NCJ Number
69674
Journal
Criminal Law Journal Volume: 1 Issue: 6 Dated: (December 1977) Pages: 305-319
Date Published
1977
Length
15 pages
Annotation
While rape law reform has occupied the time and attention of State legislatures in Australia since 1976, the State's Law Reform Commission reports reflect an incomplete approach to the problem thus far.
Abstract
The three reports completed by 1977 are those from New South Wales, Tasmania, and Victoria. Of these, the commission reports which favor a statutory definition of rape confine their recommendations to a statutory statement of the common law. All favor the presumption that the mental element (mens rea) in rape is an intention to have nonconsensual intercourse, not merely an intention to have intercourse with a woman who is not, in fact, consenting. Some reports whould abolish the immunities of age (boys under age 14 are immune and marriage (spouses are immune). The New South Wales proposals extend the actus reus of rape to a variety of acts and create an offense which can be committed on men as well. Gradation of the ofense of rape was also recommended in New South Wales. All these recommendations are directed at the problems of applying the old common law. However, no matter how the common law is remodeled, extended, or made 'nonsexist,' the law continues to reflect the sexual relationship as one of active 'doing' party and passive 'consenting' party. Yet the substantive law of rape should be reconsitituted to reflect a relationship of mutuality be it male-female or male-male. One major criticism to be made of all rape law reforms is that they treat rape in isolation from other sexual offenses. In this respect, the Michigan Code is to be commended for specifically identifying the behavior proscribed (thus avoiding whether or not rape is a crime of violence), for applying the statute to both sexes, and for reducing the importance of the element of lack of consent and focusing attention upon the acts complained of rather than the mental attitude of either the alleged victim or the alleged offender (and thus emphasizing mutuality). The Law Reform Commissions have not, thus far, employed broad vision and thorough inquiry in examining the problem of rape. Forty-six references are provided.