Jurisdictions of Sexual Assault: Reforming the Texts and Testimony of Rape in Australia

Abstract

The reform of rape law remains a vexed enterprise. The wager of this article is that the plural traditions and technologies of criminal law can provide the resources for a radical rethinking of rape law. Parts 1 and 2 return to the historical and structural forms of rape law reform in Australia. These forms of reform illustrate a variety of criminal jurisdictions, and a transformation in the way in which rape law reform is conducted now. Against this transformation, Part 3 takes up the technology of classification in rape law in order to generate a radical legal definition of rape—one which responds to the pain and suffering of the survivor of rape, at the same time as it holds the legal institution before the law. This has important implications, it is suggested, not only for domestic legal systems but also the jurisprudence of rape in international criminal law.

Introduction

The crime of rape occupies a peculiar place within the bestiary of criminal law. In many respects its positioning is anomalous: it is a sexual offence but one which finds itself in the juridical catalogue of violence against the person; positioned between family law and criminal law, it draws on property relations and specifically matrimonial property to structure its understanding of the sexual relation; it is an English crime yet one that takes its meaning and value from the local circumstances, distinctive to Australian criminal law but also from an international legal discourse on rape that finds it difficult to place rape as either genocide, a war crime or a crime against humanity; an offence of the common law yet one which obtains its character from the legislative will of the modern nation-state and its judicial interpretation; a crime which has the legal system as its point of reference but that is repeatedly referred to the political and common-sense attitudes of the ‘lay’ community. In all these instances, rape and sexual assault possess a constitutive ambivalence and polysemy. Rape engenders a crisis of classification, unsettling all and any account of law.

The concern in this article is with the ways in which this crisis of classification has been managed by both criminal law in Australia and the reforming enterprise it brings in its wake. If, despite the best efforts of legal reform, rape and sexual assault are hard to pin down, then what possibilities remain for re-imagining the lawful measure of the sexual violence against women which the tradition has come to invoke as rape or sexual assault? Short of considerable social and political upheaval, it is the law of rape and sexual assault that our rethinking will have had to engage.

The texture and nuances of the crisis of classification is engaged in this article along three vectors. The first part relates the crisis to the historically variable traditions of rape law and the plural projects of rape law reform in modern Australia. The second part of the article moves from the diachronic to a synchronic and structural elaboration. It reconstructs the frames of reference of rape law reform in order to discern shifts in the form and idiom of the knowledge that limits the shape of the project of reform. Together, these two dimensions of rape law reform provide an indication of the dominant narratives of contemporary rape law reform, emphasising its lacunae, disjunctures and commonplaces. The third part of the article engages with this inheritance. It does so by returning to and revising the taxonomy of the substantive legal definition of rape. The claim is that the taxonomy of criminal law provides resources—largely untapped—for imagining a juridical space for a reformed definition of rape. This reformed definition removes the standard of consent and places the injury caused to the survivor as the central object of legal prohibition.

Criminal Law and Rape Law Reform in Australia

The tradition of criminal law in Australia is plural and distinctive. The first law of Australian criminal law is indigenous. The governance of crime remains a vibrant part of the various indigenous jurisdictions of Aboriginal and Torres Strait Islander peoples. These jurisdictions are not only articulated in relation to their own traditions of knowledge and conduct, but also engage what Williams famously characterised as the “big trouble” and “little trouble” in relation to Anglo-Australian practices of criminal justice (Williams 1987). That said, indigenous jurisdictions are largely overridden by or at least subsumed within Anglo-Australian law. In contrast to many other areas, such as property law, Anglo-Australian law has reserved to itself the power and authority of criminal law.¹ As such, criminal law in Australia remains in large measure Anglo-Australian in orientation, institutional framework and genres of knowledge. One limit of this paper then is that it retraces rape law reform on the ground of the ordering of Australian settler legal relations. Its concern is with the lawful jurisdiction of Anglo-Australian criminal law of rape.²

The power and authority of Anglo-Australian criminal law resides in the several states and territories of the Commonwealth of Australia. The effect is a patchwork of territorial jurisdictions, with each state and territory creating its own penal legislation prohibiting the crime of rape or sexual assault. Victoria (Vic), New South Wales (NSW), South Australia (SA) and the Australian Capital Territory (ACT) are conventionally referred to as common law jurisdictions, in contrast to Queensland (Qld), Western Australia (WA), Tasmania (Tas) and the Northern Territory (NT) which are referred to as code jurisdictions.³ The common law jurisdictions use general criminal legislation which is then interpreted in the light of the articulations of common law principles and practices by the judicial courts.⁴ This scheme of general legislation—or restatement of the common law of crime—was generated in each of the states in the early decades of the twentieth century. At the end of the nineteenth century, however, what have become known as the code jurisdictions took a different legislative path—they established not so much a restatement of the common law, as its codification.⁵ The common law of crime was abolished and placed on a statutory footing which then became the sole source of authority—albeit with some reference to its founding fathers—for the judicial construction of crime and its narratives of liability and moral responsibility.⁶ In short, Anglo-Australian criminal law is composed of a plurality of jurisdictions with differentiated relations to the common law tradition. And, although there are clear similarities in terms and structure between the various jurisdictions when it comes to the juridical attribution of liability for rape, this plurality does mean that the restatement and reform of the law of rape proceeds at different speeds and with reference to different policy articulations. In this context, a final jurisdiction needs to be added. This is the federal criminal jurisdiction created by the Commonwealth Parliament as an incident to its powers under the Constitution. Contemporary forms of sexual violence have provided some of the subject matter for the construction of this jurisdiction. Since the reforms of family law in the 1970s, the federal jurisdiction has had to engage the enfolding of family violence and sexual violence. Since the 1990s, sex trafficking, international sex tourism, and debt bondage have been the subject of commonwealth legislation (R v Tang [2008] HCA 39). Similarly, the Commonwealth Government engaged in a project of codification of the entirety of the subject matter of substantive criminal law. Its chapter on rape and sexual assault generated considerable community and legal debate, and became an impetus for the independent reform of rape laws throughout the states and territories in the mid-1990s.⁷

What can be discerned in this plurality of jurisdictions of crime is that criminal law begins in Australia as a project of reform—the disavowal of indigenous laws of crime, the legislative condensation of the common law of England in some states and territories, the codification and consequent displacement of common law in yet other territorial jurisdictions. Rape law is exemplary in this respect: its history emerges out of and is enfolded by an enterprise of legal reform. The initial modus vivendi of rape law reform mirrored the distinction between restatement and codification: often, it was concerned to maintain in the mode of restatement of the common law rules because of their putative commitment to the rights of the accused, and often in the same breath, it was concerned to abolish the common law rules because of their symbolic and practical effect on the pain and suffering, the trauma, of the survivors. In sum, rape law—like criminal law more generally—exists in an isomorphic relation with its reform. Each new law calls forth its criticism, each criticism documents the failure of law and its reform, and each failure calls forth yet more laws of rape and their allied sexual offences. This isomorphic relation of rape law and its reform is one sense of the crisis of classification which rape engenders.

