Australian state to introduce "guilty until proven innocent" definition of consent in rape cases: "an offender must prove that if they believed a victim was consenting, that belief was not unreasonable". So if you are accused, you are already an offender!

bertreapot · 2015-06-29T11:47:27+00:00

There were 2067 rapes recorded by police in 2012-13, for example, but only 47 people sentenced for rape the following year.

This can be seen one of two ways: either there is an epidemic of rapes that aren't leading to convictions, or there is an epidemic of false accusations. Victoria has decided the PC thing to do is go with the former interpretation.

A government review found Victoria's sexual offence laws were complex, inconsistent and unclear, further traumatising victims and failing to hold offenders to account.

So, how do we solve this vastly unfathomable injustice? Presume guilt, of course!

bertreapot · 2015-06-29T11:52:06+00:00

Under the changes to sexual offence laws:

An alleged offender must have a "reasonable" belief that a victim had consented. The new definition means the defendant must detail the steps they have taken to find out whether the victim has consented.

I wonder if shifting the burden will hold up in court? I know Washington State had a similar law, but it was struck down as violating Due Process, as you can't shift an element of the crime to be disproved by the defendant. Granted Australia isn't the U.S., but we share the same legal heritage.

hugolp · 2015-06-29T12:54:28+00:00

The solution is easy, accuse every person you sleep with of rape. Whoever gets to the police first wins!

xNOM · 2015-06-29T15:44:28+00:00

A government review found Victoria's sexual offence laws were complex, inconsistent and unclear, further traumatising victims and failing to hold offenders to account.

The definition of consent has been reworked, after the review found it was "extremely difficult, if not impossible" for a judge to explain rape to a jury.

LOL, so they made it even more complicated.

SleepingSheeple · 2015-06-29T13:48:54+00:00

To be honest, thatbis really the way it already is in many western cultures. Australia just wrote it down.

ragebeard03 · 2015-06-29T21:12:44+00:00

...an offender must prove...

I was going to point out that they should say "alleged offender," but given this new statue we might as well just stop with all that due process crap.

TerrenceChill · 2015-06-29T17:54:11+00:00

Australia seems more and more like a giant social experiment. How many moronic laws can they get past before the population has enough.

cowardly_lying · 2015-06-29T16:08:27+00:00

There is no "sentence" when a person agrees to a plea bargain? This could be a SHIT statistic.

Most criminal cases in the US do not end in a jury verdict. I know nothing about Australia.

Quintrell · 2015-06-29T17:33:22+00:00

This is fucking terrifying. How is it that legislators – those charged with writing our laws – can so blithely dispense with the most fundamental precept of Anglican jurisprudence: that the accused is innocent until proven guilty?

It's bad enough that judges and juries have a history a presuming guilt based upon a person's race and gender. Now a presumption of guilt is about to codified into law.

I wonder if policymakers even considered how this new standard might play out in practice. Sexual assault unfortunately is so often a he-said-she-said crime. Any defendant with an ounce of intellect will simply claim that the accuser did in fact provide affirmative consent.

Further, the proposed standard will invariably beget a bevy of cross-complaints wherein the accused will claim (and correctly so) that the accuser, too, failed to take steps to attain affirmative consent before proceeding with intercourse – not that I expect prosecutors to exercise their discretion in a gender neutral manner.

Welcome to sexual assault law in the 21st century: where two people which, by societal standards, had consensual sex can be convicted of simultaneously raping each other.

I will give credit where credit is due: good on them for finally seeking to reform pornography laws that put exchanges of sexual explicit images between teenage couples on equal parity with those of child abusers.

Still, this reform is but a consolation in the face of the erosion of the most basic of procedural protections.

Claude_Reborn · 2015-06-30T10:42:14+00:00

And so there are no good voting options in my state. Vote labor.. get this shit...vote LNP you get complete mis management.

Next election im voting pirate party

MasterGoshinki · 2015-06-29T16:12:59+00:00

Jesus!

With this law myself and two of my friends would have been jailed. Just ridiculous. For those that may get pissed at my response; the stories for all 3 are corroborated in my comments; feel free to dig

chafedinksmut · 2015-06-29T19:12:55+00:00

It seems like there are only two choices that I can make as a male in the world these days: 1-Live in a femnazi hellhole where I am guilty upon accusation. 2-Live in a genuine rape culture that's a third world shit hole.

Am I wrong? Please prove me wrong...

colonelmustard94 · 2015-06-29T13:42:15+00:00

Does anyone know of any petitions or things like that against this law? And of a good way to protect yourself from false accusations?

-er · 2015-06-29T15:19:32+00:00

I am not sure about Australia, but in the U.S. the defendant has the right to remain silence and not testify on his own behalf and juries can not infer guilt based on a defendant's choice not to testify. This is granted in the 5th Amendment. If such a law passed in the U.S. it was seem to violate this right, since it would essentially compel a defendant to testify.

andejoh · 2015-06-29T15:37:18+00:00

I wonder how they would classify an erection or if that starts to become a defense her nipples were hard, she started to lubricate, etc.

