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The impact of introducing an affirmative model of consent and changes to the defence of mistake in Tasmanian rape trials

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Cockburn, HM (2012) The impact of introducing an affirmative model of consent and changes to the defence of mistake in Tasmanian rape trials. PhD thesis, University of Tasmania.

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Abstract

The successful prosecution of sexual offences is regularly frustrated because jurors, judges and legal
counsel embrace prejudicial stereotypes about what constitutes consent to sexual intercourse. In 2004
the Tasmanian Parliament instituted reforms to the state’s Criminal Code that inserted a statutory
definition of consent in s 2A and imposed additional constraints on the availability of the defence of
mistaken belief in consent in s 14A. These changes were amongst the most progressive in the
common law world. The reforms were designed to ensure that the issue of consent to sexual conduct
would be evaluated according to standards of mutuality and reciprocity and that therefore, in
accordance with s 2A(2)(a) of the Tasmanian Criminal Code, proof that the complainant did not
communicate consent is sufficient to establish absence of consent. This thesis looks at the way that the
amended provisions are being implemented by conducting a content analysis of trial transcripts of
sexual offences cases heard in the Tasmanian Supreme Court in which the determination of the issue
of absence of consent was critical to the case outcome. The research also includes interviews with
judges of the Supreme Court of Tasmania and legal practitioners admitted to the Tasmanian bar. The
treatment of the issue of consent to sexual conduct is examined to determine whether or not it is
consistent with the intentions articulated by parliament and the reform advocates. The findings from
this research provide evidence that the reforms are not being implemented as intended. There is
evidence that judges and counsel continue to rely on a pre-reform notion of consent and indications
that the prosecution tailor cases to their understanding of the jury’s preconceived views about rape,
rape victims and consent to sexual intercourse. The thesis concludes that the general reluctance or
inability to engage with the new concept of consent that the reforms have instituted must be addressed
by providing education about the meaning and effect of the amended legislation if there is to be any
hope of achieving positive attitudinal change within both the criminal justice system and the broader
community.

Item Type: Thesis (PhD)
Keywords: rape, sexual offences, affirmative consent, rape myths, instructions to juries
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Date Deposited: 17 Aug 2012 04:37
Last Modified: 11 Mar 2016 05:53
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