Problems With Rape Trials * It is proposed to replace the current s.38 of the Crimes Act
(Victoria) with the following definition of rape:
* s.38 A person commits rape if -
* (a) He or she intentionally sexually penetrates another person
without that person's consent and
* (b) (i) Is aware that the person is not consenting or might not be
consenting;
* (ii) A reasonable person would, in all the circumstances, have
been aware that the person was not consenting or might not be
consenting.
Critically assess this proposal in terms of its likely impact on
(a) What the prosecution is required to prove; and
(b) Current problems with rape trials in Victoria.
At common law, the crime of rape appears to have required the
application of unlawful and felonious violence against the will of the
victim and completed sexual intercourse by force (Rush P & Yeo S,
2000). Over the years however, these essential elements have been
modified, and the common law offence of rape was abolished by s6 of
the Crimes (Rape) Act 1991, which came into force on 1 January 1992.
These modifications "softened" the crime of rape (Wallace et al, 2001
pp294), lending the focus from the original need for violence, to the
acknowledgement that violence need to be evidenced to prove that rape
or sexual offence occurred, in fact the focus being on the consent (or
otherwise) of the victim (Papidimitropoulos v R).
This essay will focus on the current prosecutorial requirements with
regards to consent issues, and the effect that the proposed
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... C 1989 Feminism and the Power of Law, Concluding remarks
Temkin J 1987, Rape and the Legal Process, Sweet and Maxwell, London,
pp 8-16
The Real Rape Coalition 1991, No Real Justice: The Interim Report of a
Confidential Phone0In on Sexual Assault, Victoria, July
Victorian Attorney General's Department (unpublished data), Management
Information Section, Courts Division
Victorian Community Council Against Violence 1991, Source Book of
Victorian Sexual Assault Statistics 1987-1990, Victoria, April
Victorian Law Reform Commission 1991, Rape: Reform of Law and
Procedure: Interim Report and Appendices, Report no. 42, Law Reform
Commission of Victoria, Melbourne
Victorian Law Reform Commission June 1988, Sexual Offences Against
People with Impaired Mental Functioning, Report No. 15 June 1988,
Paras 33 - 40
The applicant Mr. Arthur Hutchinson was born in 1941. In October 1983, he broke into a house, murdered a man, his wife and their adult son. Then he repeatedly raped their 18-year old daughter, having first dragged her past her father’s body. After several weeks, he was arrested by the police and chargedwith the offences. During the trial he refused to accept the offence and pleaded for innocence. He denied accepting the killings and sex with the younger daughter.
Bibbings , Lois , and Donald Nicolson. 2000. “General principles of criminal law'? A feminist
In conclusion, Rape Shield laws are in place to protect the victims, sometimes it works and at other times the victim can be ridiculed and their past can be advertised, due to many holes and ways around the
Successes and Failures of Sexual Offences Act 2003 The Sexual Offences Act 2003 was heralded as a response to shifting social attitudes, encompassing the broad libertarian approach towards sexual behaviour that has become increasingly dominant since the Act that preceded it whilst attempting to account for the myriad of more widespread sexual deviancies and abusive practices that were otherwise poorly regulated by existing statute. It was designed as a regularisation of the law on sexual offences giving a modern and consistent perspective upon the particular offences; one that would allow the courts to proceed on a fairer and less discriminatory basis, both in its prosecution of offenders and it in treatment of victims. Few statutes can have been subjected to the same level of public scrutiny as this Act, emerging from a climate of public concern over the adequate protection of their children and the proliferation of paedophilia. The abnormally low conviction rate for rape as well as socio-criminal phenomena like 'date-rape' or the effect of immigration on acceptable sexual practices were yet more facets of a many-handed debate about how the law should respond to a changing world. Understanding these issues is central to finding the coherent thread upon which different changes in the Act attempt to hang.
