Abstract
This article examines the circumstances in which intimidation will vitiate consent to
sex under Australian rape law. It begins by summarising the legislative provisions in
the various Australian jurisdictions, before surveying recent appellate case law.
Existing cases can usefully be grouped into a number of categories based on the kinds
of intimidation involved. There is, however, almost always some degree of overlap
between the various different forms of intimidation and other factors relevant to
determining consent. The article concludes by examining the reasoning process
utilised by the courts in these kinds of cases. It is argued that judges rely heavily on a
holistic assessment of the facts of each case to determine whether consent is legally
effective. This has important consequences for how statutory definitions of rape are
interpreted and applied.
sex under Australian rape law. It begins by summarising the legislative provisions in
the various Australian jurisdictions, before surveying recent appellate case law.
Existing cases can usefully be grouped into a number of categories based on the kinds
of intimidation involved. There is, however, almost always some degree of overlap
between the various different forms of intimidation and other factors relevant to
determining consent. The article concludes by examining the reasoning process
utilised by the courts in these kinds of cases. It is argued that judges rely heavily on a
holistic assessment of the facts of each case to determine whether consent is legally
effective. This has important consequences for how statutory definitions of rape are
interpreted and applied.
| Original language | English |
|---|---|
| Journal | University of Western Australia Law Review |
| Volume | 42 |
| Issue number | 1 |
| Publication status | Published - 2017 |