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Rape Law in Context: Contesting the Scales of Injustice

Rape Law in Context: Contesting the Scales of Injustice

Author: Simon Bronitt; Patricia Easteal
Publisher: The Federation Press
ISBN: 9781760021894
Published In: November 2018
Format: Paperback
Jurisdiction: Australia ? Disclaimer:
Countri(es) stated herein are used as reference only

HKD 665.00

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This important new book is a successor to Balancing the Scales, published 20 years ago. Revisiting and extending beyond the themes in the previous collection, the authors offer some new ways of thinking about the wrongs of rape and the responses of the criminal justice system. A unifying theme of this book, which meld critical and feminist legal analysis, is contestation. Contestation, the authors contend, is part of the DNA of rape law. This book sets out to re-consider and re-construct many of the legal rules, principles and procedures governing rape law, testing core forensic and cultural assumptions about gender, sexuality, identity and truth. Examining the principal reforms of rape law – relating to consent, intimate partner rape, legal responsibility (both individual and institutional), trial and sentencing processes – the authors build to their conclusion that contestation is a battle between realities, perceptions and attitudes. It is of course a forensic battle anchored to a question of ‘(un)reasonableness’, whether it relates to the actions, beliefs or decisions of the accused, the victims, the police, lawyers, judges and jurors.

Over the past two decades, the field of rape law has been subject to much academic debate, policy development and law reform. While there has been some progress, victims’ experience of the law and legal process often constitutes a form of secondary form of trauma. To contextualise the state of the law and to assess the impact of ‘feminist’ reforms, the authors devise a series of hypothetical cases to evaluate the legal reasoning of lawyers and judges at various stages of the trial and sentencing process. These fictional, though conceivable accounts, encourage readers to test their own and the law’s normative ideals of gender justice relating to equality, privacy, fairness and human dignity. Moving beyond the tensions between the ‘law in books’ and ‘law in action’, the authors recognise that fundamental concepts of rape law – consent, responsibility, ‘just’ punishment – demand further contestation. This book provides insights and strategies for contesting law’s ‘truths’ in relation to rape in its many and varied manifestations.

Foreword by Ian Freckelton QC

1. Prologue: The Contest Continues

2. Contesting Consent: A Free and Voluntary Standard?

3. Contesting Partner Intimacy and Abuse of Trust

4. Contesting Fault: Beyond Legal Binaries

5. Contesting Harms: Primary and Secondary Trauma

6. Contesting Fairness: ‘Fair Game’ Versus ‘Fair Go’ In the Trial and Investigation Process

7. Contesting ‘The Other’: Intersectionality and Fault

8. Contesting Punishment: Sentencing

9. Contesting Criminal Responsibility for Rape: Diffusing Institutional and Individual Responsibility

10. Epilogue: Beyond Balancing, Towards Human Dignity