cases regarding homosexuals.

Interestingly, while it is legally acceptable for a married couple to brand each other, it is no longer legally acceptable for a man to forcibly have sex with his wife. Once upon a time the idea that a husband could rape his wife seemed ludicrous. However marriage does not, and should not, forgo the woman’s right to protection from sexual assault. This brings the focus onto the issue of consent. If you consent to any form of sexual action within marriage then it would seem the action is tolerable before the law. If you do not consent then it is intolerable. However, in homosexual relationships the issue does not seem to be on consent at all, but rather on upholding proper moral standards – whatever they may be. The notion of consent in criminal law is a chameleon, fluid and changing between offences, and in this capacity it creates the possibility of differential disciplining between genders, sexualisation and sexual orientations.

Another insight we can garner from laws of sexual violence shows us that law tends to subordinate the non-dominant, and in doing so play with notions of power. The legal system is bathed in patriarchal dominance and nowhere more so than in laws of sexual violence. In few other areas is the presence of cultural and social inequalities between the sexes so evident. This occurs primarily because power relationships are identified through physicality and violence. Violence is the essence of masculinity; Non-violence the essence of femininity.

Laws of sexual violence offer a telling insight into the way in which criminal law tends to favour the dominant, and how a discourse of power tends to thread its way, snake-like, through all areas of law. The failure of Morgan to incorporate an objective test as to the defendant’s state of mind (mens rea) on the question of consent makes it easier for men to adhere to sexual myths. A claim of “honest belief” by the defendant can be hard for the crown to disprove. The sexual domain is no longer accounted for simply by notions of error or sin, excess or transgression but is placed under the rule of the normal and the pathological. And the powerful always determine what is normal.

In the context of the difficulties, ambiguities and misunderstandings that frequently charachterise sexual encounters, the law largely assumes that the male definition of the situation should prevail over that of their victims [women]. This perspective is most succinctly expressed in the common myth that when a woman says ‘no’ to a sexual liaison she does not necessarily mean it. The legal system has historically been directly implicated in the reproduction of certain patterns of male sexual violence [dominance] against women.

As mentioned earlier, the specific rules of evidence allowed in rape trials at common law (prior to the legislative changes) differentiated between credible and unacceptable allegations by examining the prior sexual experience of the victim, their reputation, and conduct at the time of the crime. This imbedded the stereotypical assumption that woman are highly emotional, manipulative and unreliable. The 1981 changes put paid to these evidentiary warnings, but to a large degree the damage had already been done.

Evidence of a discourse of power can also be found in the difference between hetero/homo age of consent. Homosexual men are forbidden to consent to sex before the age of 18, two years after heterosexual men are allowed to consent. This diminished status is inherent in all western legal tradition. The problem of homosocial and heterosocial violence will remain…and particular bodies and desires will be sacrificed in the name of law and order. For women, consent to sex is assumed, and it is up to the victim to prove non-consent. Homosexual men, conversely, must prove consent. This discrepancy highlights the hetero male’s difficulty to come to terms with relinquishing a degree of power to the ‘other’.

The gender and persuasion of all criminal law is heterosexual male. “Criminal law has consistently guarded the male body from any tendencies it may have towards effeminacy by condemning the man who wishes to look like a woman, or have sex in the manner of a heterosexual woman…thus, laws have endeavored to curb an unseemly inclination men might have to act like women”. This is the reason men can seriously injure each other on a sports field, or in friendly horseplay, but in Tasmania a man still cannot legally wear women’s clothes in public.

It has been said that the law is confused. I disagree. The law is inconsistent, but that is not a sign of confusion, rather of calculation. The law knows exactly what it is trying to say. In constructing, and cementing notions of power, cultural norms and social tolerability the law is establishing what is and isn’t acceptable. This construction is by no means exclusive to laws of sexual violence, they are merely reflective of most areas of criminal law. Consequently, laws of sexual violence offer us a number of telling insights into the nature and operation of the criminal law. However this is changing, as the 1981 reforms suggest. The realm of sexual assault is being brought kicking and screaming into the 21st century, where a more even playing field exists. Things are changing slowly. But this is law after all, things usually move slowly.

2011 words.

References:

1.   D. Brown, et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales, Third Edition, The Federation Press, Sydney,  2001.

2.   Law 206 Unit Materials, Vol. 3, 2003.

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