Women’s behavior as implied consent: Male “reasonableness” in Australian rape law

Abstract

Defendants in rape trials rely on narratives of “implied consent,” situating women’s ordinary behavior as having indicated consent. Such narratives ignore women’s experiences, instead describing a male perpetrator’s subjective interpretation or inference of the woman’s actions. Implied consent narratives should have been eliminated by law reform introducing affirmative consent that redirected attention to steps that the perpetrator took to ensure the other party was consenting. Drawing from an Australian study, this article uses rape trial excerpts from the state of Victoria to argue that implied consent narratives endure in rape trials and form the key factor shaping a reasonable belief defense. Rape law allows men to interpret women’s behavior without restriction, providing evidence of the persisting influence of misogynistic views of women in law and legal practice. This article contributes to feminist jurisprudential and theoretical efforts to generate understandings of the ways rigid gender norms are enacted and performed in rape trials.