The New York Times bestseller book titled Reasonable Doubts: The Criminal Justice System and the O.J. Simpson Case examines the O.J. Simpson criminal trial of the mid-1990s. The author, Alan M. Dershowitz, relates the Simpson case to the broad functions and perspectives of the American criminal justice system as a whole. A Harvard law school teacher at the time and one of the most renowned legal minds in the country, Dershowitz served as one of O.J. Simpson’s twelve defense lawyers during the trial. Dershowitz utilizes the Simpson case to illustrate how today’s criminal justice system operates and relates it to the misperceptions of the public. Many outside spectators of the case firmly believed that Simpson committed the crimes for which he was charged for. Therefore, much of the public was simply dumbfounded when Simpson was acquitted. Dershowitz attempts to explain why the jury acquitted Simpson by examining the entire American criminal justice system as a whole.
A crime being committed is the first event to initiate our criminal justice system. On June 12th 1994 a double murder was reported at the residence of Nicole Brown Simpson the ex-wife of the then beloved Orenthal James (OJ) Simpson. It was discovered that Nicole Brown Simpson and Ronald Goldman had been brutally murdered and the Los Angeles Police Department (LAPD) began their investigation, this being the second step in our criminal justice system.
The meaning and penalties of rape have progressed throughout the history of America to ensemble the mindset of the time. Records show that a man in the seventeenth century was convicted of attempted rape if "he used enticement and then force toward a woman, driven by the sinful lusts that raged within him...and he allowed her...to scare or fight him off" (Dayton 238). Unfortunately, this definition was not always taken at face value. The leading men of the seventeenth century, likely white men, reformed this definition in a variation of ways to work in their favor when suspected of rape. It can be determined from study of historical information that the reason there are fewer reported rapes against white males in the seventeenth century and more against non-white males was because women gave in to a society driven by the influence and governance of white males in the legal system. This concept is demonstrated through a look into the outcome of a number of rape cases against both white men and non-white men, through an understanding of the helpless station of women, and through a view at the basis of the white man's resentment toward the non-white male: their view of the non-white male as the "other."
The criminal trial process is able to reflect the moral and ethical standards of society to a great extent. For the law to be effective, the criminal trial process must reflect what is accepted by society to be a breach of moral and ethical conduct and the extent to which protections are granted to the victims, the offenders and the community. For these reasons, the criminal trial process is effectively able to achieve this in the areas of the adversary system, the system of appeals, legal aid and the jury system.
(2) Whether a person is reasonable is to be resolved having respect to every one of the conditions, including any means A has taken to find out whether B assents (Sexual Offenses Act, 2003, p. 1).
Young, Alan. "The state is still in the bedrooms of the nation: the control and regulation of sexuality in Canadian criminal law." The Canadian Journal of Human Sexuality 17.4 (2008).
Nathaniel Hawthorne utilizes symbolism throughout his short story Young Goodman Brown to impact and clarify the theme of good people sometimes doing bad things. Hawthorne uses a variety of light and dark imagery, names, and people to illustrate irony and different translations. Young Goodman Brown is a story about a man who comes to terms with the reality that people are imperfect and flawed and then dies a bitter death from the enlightenment of his journey through the woods. Images of darkness, symbolic representations of names and people and the journey through the woods all attribute to Hawthorne's theme of good people sometimes doing bad things.
* Halley, Janet E.; "Reasoning About Sodomy;" Virginia Law Review; Vol. 79:1721; 193 p. 1740-1772.
Schopf, S. (1995). "Megan's Law": Community Notification and the Constitution. Columbia Universtiy School Journal of Law and Social Problems, 29
The present system of justice in this country is too slow and far too lenient. Too often the punishment given to criminal offenders does not fit the crime committed. It is time to stop dragging out justice and sentencing and dragging our feet in dispensing quick and just due. All punishment should be administered in public. It is time to revert back to the "court square hanging" style of justice. This justice would lessen crime because it would prove to criminals that harsh justice would be administered.
The basis of our justice system has learned to treat criminals with punishing sentences to jail. The problem is, our jails are beyond their intended capacity. This has forced our way of justice to shift from jail sentencing to more ‘help’ type programs. This has paved the road for Anti-crime legislation and other ‘help’ programs. These programs were created for people with a wide variety of problems. However, I am going to concentrate on sex crimes and violent crimes programs and laws.