By R.A.Duff*

Both the trial judge and the Court of Appeal seemed to base their view that a mistaken belief in consent must be reasonable if it is to secure an acquittal on evidential principles, not on the substantive principle that one who acts on an unreasonable belief really has the mens rea of rape. That mens rea consists, they agreed, in "the intention to do the prohibited act":" it involves an awareness of the woman's lack of consent, and is in principle negatived by any honest belief in consent. But proof of the fact of non-consensual intercourse creates a presumption that the defendant knew she did not consent, and casts on him the evidential burden of adducing evidence to rebut that presumption. "before any issue as to his state of mind can arise for the jury's consideration".' This burden is not discharged by "a bald assertion of belief for which the accused can indicate no reasonable ground"," but only by evidence of a reasonable belief: if such evidence is adduced, the prosecution must prove either that that belief was not honestly held or that it was not reasonable.

The Liverpool Law Review VoJ. III (2) 119811, 16p.

By Dr Anastasia Powell, Dr Nicola Henry, Dr Asher Flynn and Dr Emma Henderson

Since the 1980s, laws regulating the meaning and interpretation of sexual consent have been substantially reformed across Australian and international jurisdictions. Of particular note in an Australian context are the significant changes to the definition of consent introduced in Victoria in 2006 and 2007, which were primarily informed by the Victorian Law Reform Commission’s review of legislative provisions relating to sexual offences. In this article, we explore the persistence of traditional rape discourses in the courtroom following the 2007 Victorian reforms by examining meanings of ‘sex’ and ‘consent’ in a pilot sample of rape trials. Our analysis suggests that although deeply entrenched societal myths or discourses about rape continue to pervade Victorian courtrooms, there is some evidence of a shift towards a legal focus on the accused’s state of mind, in addition to that of the victim-complainant. This shift, however, is only prominent in cases in which the accused testifies. In light of these preliminary findings, we suggest that further comparative analyses of the qualitative impact of law reform on discursive constructions of ‘sex’ and ‘consent’ in rape trials may provide alternative measures of the impact of rape law reform.

Powell, A., Henry, N., Flynn, A. and Henderson, E. (in press, 2014). ‘Meanings of “Sex” and “Consent”: The Persistence of Rape Myths in Victorian Rape Law’, in Griffith Law Review, (accepted 10 January 2014), 1-38.