It's time to abolish the crime of rape

Recently, the Four Corners program on the ABC documented the case of a young woman called Saxon Mullins and the man Luke Lazarus who was convicted of raping her and then had his conviction overturned by on appeal on the grounds that he genuinely believed she was consenting to intercourse.

This case highlights the problem with our rape laws as they currently stand.

First of all let me say that the Appeal Court judge erred by exonerating the accused in this case. If the court had applied the “reasonable man” test, Lazarus’s conviction would have stood. The “reasonable man” test is a criterion often imposed in legal deliberations based on how a reasonable person might be expected to act in a given circumstance. In this case, although Mullins admitted she did not clearly and forcefully tell Lazarus to stop, or could not recalling doing so, no reasonable person would have expected an 18 year old woman who has never had sex, to want her first sexual experience to be on her hands and knees in a filthy back alley being anally penetrated by a man she had just met.

There is also the fact that Mullins admitted she had consumed a fair number of drinks which suggests her ability to consent or to maintain control of the situation was very likely to have been impaired. That is something that Lazarus also should have understood. Again, a reasonable man should have realised that, even if she gave consent or appeared to be passively allowing intercourse to take place, because she had been drinking, her judgement was likely to be impaired.

The appeal court’s decision in this case seems to relieve the alleged rapist on any responsibility for ascertaining the state of mind of the alleged victim or indeed having any due care for her overall welfare. Indeed there is very little clarity in Law as to what the responsibilities of the man are (I am speaking of men having sex with women but the discussion applies to any combination of sexes) in relation to determining the state of mind of or the potential consequences for, the woman. For example does the man have to be convinced beyond a reasonable doubt that the woman is consenting, or can he just make a decision on the balance of probabilities. And how scrupulous is he supposed to be in making sure her consent is not only informed but is not emanating from some state of impaired judgement?

Furthermore, does the man have a responsibility for the welfare of the woman beyond the immediate situation? In the classical interpretation of the crime of rape, apparently not. To put it crudely, the traditional rule is if she allows it to happen, then it’s her fault, she bears the consequences.”

The problem is the crime of  rape is a binary concept. An act is either rape or not rape depending on whether there was consent or not consent. But the idea of consent itself is essentially an artefact of the legal system. It fails to reflect the actual complexity and subtleties of sexual encounters. Because a judge or a jury has to find the defendant guilty or not guilty – which is a binary decision – the basis for that judgement, which is consent, has also been configured as a binary concept.

But consent cannot be considered as a simple matter of yes or no because it can be obtained in so many different ways. Consent can be obtained through promises, payment, fear, fraud or the deliberate impairment of judgement. Threatening someone with a gun or a knife can clearly elicit consent. Intercourse with someone who is unconscious or disoriented by drugs or alcohol to the extent that they are not aware of what is happening is also not consensual and situations where a woman has sex with a man thinking he is someone else also negates consent. So even under the traditional tests, consent alone does not legitimise intercourse.

But those invalidations do not go far enough. Explicit threats of violence or a visible weapon are not  required to induce fear. Fear can arise purely from the circumstances, from perceived or imagined threats. It can arise from a psychological condition in the woman herself. That fear might be unreasonable or unjustified but it still negates her consent.

If a court is prepared to give weight to the man’s subjective assessment of whether the woman is consenting, surely the woman’s subjective assessment of whether she is at risk must also be taken seriously.

To qualify all this let me explain that, in the late Sixties, I was part of team of researchers at Melbourne University who conducted a post-graduate study into the crime of rape. It was, at the time, one of the few studies and ever done on the subject and certainly the most comprehensive study done up to that time. One of the key findings of that study was that the traditional definition of rape as being intercourse without consent was inadequate and a recommendation was made that the crime itself would be better abolished.

It was clear to us that, rather than a binary definition of rape/not rape, there was a gradation between willing consensual sexual intercourse and forcible sexual intercourse with violence or death threats. Between those opposites lay a range of interactions and somewhere along that line was a point where those interactions changed from acceptable to unacceptable. It was the point where means of obtaining sex turned from legitimate to illegitimate: where courtship became coercion, where seduction became harassment and inducement became entrapment.

The suggestion of our report was that the crime of rape be replaced by a stature dealing with sexual imposition or sexual coercion. Fifty years later, partly because of the campaign against sexual harassment, that idea is finally starting to gain traction.