Against this background, it is possible to sketch three critical periods for the current enterprise of rape law reform.⁸ Contemporary reform inherits a history that returns us to the nineteenth century and its reorientation of common law adjudication around the legislative will of the state and its corresponding modes of governance and administration. In the wake of this reorientation, the initial and salient discourse is that which emerges in the 1970s.

In this first moment, rape law is placed within a discourse of political, cultural, and social change. The jurisdictions of NSW and SA provide illustration. In the latter, the Criminal Law and Penal Methods Reform Committee (the Mitchell Committee, as it has since become known) reported in 1976 on the reference it had been given by the then Labor Government of SA. It was the first substantial review of rape law by a law reform body in Australia and its report has provided one of the main touchstones for subsequent reforming efforts throughout the various criminal jurisdictions of Australia—not only by virtue of its historical appointment, and the systematicity of its legal purview, but also because it marked out rape law as holding a distinctive place and urgency in any reform of criminal law. Its Special Report begins by doubting that there was “substantial dissatisfaction” with the current law of rape but strangely adds that “there is clearly widespread disquiet” (CLPMRC, 1976: 1). It is this disquiet that is claimed as warrant for an extensive review. Sallmann and Chappell summarise the pressures for change that exerted a pull on the Committee and the raft of legislation generated in its aftermath:

Overseas developments generally, the Women’s Liberation Movement, the Morgan case,⁹ the fact that 1975 was International Women’s Year, the reformist character of the South Australian Labor Government, and of particular individuals within it, the influence of women’s groups in South Australia, and one or two particular rape cases, and, needless to say, a number of other factors, combined to create a situation favourable to reform. (1982, p. 10)

However, despite the force and prevalence of the activism of the women’s movement and a progressive state government, the recommendations of the Mitchell Committee do not advocate significant change to the substantive law of rape. While recognising that rape is a crime that is legally composed of an uneasy and inevitable amalgam of sex and violence, that the marital immunity provided for husbands needs to be at least partially abolished, and that the age of the ‘victim’ as well as the cognitive impairment of the victim demand special treatment in the law of sexual offences, the Committee nevertheless fails to register explicitly the fact that rape is a gendered crime.

The NSW enterprise of rape law reform provides a stark contrast. In 1981, the then Labor Government introduced the Crimes (Sexual Assault) Amendment Act 1981 (NSW). Where the South Australian approach characterised community attitudes as disquiet without dissatisfaction, in NSW there was substantial community consultation with and recognition of women’s activism at both a state and national level (Scutt 1980, for illustration). Such activism had taken place throughout the preceding decade, with the first Rape Crisis Centre in Australia being opened in Sydney in 1974. The tenor of this activism was to reconstruct and treat rape as a crime of violence akin to an assault. As the NSW Attorney-General stated in his preface to a pamphlet explaining the legislative changes: “Sexual assaults are primarily acts of aggression aimed at subjection and humiliation” (NSW Women’s Advisory Council 1981, p. 3). Furthermore, it was understood and accepted that, although the statutory reform addressed the harm to all victims of sexual assault, sexual assault was typically an instance of violence against women.

This initial moment of rape law reform in Australia was thus dominated by two prominent concerns. First, the reform enterprise represented law as an instrument of social policy and ideological change. While there was vigorous debate about how to design the reformed laws, law was understood as the means of repairing the social fabric torn by violence against women. The legal concern was the restoration of political order. Related to this instrumental and restorative presentation of law, the understanding of rape was directed away from a representation of sexual relations and towards an accounting of rape as a social and political problem of violence—and, for some, violence against women. I will return to how violence is represented and can be refigured in part 3, but for now it is sufficient to note that the question of violence transforms rape and rape law into a cipher through which to elaborate and document the place of women in society and specifically the administrative and ideological limits which structure women’s participation in civil society.

The final decade of the twentieth century signals a second period in the Australian enterprise of rape law reform. The earlier reforms were monitored and evaluated by academic researchers, and government bodies.¹⁰ The enterprise of law reform had become established as a permanent feature of the landscape of rape law. And by the end of the 1980s, a new round of legislative reforms began to emerge in several state governments. In this instance, the discourses of rape law reform build on the concern with women’s participation in civil society but begin to reorient the criminal law of rape. Here, rape and rape law will continue to appear as a matter of violence but that violence will increasingly be framed as a breach of individual autonomy and under the banner of gender neutrality.

Gender neutrality was embodied in the substantive definition of rape in a number of ways. One, where the common law had limited its prohibition of rape to ‘carnal knowledge’ by a man of a woman, the new legislative regimes expanded the range of sexual acts prohibited. The reform enterprise in Victoria is typical.¹¹ In the plain language that was increasingly adopted, carnal knowledge was translated into sexual penetration. The modes of penetration were extended to include the introduction of the penis into the vagina, anus or mouth of another and the introduction of a bodily part (other than the penis) or a non-human object into the vagina or anus of another.¹² In this clinical definition—or “mechanical” definition as it is now called in international criminal law¹³—both men and women can be but not necessarily are both rapist and victim. In doing so, the formal definition provides a reverse image of the empirical reality of rape. Or, as Graycar and Morgan characterised the approach of gender neutrality, the legislation provides “equality with a vengeance” (1990, 340). Apart from such feminist ironies, the extension of sexual conduct captured by the reformed definition of rape was also perhaps one of the unintended side-effects of the movement to decriminalise homosexuality in Australia. With the piecemeal removal of the crime of buggery from the legal calendar in the various states and territories, acts which had been legally identified as ‘homosexual acts’ were subsequently incorporated into definitions of rape by way of their gender neutrality.¹⁴