Blutarg · 2015-06-29T17:29:23+00:00

How do you prove you had consent?

william44isme · 2015-06-29T19:00:18+00:00

This violates section 1 of article 11 of the UN's Universal Declaration of Human Rights.

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

link

I wonder how this would be applied if a guy accused a woman? The law doesn't mention any genders in itself.

JayBopara · 2015-06-30T08:18:55+00:00

Incredible, that state of victoria believes one must prove innocence, rather than proving guilt. The Magna Carta recently celebrated 800 years - one of the key principles was innocent until proven guilty. Welcome back to the old witchhunts. As per usual - only men have to prove their innocence.

TheJollySatan · 2015-06-30T13:50:21+00:00

Fuck Victoria, fuck Melbourne. I'm never moving there.

upsidedownbackwards · 2015-06-29T18:32:52+00:00

Every pack of condoms comes with a set of postit-size consent forms and a spot for a fingerprint on the back of each page. Tiny pen attached to the box!

javi404 · 2015-06-29T18:15:31+00:00

Well, I guess I will never set foot in that country now. What a shame. I find Australian women sexy, maybe its the accent, or the heat down there or something. Oh well.

Jack92783 · 2015-07-01T05:33:17+00:00

How do they not realize that this is going to cause a whole new wave of "victim-blaming". It's basically requiring the alleged offender to blame the victim in his defense.

"How do you know she was consenting" "Well, she immediately showed interest in me at the bar, and when I suggested that we find a quieter place, she immediately agreed. At my apartment, she stripped down to her underwear and started rubbing against me. Her nipples were hard, and she kept kissing me. Her genitals became wet, and she didn't protest when I pulled down her underwear, nor when I pulled down mine, nor, for that matter, when I began to perform oral sex on her"

Not to mention that the "It's better that n guilty people go free, than one innocent person goes to prison" maxim is part of Australian law, as well: http://www2.law.ucla.edu/volokh/guilty.htm

Daemonicus · 2015-06-29T22:47:06+00:00

A new course of conduct charge can be used when it is alleged that an offender has abused a victim on multiple occasions over an extended period, but specifics about each offence cannot be recalled

This actually isn't that bad. A case shouldn't be dismissed simply because someone didn't know a specific date. It really depends on how it's used. If specifics are missing from every case, then it's bad, but if someone can't remember specifics about 1-2 cases, I don't see why the entire thing should be thrown out.

Exceptions to child pornography offences to prevent sexting teens being added to the sex offenders register

This is a good thing.

Removal of a time limitation that prevented prosecution for some child sex offences committed before 1991

Good, and bad, depending on the circumstances.

An alleged offender must have a "reasonable" belief that a victim had consented. The new definition means the defendant must detail the steps they have taken to find out whether the victim has consented.

I can see what they're trying to do here, and it does make sense to a degree. The problem is going to be how it's used in practice.

If you were to describe the events that lead up to having sex... Where she was undressing herself, undressing you, provoking you to go further, etc... It could actually make it harder for some women to revoke consent.

The wording is very specific... You need to prove that your assumption was reasonable. As long as the jury isn't filled with crazy feminists (which your lawyer would easily handle in jury selection), then you would be fine.

Shaft-of-Patriarchy · 2015-06-29T16:30:04+00:00

In fairness this topic title is rather misleading, this does not place the burden of proof on the defendant, it merely adds a number of steps that they must follow in order to show that their belief is reasonable.

Expecting a defendant to be able to outline why he believes the claimant is consenting isn't in the least bit onerous if he isn't a predatory sex pest. If hes either asked her, or allowed her to undress him/be an active participant as opposed to being the actor and her the acted upon, if hes not asked out right but asked questions which infer consent, these are all possible reasons for a belief being reasonable. Basically all the things that non-rapists are going to be doing by default.

Once they have detailed this, the burden of proof is still on the prosecution to demonstrate that the defendant did not do these things, and if they cannot, that the claimants responses/reactions were either not congruent with the defense, or if they cannot, that they were congruent with the defense but the defense fails the test of reasonableness.

Its all pretty straightforward stuff as i read it, and fundamentally follows the current law in the UK where i am currently doing a law degree.

EDIT Downvotes for actually understanding the law? Stay classy gents

BarneyBent · 2015-06-29T15:27:59+00:00

"Not unreasonable" isn't exactly a high standard of proof. It seems like this is just an attempt to prevent people saying "I honestly thought she consented, Your Honour" when that's clearly not the case.

soalone34 · 2015-06-29T16:16:29+00:00

I don't get why everyone was so against the "yes means yes" law. If there is such a fear of false accusations, why not just accept having to sign a contract for sex even if it's ridiculous? At least than you won't be going to jail.

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