Traditionally the role of coercion has not carried sufficient weight because there was a notion that women should resist rape even to the point of dying rather than submitting to it. A woman who did not fight to the death was thought of as having placed her life before her honour. That is not so far from the situation in some countries where women are still imprisoned for being raped but it is worth remembering that shades of that existed in Australia as recently as about fifty years ago.

A reformed code of sexual violations would widen the concept of unlawful sexual acts to include any situation where the ability of a person to make choices that are free, informed and beneficial to themselves is impaired.

It would also impose clear responsibility on anyone instigating a sexual encounter to make all reasonable efforts to ensure the encounter was the result of an informed, uncoerced decision by the other party and further that there be no detrimental consequences for that other person. Furthermore it would define a criterion for establishing consent which would not be simply on the balance of probabilities but that which is used for criminal trials themselves – beyond a reasonable doubt.

There are many situations where consent is not so much invalidated as irrelevant. For example, a  situation that people I know have experienced: a man offers to drive a woman home but instead drives her to a remote location far out of town. She is given the choice of having sex or getting out of the car. Historically, if the woman agrees to sex, the man is not guilty of rape because he made no physical threats and the woman did have the option of leaving. He is however guilty of creating a situation where, if the woman does agree to have sex, or allow him to have sex with her, she is consenting to an act that she would not have otherwise consented to. That is the key element of coercion. In that situation, a court would traditionally have focussed on the decision that she made and decided she made a free and informed choice to have sex rather than walk twenty miles home. However that would be  to focus on the wrong issue. The issue is not what the woman decided: it is that she should not have been forced to make a decision at all.

(Incidentally, it is surprising to me that Lazarus was not charged with abduction since he told Mullins he was taking her to the “VIP” room of the nightclub but actually took her out to the back alley. Lying to her about where they were going makes it technically an abduction. It also goes to establishing his intentions since that lie was clearly the first step towards engineering a sexual encounter.)

Another case that is all too familiar is the situation where a woman finds herself compelled to have sex with a man just to get him to leave, or let her sleep. A man keeps a woman up all night till she is exhausted, or won’t go home until the woman gives in and consents to sex. This is in fact the literal meaning of harassment – to harry someone to the point of exhaustion.

The fact is that woman can be coerced, blackmailed or tricked into having sex in a number of ways that violate their autonomy but don’t technically qualify as rape or even assault. They take the form of fraud, blackmail, extortion, beleaguerment, psychological manipulation and various forms of domination.

Domination, which appears to be the key factor in the Lazarus case, is one of the most common and most dangerous forms of sexual coercion or bullying but  also the most likely not to be acknowledged as a form of coercion because of a long-standing notion that women find it erotic. Domination is the situation where the man does not become aggressive or threatening but becomes "masterful" giving orders and exerting control over the woman. Women, especially young women, are likely to find themselves with the man's instructions not because they are impressed by his masterfulness but because they simply don't know how to deal with the situation and regain their autonomy.

The main argument for replacing the crime of rape with general, graduated, crime of sexual coercion is that the acts which constitute sexual imposition - that is: extortion, blackmail, bullying, harassment, deception etc - are already illegal in other fields of human endeavour.

Many of the means that men use to obtain sex from women are methods that would invalidate, for example, a sales contract. A contract for the purchase of goods that was signed under duress, because of exhaustion, or fear, or false promises would be quickly invalidated by a court. But, oddly, the same scrutiny is not applied to agreements for sexual activity.

The point is that the criminality in a sexual assault or any other sex crime does not reside in the sex itself. The illegality lies in the means that used to bring the act about. We accept that you cannot obtain goods or money by deception, by coercion, by blackmail or by forcing people to make instant decisions. That’s why we have cooling-off periods for all major purchases such as houses and cars. The law recognises that people can be confused by sales pitches and will commit to detrimental financial deals that they later regret. In other words the law is prepared to protect us from our own decisions, even ones we made freely, or thought we were making freely, at the time.

Without wishing to trivialise of the Mullins/Lazarus case, imagine that, instead of it being about a woman having sex with a man in an alley, that Lazarus was a car salesman who had sold Saxon Mullins a car she didn’t want for an exorbitant price.  Any court would have annulled the sales contract saying, firstly, she was too young to enter into such a contract, that in any case it clearly wasn’t the sort of car she wanted and that he had taken advantage of her youth, inexperience and vulnerability to sell her a car which was basically junk. His defence that he “sincerely believed she wanted that car” would fall on deaf hears and he would be fined and probably lose his dealer’s licence.

Surely a young woman’s dignity is more important than a car.