A second way in which gender neutrality was embodied in rape law reform is the norm of consent. In the middle of the nineteenth century, the terminology of will (was the carnal knowledge against the will of the woman?) gradually shifts towards a language of consent (was the sexual intercourse without the consent of the woman?). Along the way, force is abandoned as a logically necessary element in a prosecution for rape.¹⁵ What is to be noted however is a second transformation which is allied with gender neutrality: where consent emerged at the level of the definitional elements of the crime, what is initiated in the 1990s is an increasing emphasis on structuring the entire legal regime of all sexual offences around the standard of consent—consent becomes the justification of the law and its reform, the governing term of the reformed definitions, as well as the controlling assumption of evidential standards of relevance and credibility. Thus, the standard of consent is used as the key point of discrimination between, on the one hand, general offences of rape and indecent assault, and on the other hand, sexual offences against children and people with a cognitive disability. In addition, the standard of consent increasingly dominates each of the definitions of a sexual offence, to the exclusion of standards of force, violence or coercion. We have already seen that the approach of the Mitchell Committee in SA was to maintain and consolidate the role of consent in rape law, whereas the NSW approach was to put consent to one side and, as one official and influential commentary put it, “to the maximum extent possible, place primary emphasis on the violence factor in sexual assault” (Woods 1981, p. 12). Yet, just under a decade later, NSW reintroduced the standard of consent—the prosecution were required to prove absence of consent for all of the gradations of sexual assault [Crimes (Amendment) Act 1989 (NSW)]. There are many local factors that make sense of this reintroduction but significantly it is part and parcel of a movement nationally (in Australia and overseas) to order the entire legal regime of sexual offences, rape and sexual assault included, around the juridical norm of consent. It is now the case that all criminal jurisdictions in Anglo-Australian criminal law require proof of absence of consent (and in some jurisdictions, knowledge or recklessness on the part of the accused as to whether the complainant was consenting). It remains the case, however, that while gender neutrality is embodied in the formal element of consent, the response to the survivor of rape and sexual assault by the institutions of criminal justice use this standard in ways that are differentiated along the lines of gender and sexual orientation (Kaspiew 1995; Young 1997).

In overall terms, then, this second period in the enterprise of rape law reform continues to situate law within a problematic of social and political change but does so in the idiom of the vulnerable.¹⁶ As a Western Australian report on the prosecution of sexual offences boldly states:

Victims of sexual offences are at the heart of this inquiry … The courage of the victims of sexual offences in coming forward and providing statements to the Committee, at the risk of reliving their personal trauma, is both acknowledged and especially appreciated. Without their stories this Inquiry would have been significantly less able to identify and respond to the issues surrounding the investigation and prosecution of sexual offences. (Community Development and Justice Standing Committee 2008: p. xi)

This reconstruction of the victim as vulnerable—measured by the virtue of courage and more generally the politics of trauma—enables the discourse of law reform to proceed in a double register: both documenting the differential effects of rape and sexual violence on the various segments of the community, and at the same time promoting the protection of the vulnerable in gender-neutral terms. The experiences of survivors of sexual violence are increasingly presented in the fragmented but juridical terms of status—gender, sexual orientation, class, ethnicity (‘non-English speaking background’ or ‘born overseas’ being the official categories), age, cognitive disability, and so in a proliferating series of group identities. As Laura Hengehold has demonstrated in her analysis of a woman’s decision to define an event as rape, “this decision places her at the crossroads of conflicting popular and expert attitudes regarding the meaning of sexuality and justice”. She adds that these incommensurable discourses “can overshadow or undermine her own understanding of the sexual events that she tries to master through the evaluation of rape” (2000, pp. 190, 191).

A third critical period of Australian rape law reform is constituted by the contemporary politics of rape law reform. It is somewhat difficult to discern a difference that constitutes the contemporary as the site of a new practice of rape law reform. Continuities abound. There remains a concern with the conditions upon which individuals are afforded the opportunity to participate in the civil life of the community, although less often is this presented as a vindication of the rights of women. Similarly, the enterprise of law reform takes for granted that the problem is best posed in terms of gender neutrality and the experiences of survivors is best represented by the empirical regularities of observable facts that document the victims of sexual offences. Along the way, the responsibilities of law towards women and survivors of sexual violence are displaced by a discourse of the vulnerable. In the contemporary moment, nevertheless, these concerns and effects are increasingly phrased and given meaning by a discourse that frames rape and rape law as a problem of public health and human rights.

Consider the most recent legislative reform of sexual offences in Victoria. The first objective is legislated as being “to uphold the fundamental right of every person to make decisions about his or her sexual behaviour and to choose not to engage in sexual activity”. The legislation also states a second objective: “To protect children and persons with a cognitive impairment from sexual exploitation” (Crimes Act 1958 (Vic), section 37A). On its face, there is some tension here between the declaration of fundamental rights and the declaration of victim’s rights. This is symptomatic of a more widespread tension between the universality of human rights and the concreteness of the legal practices in which it emerges as well as the embedded quality of the social practices it wants to manage (Douzinas 2000). But what I want to note here is the way, again, the discourse of fundamental rights functions to subsume the factual heterogeneity of survivors under the general category of the vulnerable. The new legislative regime in Victoria not only enacts “objectives” but also what it calls “guiding principles” for the interpretation of the legislation. These guiding principles are presented as condensations of social scientific facts: there is a high incidence of sexual violence, an underreporting of sexual offences, a significant number of offences are against women, children, and people with a cognitive impairment, and so on (Crimes Act 1958 (Vic), section 37B). Women are positioned as one more instance of the vulnerable who the language, policy and legislation promises to protect. Fundamental rights appear as the rights of the vulnerable human but never quite as the rights of women as such (MacKinnon 2006).

Alongside the discourse of fundamental human rights, there also has emerged a discourse of public or social health. Sexual violence—rape included—is presented as a problem of the costs to the community. It places a burden on health services, as well as criminal justice agencies. Thus, regulation and prevention are said to reduce the institutional and communal burden of rape in a social situation of competing demands for scarce financial and human resources. This has a number of effects on the orientation of the enterprise of rape law reform. One is significantly different to prior moments of reform to merit noting: the increasing dominance of the function of auditing. Reform is predicated on auditing the treatment of survivors of sexual violence by the institutions of criminal justice. The resulting task of reform is thus presented as the administration of bureaucratic institutions: managing and coordinating the heterogeneous institutions that concern themselves with the treatment, care, counselling and protection of victims. And all that remains to be done by the reforming enterprise—or at least, the objective of such management—is to smooth out the gaps, disjunctions and overlaps between the various institutions (forensic services, medical services, police and prosecutorial institutions, as well as centres against sexual assault, and so on). As one recent Victorian report put it, the aim is to create “a single unit providing victims with a consistent and seamless service” (Heenan and Murray 2006, p. 9).¹⁷

In sum, the contemporary discourse of rape law reform manages the crisis of classification engendered by rape through a pragmatic amalgam of formal gender neutrality and the empirically differentiated statuses of the vulnerable victim. Instead of a vindication of the rights of women and their participation in the communal life of Australia, what has emerged as dominant in contemporary projects of rape law reform is a discourse of public health and human rights which construes the task of reform as a managerial one of auditing social facts and coordinating institutional heterogeneity. In all this, the survivors of sexual violence can only be heard in the various fora of law and law reform if they take up the subject position of the vulnerable and so forgo a hearing of their experiences as survivors.

Frames of Reference

Inheritance is plural. As the above history indicates, there are many themes and frameworks that have given shape to the project of rape law reform when responding to the claims and counter-claims of sexual violence. Significantly, as these frameworks have shifted and been transformed, the central categories and terms have assumed different values and meanings. Most obviously, the categories of violence and of consent have occupied different places in the architecture of the criminal law of rape and its reform. In short, the enterprise of rape law reform inherits an internally differentiated tradition that is marked by changing idioms and a bewildering array of structures. In this part, I turn to a synchronic presentation of the frames of reference that mark the discourse of rape law reform. Two strands are prominent in my representation: the forms of knowledge that have structured the manner in which it is possible to articulate the reform of rape law; and the ideological and cultural resonances that give meaning to specific projects of reform.

Nationalisation/Internationalisation

The subject of criminal law in Australia has historically been a matter of the common law of England. The enterprise of rape law reform has thus been required to engage the common law tradition as a matter of the relation between English common law and Australian criminal law. One form this has taken—and which was dominant in the early years of modern rape law reform—is to generate reform as a practice of selectively abolishing particular rules that were attributed to the common law tradition and its patriarchal or at least non-liberal expression of rape and sexual offences. To the extent that rape and rape law is a cipher of gender domination, responsibility for such domination is sheeted home to the common law—and specifically the common law of England. The common law rules have been many but most were concerned with the law of evidence and procedure, albeit that some of these—such as the marital immunity of husbands, and the presumption of incapacity to rape for boys under the age of 14—had been raised to the level of substantive rules of the definition of rape. The evidential rules are now familiar and include the requirement that the judge direct the jury that it is dangerous to convict on the uncorroborated testimony of the complainant; the admissibility rules permitting evidence of the complainant’s sexual history, sexual reputation and sexual experiences on the basis that it was relevant to whether she consented to sexual intercourse on this particular occasion with this particular accused; the doctrine of recent complaint creating difficulties for those complainants who delayed in reporting the crime. While all of these rules were subject to piecemeal reform from the 1970s on in Australia, it remains the case that at the level of legislation they were only selectively abolished and remain operative in some form in current law, and at the level of adjudication they still play a part in the prevalent narrative of character generated through witness examinations concerned with themes of intoxication, sado-masochism, and transparent modes of dress (Young 1998).

The relation between English common law and Australian criminal law manifests itself in a second manner—namely, the fact that Australian rape law reform has turned its gaze in the direction of national, overseas and international jurisdictions. The turn towards a national frame of reference emerged in the 1990s. This was part of a wider movement to develop a national criminal law in Australia which was not dependent on the common law courts of England.¹⁸ This can be discerned in the efforts by the High Court of Australia in a series of judgments on criminal law to discover underlying “harmonies” among the criminal laws of both the code and common law jurisdictions in Australia. At the level of executive rather than judicial governance of crime, the most notable instance in the context of rape law reform was the establishment of the Model Criminal Code Officers Committee (formerly the Criminal Law Officers Committee) by the Commonwealth Government in consultation with state and territory governments. In 1996, the Committee released its discussion paper on that part of the Model Criminal Code which would address what it called “sexual offences against the person” (MCCOC 1996; for evaluation see Rush and Young 1997). Considerable community consultation as well as public meetings were held in major cities and rural centres throughout Australia. Three years later, it released its Final Report on the regime of sexual offences which it recommended for inclusion in a criminal code (MCCOC 1999). None of these recommendations has been legislated but it remained important in two ways. First, since much of the structure and terminology of the recommended code provisions drew on the existing Victorian legislation, it consolidated the gender-neutral and consent-based structure of sexual offences. And second, it added impetus to ongoing rape law reform projects at a state and territory level.¹⁹

The internationalising of the frame of reference of Australian rape law reform is a fundamental dimension of contemporary projects of rape law reform. Early efforts were guided by local pressures, and a discussion of state law and English principles of criminal responsibility. This was particularly the case with the Mitchell Committee in South Australia in 1976. But the frame of reference included the USA. Although relegated to a footnote in the Mitchell Committee report, the Michigan model of sexual assault reform established in its Criminal Sexual Conduct Act 1974 has been iconic since the 1980s. Organising its legal structure around a graded offence structure which defined rape as a violent crime, the Michigan legislation was the subject of considerable academic, policy and governmental debate throughout Australia.²⁰ And, by some measures at least, it provided the model for the Crimes (Sexual Assault) Amendment Act 1981 (NSW).

The Michigan model marks the start of the expanding international frame of reference. However, where the USA provided the initial overseas reference point after England, it has been displaced somewhat in the last decade by Canadian models of rape law reform. South Africa has also emerged as a possible source of models for new ways of addressing the failures of legal reform in Australia. That said, none of these jurisdictions—with the possible exception of English criminal law—has been adopted to establish a systematic reform of the existing structure of rape law in Australia. Rather, while comparative legal and social analysis is now a dominant part of specific projects of rape law reform, that analysis has invariably resulted in piecemeal changes to rape law.²¹

The Knowledge of Social Scientific Reform²²

The nationalisation and internationalisation of rape law reform in Australia can also be understood as part of a transformation of the forms of knowledge which dominate the enterprise of rape law reform. As I have suggested, one effect of the (inter)nationalisation has been the selective abolition of the common law of England. The assumption was that by getting rid of the discrete rules that were associated with the common law, the transmission of the tradition and its gendered systems of meaning or value would also be put to one side. While this is disputable, here I want to take up the form and idiom of knowledge that is put in its place.

Rape law reform has seen a movement away from an analytical presentation of criminal law and its doctrinal architecture of general principles of criminal responsibility. Initially what was required of the reformer was a knowledge of the legal rules and the technical forms of their presentation within the common law tradition of criminal responsibility. However, the subject of rape law reform is no longer dominated by the doctrines of criminal responsibility and their operationalisation in offence definitions and element analysis.²³ Rather, rape law reform has required a different form of knowledge to be exercised by its practitioners—namely, the social scientific presentation of the order and governance of crime. In this approach, the impetus and starting point is the social patterning of rape and sexual violence. The contexts within which rape takes place, the typical situations of sexual violence (where and how it occurs), the typical character of the perpetrator, as well as the types of victims that are targeted, are extensively documented by law reformers, policy institutes and academics. Analogously, if the reform is of the law, then what is also required is a knowledge of the character, roles and training of criminal justice professionals, the regulatory policies of their institutions, the administrative categories (such as ‘complaint withdrawn’), and the stereotypical belief systems that these characters, policies and categories reflect. The social problem of rape is thus supplemented with a knowledge of the facts and attitudes of the institutions of criminal justice. What is required now of the reformer is primarily a knowledge of the socio-institutional problem of rape and only secondarily a knowledge of the legal categories, of the element analysis which unifies these categories into an object of legal representation, and of the juridical traditions which give them value.

Rape law reform presents and relies on social scientific research to justify the need for reform, to reason towards specific proposals and to design institutional reform initiatives.²⁴ Such research has registered the empirical data concerning the incidence and prevalence of rape and sexual violence locally and nationally (e.g., ABS 2006, p. 17; ACSSA 2008; Taylor and Putt 2007; AIC 2009, pp. 22–24). And in demonstrating the undoubted attrition rates, social scientific research has repeatedly audited—with increasing precision and nuance (Lievore 2004; Fitzgerald 2006)—the responses of criminal justice institutions to reporting, investigating, charging, prosecuting, verdicts and appeals.

The current statistics on the incidence and prevalence of rape and sexual violence show nothing remarkable in comparative terms. Official crime statistics display low rates until the 1970s, when there is a sharp increase. From the 1980s onwards, the incidence of rape in the official statistics has increased markedly. These official statistics have been supplemented by victim surveys and other forms of qualitative documentation. As Hogg and Brown remark: “[V]ictim surveys suggest that the incidence of … sexual assault [is] at least four times the figure recorded in official crime statistics” (1998, p. 12). And, as the Fig. 1 indicates, the number of victims of sexual assault has steadily increased over the last decade across Australia (Fig. 1, AIC 2009, p. 24)

Fig. 1

Sexual assault victims from 1995 to 2007 (number per month) (Source: AIC 2009, p. 24)

The actual number of sexual assaults reported has increased over the same period. Since 1995, the annual increase has been 4% each year; the total increase being 51%. The primary jurisdictions responsible for the recorded sexual assaults are Victoria, NSW, South Australia, Queensland and Western Australia. In 2006, these states—both common law and code jurisdictions—account for some 95% of all reported assaults (Australian Institute of Criminology 2008). The most common diagnosis of this situation is to link it to the reforming enterprise itself—either the increase is attributable to the reforms and not evidence of an increasing incidence, or the reforms themselves have failed and another effort is needed (cf. O’Brien et al. 2008). In addition, it remains important to add that the victims of sexual assault and the survivors of sexual violence are overwhelming female (women and children)—albeit that, as the Personal Safety Survey conducted by the Australian Bureau of Statistics in 2005 indicates, sexual assault against men is significant. As the survey records, some 42,300 men aged 18 and over experienced sexual assault in 1 year (2004); about 44% of them experienced sexual assault by a family member or friend; 35% by a person who was known to them (but not family or friend) and 33% by a stranger (ABS 2006).²⁵

Social scientific research—specifically, empirical criminological research—has not only documented the incidence or prevalence of sexual assault, it has also audited the institutional response of criminal justice agencies and services. Attrition has been the leitmotif. Numerous investigations of the attrition process have been conducted by independent researchers as well as by the Law Reform Commissions themselves. It remains the case in Australia that the institutional and public meaning of rape—as well as its meaning for the survivors—remains structured by a process of filtering out at all stages of the criminal justice process: survivors are discouraged from reporting, complainants are encouraged to withdraw their complaints (Heenan and Murray 2006), charges are unauthorised, prosecutions are not brought, acquittal rates are high, and appeals are often successful (e.g., Lievore 2004; VLRC 2003; p. 89; Fitzgerald 2006; ABS 2004; p. 77; Crime and Misconduct Commission 2003; Community Development and Justice Standing Committee 2008). There are problems with the ways in which studies of attrition represent the relations between differentiated legal institutions in a largely linear and hierarchised fashion.²⁶ One effect on policy formulations has been that attrition is linked with a perceived need to increase convictions. The objective of law reform and policy changes becomes to increase the conviction rates. To the extent that this is done in the name of the victim, the discourse of reform slips into a debate about the rights of the accused as against the rights of the victim.²⁷

The form of knowledge which has ordered the enterprise of rape law reform has shifted. Initially, what was required of the reformer was a knowledge of the legal rules and their place within the modern traditions—both legislative and common law—of criminal responsibility. As the above indicates however, this has receded and what occupies the foreground is a social scientific accounting of the incidence, prevalence and institutional responses which shape the observable facts of sexual violence. This social scientific form of knowledge is supplemented by the doctrinal categories of the criminal law of rape—but the categories are shorn of the tradition of experience and culture of argument which gave them meaning as law.

A Politics of Law and Order

A third frame of reference for the enterprise of rape law reform has been the emergence of a ‘law and order’ politics both worldwide and in Australia since the 1990s. In Australia, it was in evidence in Victoria under the Liberal state government of Jeff Kennett, and in NSW under the Labor state government of Bob Carr. At a national level, it becomes prevalent with the election of a federal Coalition government led by John Howard in 1996 and its dominance over the next decade until he was thoroughly ousted from office in 2007 by the Rudd Labor Government. The Howard Government pursued a neo-conservative agenda, and fought culture wars on numerous fronts. In the midst of these cultural wars, Hogg and Brown characterised the public and political debates as the “uncivil politics of law and order”. The incivility of debate they describe as:

closed and narrow rather than open and inclusive; inclined to disqualify rather than welcome diverse viewpoints; suspicious of knowledge and expertise where it fails to validate pre-existing prejudices; predisposed to populist pandering to private insecurities and resentments instead of the promotion of informed, public-spirited debate; and whose timeframe is always the short rather than the long term (1998, pp. 1–2; for their counter to this in the context of sexual violence, see pp. 63–66).

These incivilities in the context of rape law reform were conducted at national, state and local levels of government. Its emergence coincided with what I characterised earlier as the second period of modern law reform. Victoria is illustrative. At the time, the Kennett Liberal Government—with Jan Wade as the Attorney General—abolished the independent Victorian Law Reform Commission and pursued a law and order politics which in the governance of sexual violence—as well as in other areas—saw increasing sentences for rape and sexual offences.²⁸ With the demise of the Kennett Liberal Government at the hands of the Bracks Labor Government, the new Attorney General—Rob Hulls—re-established the VLRC, and one of its first references was to make recommendations regarding the state of the law of sexual offences. Nevertheless, the language of government, like that of the tabloid media, has continued to invoke and rely on the idiom of the ‘evil’ of sexual offences and the need to address that evil in Victoria. More generally, law reform projects have increasingly been conducted in the normative language of moral responsibility and a bureaucratic discourse of social policy, social management and institutional regulation.

A second feature of the law and order politics of reform was that the frame of reference for the ideological agendas being pursued was often particular cases and specific moral panics. I have noted the way increasing sentences and increasing conviction rates have often provided the occasion and objectives of rape law reform. There has also been a recurrent return to particular cases. An early example—albeit from the progressive side of state politics—was the way in which the House of Lords judgment in DPP v Morgan (1975) 2 All ER 347 and the issue of ‘rape in marriage’ provided the fulcrum of reform debate for the Mitchell Committee in 1976.²⁹ Another example comes from Victoria where the introduction in 2000 of a prohibition on compelling a person to sexually penetrate another provided a variation on the main offence of rape (Crimes Act 1958 (Vic), sections 38(3) and (4)). The apparent reason for the introduction of this offence was undocumented instances of male rape in prison (but see Heilpern 1995). And a final example is provided by the reforms that introduced what in NSW is called “aggravated sexual assault in company” and which the media refers to as gang rape. It was legislated in 2001 as a response to public controversy over the plea-bargaining process and the lenient sentencing of three young men charged with their joint and several participation in the rape of two 16-year-old girls in Sydney.³⁰ The issue of gang rape has since returned again in several Australian jurisdictions in the context of allegations of sexual assault by high-profile footballers—both Rugby League and Australian Rules (Philadelphoff-Puren 2004).

As these proliferating series of examples indicate,³¹ the rape law reform enterprise has periodically been captured by the lineaments of a law-and-order politics. Sometimes this politics has been conducted against feminist advocacy. Absent this specific ideological agenda, the trend of law-and-order politics in the context of rape law has been to introduce piecemeal reforms. And, unlike the other frames of reference, they place little reliance on research and community consultation.

Policy and Advocacy

The final frame of reference which has been important in establishing the limits of the enterprise of rape law reform in Australia is the dominance of policy advocacy. Its hegemonic status in contemporary rape law reform is part and parcel of two—sometimes overlapping—movements.

On the one hand, it draws sustenance from the reorientation of the form of knowledge away from the traditions of common law and analytical conceptualisation and towards the social scientific construction of law which I have already described. Governments and research bodies such as the Australian Research Council have put pressure on academic discourse to authorise itself by reference to the policy outcomes of the research being funded. Similarly, research institutions funded by governments, such as the Australian Institute of Criminology and the Australian Centre for the Study of Sexual Assault (the latter under the auspices of the Australian Institute of Family Studies), have engaged in social science research with a view to shaping public policy on sexual violence. And, although not specifically research bodies, there have developed a variety of public policy institutes styling themselves as independent think-tanks. In short, policy advocacy emerges as part of an enterprise of research governed by the demands and objectives of policy.

On the other hand, policy advocacy has formed part of the practice of women’s activism around sexual violence that emerged as part of the second wave of the feminist movement. Here, rape and sexual violence were the icons of gender domination—a cipher of women’s exclusion from civil society and its institutions, as much as the signs of the violence suffered by women at the hands of the criminal justice system. Rape Crisis Centres, Centres Against Sexual Assault, women’s refuges were among the patchwork of women’s and feminist institutions that were concerned with increasing the participation of women in civil society. The gains of this institutional movement cannot be underestimated and remain a central feature of contemporary projects of law reform in the urban and rural centres of Australia. What can be noted is that it required feminist activists—sometimes disparagingly referred to as ‘femocrats’—to engage with the policy discourses of government officials in order to get things done, to change the law with beneficial effects for women and the survivors of sexual violence. Rape law reform was increasingly framed by the facility with which feminist activism could constructively dialogue with various state, territory, and federal governments, as well as the various institutional arms of the criminal justice system—police, prosecutorial agencies, the judiciary, and the courts, as well as legislative bodies and independent law reform commissions. In this sense, feminist activism in the guise of rape law reform has increasingly been subjected to, if not completely dominated by, the governmental objectives of cost-effectiveness and efficiency (VLRC 2003: p. xii).

The Taxonomy of Rape Law

So far this article has constructed the enterprise of rape law reform in terms of its emergence and historical transformations, as well as the frameworks of knowledge and ideological resonances that have structured debates. This provides the field upon which current and future initiatives of rape law reform take place. Two prominent features which mark out that field are notable here. First, reform relies on slippages between the plural orders of the criminal law of rape. Central categories and terms of the discourse shift between the orders of justification (or ideological and cultural legitimacy), the definitional elements of the legal crime of rape, as well as the evidential and procedural dimensions on criminal justice institutions. Thus, for example, the substantive law of rape is often left in abeyance and subject to piecemeal, if any, changes; yet, at the same time, reforms to the procedures for eliciting and giving evidence (such as the increased use of CCTV), as well an increasing coordination amongst the institutions of criminal justice have come to the fore as a way of addressing the social problem of rape. Similarly, the recurrent debate over whether rape is a crime of violence or a sexual crime relies upon moving between the social problem of rape, the definition elements of rape, and the justification for the prohibition of rape. This movement between the different orderings of criminal law is both a symptom of the crisis of classification as well as a way of managing that crisis. A second feature concerns the form of knowledge. The crisis of classification that afflicts rape law reform is held in place, I have argued, by a double move: in one register, reform proceeds by documenting the differential effects of rape and sexual violence and its institutional registration in the criminal justice system; in another register and at the same time, it proceeds with the promise of protecting the vulnerable members of a heterogeneous public in gender-neutral terms. This double move is at stake when rape law reform invokes the discourses of civic participation, of autonomy, of law and order, as well as public health and human rights. The question that I address in this third and final part of the article is: does a space—and specifically a legal space—remain from which to imagine a reformed definition of rape? I want to suggest that a return to the grammar or syntax of substantive criminal law provides supple resources for such an imaginative possibility in the context of rape law reform. On the assumption that survivors of sexual violence, but not all survivors, will go to rape law for recognition of their experience, then the legal form of rape provides a ground on which to construct a space of expression within law.

Let me begin by returning to the vexed question of whether or not rape is best classified as a crime of violence or a sexual crime. This will provide a starting point for thinking through the taxonomy of the criminal law of rape, and so to a reformed definition of rape.

Since the late nineteenth century, criminal law has allocated the crime of rape to the border between the law of sexual offences and the law of assault. This border is maintained by a dispute over whether rape is a crime of violence or a sexual crime. The axiom guiding this emplacement is that the victim’s consent to the sexual acts of the accused is no defence to a prosecution for one of the serious non-sexual assaults. From this starting point, the argument is that, if rape is one of the more serious offences against the person in the criminal calendar, then the consent of the survivor should be no defence to a prosecution for rape. The logical rigour of this syllogism can hardly be disputed. But current law proceeds otherwise: despite the fact and formal definition of rape including elements of violence, the crime of rape is nevertheless essentially a sexual offence. The effect is that the standard of consent is used to mark the border between violence and sexuality. In this argument and counter-argument prevalent since the 1980s in Australia and elsewhere, what is staged is the predicament of telling the difference between violence and sexuality, while at the same time remaining lawful. However, this crisis of classification—in which a dialectic of violence and sexuality is also phrased as a dialectic of theory and practice, form and substance, myth and reality—can be displaced by giving due attention to the syntax which orders the legal relations of rape. In order to make good on this claim, it is necessary to set out in summary fashion the elements of the definition of rape in current Anglo-Australian law. These will be somewhat familiar in many jurisdictions.

There are basically three elements of the legal definition of rape. The first concerns the voluntary sexual act(s) of the accused. This is variously named sexual penetration, sexual intercourse, carnal knowledge. In this definitional context, the standard of penetration has been used to distinguish the general offence of rape from the general offence of indecent assault. Yet with the extension and expansion of what counts as sexual acts for the purpose of rape—vaginal penetration, anal penetration and so on—this distinction is put under pressure. The crime of rape comes to resemble the law of indecent assault in as much as indecency offences have largely been constructed as regulating the permissible modes of sexual seduction and romance. The effect, contrary to what is typically claimed, is that the gender-neutralisation of the crime of rape has resulted in its increasing sexualisation; rather than a question of acts, rape becomes a question of sexual identity. One symptom of this classification problem is the recurrent anxiety over whether or not criminal law should be engaged in regulating the sexual lives of citizens.

A second element requires that the prosecution—in all Australian jurisdictions—prove that the sexual act of the accused took place without the complainant’s consent. This is one strand in the notorious standard of consent. For present purposes it needs to be noted that there are two countervailing tendencies prevalent in current law since the 1990s. One tendency presumes that the complainant was consenting and then goes on to elaborate the observable circumstances which will be recognised by law as rebutting the presumption. The other tendency uses a positive standard of consent which presumes non-consent on the part of the complainant. This positive standard was introduced by reforming legislation in various jurisdictions and generated what many have called a “communicative model” of sexual relations. This is registered in the statutory language of “free and voluntary agreement”—as if sexual relations were always already a sexual contract on the model of a social contract. But, in either tendency, non-consent is placed as a prohibited circumstance in the definitions.

The third element takes two forms—one used in code jurisdictions, the other providing the idiom of the common-law jurisdictions. In the former, the task of the prosecution is complete upon proof of the first two elements—unless the defence lawyer raises a defence of honest and mistaken belief by the accused about the circumstantial presence of the complainant’s consent. If such a defence is raised, then the prosecution will have to rebut the defence by showing that the belief was not honestly held; that is, that it was not factually or actually held by the accused at the time of the rape. Because this defence exists as a legal possibility, the code jurisdictions remain proximate to the common-law jurisdictions in Australia.

In the common law jurisdictions, the prosecution’s task is not complete upon proof of penetration and absence of consent. In addition, the prosecution must prove the indicia of a guilty mind. This interior and cognitive state is importantly related to the circumstance of consent. In the technical language of both the judges and the statutes, the prosecution must prove either that the accused knew the complainant was not consenting or that the accused knew she or he might not be consenting or, in some jurisdictions, that the accused gave no thought to whether the complainant was consenting. The former conjures up the doctrine of intention, the latter two options invoke the doctrine of recklessness (or, as it is called in some jurisdictions, ‘reckless indifference’). In most common-law jurisdictions, this is a fully subjective standard. On this basis, an honest belief in the circumstance of consent will negate the prosecution’s ability to prove either intention or recklessness. Reform has, however, hedged this in somewhat by legislatively requiring that the honest belief be held on ‘reasonable grounds’ or, in some state jurisdictions, requiring proof that the accused took ‘reasonable steps’ to ascertain the accuracy of his belief. Nevertheless, it has been repeatedly emphasised that this does not displace the defence of honest but mistaken belief in consent, and that it does not require an evaluation of the accused’s belief by reference to the ‘reasonable man’ standard associated with negligence. In effect then the defence of honest belief in the circumstance of consent to sex embeds in the very syntax of Australian law the cultural narrative that ‘no means yes’, albeit that the reforms have tried to restrict the incursion of this tall tale into the trial.

These then are the three primary elements in play in the juridical drama of rape. What they demonstrate is that the law of rape joins, without precisely identifying, socio-political narratives of gender and domination to a rule-bound analysis of law. This is news to few. What may be less familiar is the way in which this problem is tied to a distinctive way of classifying the legal ingredients of the crime. In order to get a sense of this, we need to return to the general principles of criminal responsibility and the way they order and unify the elements of offences against the person.

In modern criminal law, the architecture of general principles of criminal responsibility has been built historically by way of the definition of murder, and the remainder of the offences against the person are constructed in a descending series of variations on the definition of murder. What this means is that in large measure the syntax of the general principles orders the definitions of specific crimes by reference to the prohibited consequences. What is prohibited in the definition is the consequences of the acts of the accused—death in homicide, serious injury or injury in the crimes of assault (the terminology is harm and grievous bodily harm in some jurisdictions), and so on. Having identified the prohibited consequences, the prohibited mental state is always attached to those prohibited consequences—intentionally, recklessly, or negligently causing the prohibited consequences. In this syntax, the primary legal relation of responsibility is constructed as the mental state regarding the consequences of the acts of the accused. Of course, the accused must be shown to have acted, but the manner of acting and the circumstances in which the accused acts are legally irrelevant to the question of liability—whether you kill with a knife or with a gun or with poison is not to the point, in the same way that whether the victim consented to their death, harm or injury is not to the point.³²

Put like this, the syntax of the juridical image of rape is clearly anomalous. It is an offence against the person and it is a serious offence against the person but it does not use a consequential structure. It is not what used to be called a ‘result crime’. Alison Young and I have argued that the juridical crime of rape is a crime of circumstance (Rush and Young 1997, 2002). By this we mean that the definition of rape in most common-law jurisdictions in Australia and elsewhere predicates its criminal liability on proof of the circumstance in which the accused acts and the prohibited mentality with regard to that prohibited circumstance. As described above, the prohibited circumstance is the absence of consent by the complainant and the prohibited mentality is intention or recklessness as to that circumstance of non-consent. In effect, the injury or harm caused by the accused to the survivor of sexual violence is not prohibited by the law of rape. Put differently, the law of rape—by reason of its definitional syntax—does not provide a lawful space of expression for the experiences of the survivor of rape.

While this may seem a bleak conclusion, the recourse to the taxonomic structure of criminal law in generating the difference between the consequential syntax of homicide and serious assaults and the circumstantial syntax of rape provides a resource for a reformed definition. By using the grammar of general principles which predicates liability on proof of prohibited consequences, it is possible to construct a lawful definition of rape which has the effect of removing it from its anomalous position in law, rendering any and all references to the standard and indicia of consent legally irrelevant and hence not admissible, and which renders amenable the testimony of the survivor as to her or his experience of sexual violence.³³

Such a lawful definition of rape would be provided by the following:

A person who

• (a) sexually penetrates another person, and

• (b) causes injury to that other person

• (c) with the intention of causing injury or with recklessness as to causing injury is guilty of the offence of rape.

This definition models the crime of rape as sexual injury rather than as non-consensual sexual activity (whether fraudulent or forceful) by reference to the architecture of general principles of criminal responsibility used in offences against the person in as much as it focuses on the prohibition of the consequences of the accused’s conduct and the mentality of the accused in relation to those consequences.³⁴

There are many issues that could arise in relation to the terms and working of the definition: ‘injury’ is a term of legal art that is amenable to a number of different traditions of judicial interpretation; supporting evidential rules and principles would strengthen its operationalisation in the adjudicative context of examination and cross-examination.³⁵ However, it is the way in which it fits into the taxonomy of the criminal law that is germane to my argument here.

At first glance, this new definition looks like those legal reforms which made a brief appearance in the wake of the Michigan model of sexual assault in the mid-1970s and in Australia in NSW in 1981. It also bears some relation to the definition of rape in international criminal law provided by Prosecutor vs. Jean-Paul Akayesu (1998) Case No.ICTR-96-4, Judgment, and recently returned to in Gacumbitsi vs. Prosecutor, Appeal Judgment, ICTR-2001-64-A. In a sense this is correct: the Michigan and NSW models predicate liability on violence; Akayesu justifies its definition on the basis that it is a crime of aggression and liability is thus to be founded on invasion and coercion. It is for this reason that Catharine MacKinnon has memorably argued that Akayesu has legs (MacKinnon 2006). However, there is a key difference: the issue of violence and coercion in these approaches appears as a way of registering the empirically observable facts of violence and coercion—or, in a juridical idiom, violence and coercion appear as the prohibited circumstances of the crime of rape. A consent standard is replaced by a violence/coercion standard and the legal syntax that focuses on the circumstance remains unchanged and unchallenged.

In the context of international criminal law, a focus on circumstances of violence and coercion has some purchase since the taxonomic difficulty presented by rape in international criminal law is that it must be allocated to one of the available juridical categories—such as genocide, war crime and/or crime against humanity. And the genius of the judgment in Akayesu was to turn these juridical categories into empirical circumstances of coercion and so open up a legal space for the recognition and definition of rape in international criminal law. Yet, in the context of domestic or national jurisdictions of criminal law, these categories do not exist as lawful categories. Rather, violence and coercion exist as empirical circumstances of a social context. To be sure, these circumstances of a social context structure women’s experience of life but they cannot be identified or made to correspond with the juridical categories of the national jurisdictions of criminal law. For this reason, the reformed definition presented above does not translate the social circumstances of sexual violence and coercion into the juridical circumstances of consent and violence, but rather re-imagines them by twisting them in the direction of a juridical syntax of prohibited consequences.

Conclusion

The research, themes and form of argumentation presented here has engaged with the enterprise of rape law reform across a number of vectors. One has concerned the concepts and figuration of criminal law. While jurisdiction—the power and authority to speak in the name of law—identifies an easily recognisable field of criminal law, there is nevertheless a sense that criminal law scholarship has considerable difficulty holding on to the various elements of jurisdiction as the very matter of law. This article has specified the material of criminal jurisdiction in terms of classification and the technology of taxonomy. The benefit in the context of rape law reform is that the analysis holds on to and maintains the question of reform as a question of law, rather than deferring legal matters to an instance beyond the forms of law. A second vector is more specific to rape law reform. Here, the article has attempted to present rape law reform at the crossroads of a plurality of jurisdictions. To the extent that rape law reform is understood as a jurisdiction of sexual assault, then that jurisdiction never quite coalesces into a unified enterprise. The historical and structural presentation in the first two parts of this article have the benefit of showing that this is not a hurdle to be overcome, a stumbling block to be avoided and managed. The crisis of classification that assails rape law reform is one that does not so much consign reform to a stalemate as presents the fracture or fissure through which reform remains a potential of law.

It is this potential that is taken up by the argument in the final part. Perhaps against the prevailing trend with its emphasis on policy and regulation, on justificatory aims and moral commitments, on procedural reform rather than substantive law reform, the article returns to the classification regimes that inaugurated the modernity of contemporary criminal law. The prosaic example concerned the juridical distinction between crimes in which the object of prohibition is the consequences of our actions, and crimes in which the object of prohibition is the manner or circumstances of our conduct. In this respect, the crime of rape is anomalous: offences against the person—and especially serious offences against the person—are consequential or result crimes but rape is legally presented as a circumstantial crime. By returning to an analysis of the elements of rape, it becomes possible to imagine a new and different legal definition of rape: one that is consequentialist in design and effect. The benefits of doing so are many. Perhaps the least important is that it provides a way of sidestepping the familiar contours of the violence/sexuality predicament. More important is that it provides a way of constructively engaging with the forms of rape law without writing them off as formal and a matter of semantics in favour of procedural reform. And most important of all is that it provides a way to engage with the undoubted demand of survivors of sexual violence that the law of rape recognise the experience of their suffering. Of course, not all survivors make this call upon the criminal law. But for the many who do, the effort of reform can provide a way to situate the testimony of survivors of sexual violence on the field of law and to do so without foreclosing on their experience of violence.

All of this seems a lot to ask of a somewhat prosaic return to the taxonomies of criminal law and its grammar of criminal responsibility. More than this, such a return itself may strike some as a backward even retrograde step. My argument, however, has been more modest. Simply put, a return to taxonomy provides powerful and supple resources for the enterprise of rape law reform. In part, this is because the enterprise of rape law reform continues to draw on plural traditions, albeit that social scientific representations of sexual violence and rape crowd the debates. Moreover, it is a resource because the definitional enterprise of crime which has characterised much of the modern jurisprudence of criminal law has a quite specific audience: definitions are first and foremost addressed to the judiciary and other legal professionals who dwell within the legal traditions and social institutions of criminal justice. This was recognised in Australia when, in one of the more innovative reforms of Victorian rape law, legislation was introduced which spelt out what the judge should and should not say to the jury in a sexual offence trial in their charge. More recently, this was supplemented by general statements about the justification of the approach of the reformed legislation and guidelines as to the desired interpretive method.³⁶ If the officers of the law are addressed through the grammar of rape law, then the demand of survivors for recognition is also addressed in some measure to them. The chance this offers is that survivors of sexual violence may be afforded a different voice within the jurisdiction of rape. This, I suggest, is the least worst option in as much as the testimony of sexual violence is given a space of lawful expression not just in the evidential and procedural laws of crime, but importantly in the very legal definition of the crime of rape. In so doing, it holds the legal institution before both its own articulation of the general principles of criminal responsibility and the survivors of sexual violence who come before the law. Such, it may be said, is the responsibility of law reform and our ongoing attempts to rethink the jurisdiction of sexual assault in the face of the legal institution’s parsimonious response to the pain and suffering of survivors of rape.