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Rape Law in Context

Rape Law in Context

Contesting the Scales of Injustice

By Simon Bronitt and Patricia Easteal


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 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. 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 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 accounts encourage readers to test their own and the law’s normative ideals of gender justice relating to equality, privacy, fairness and human dignity. The authors conclude 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
Table of Cases
Table of Statutes

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: Reframing Institutional and Individual Complicity

10. Epilogue: Beyond Balancing, Towards Human Dignity



Free sample Chapter 9 Contesting Criminal Responsibility for Rape: Reframing Institutional and Individual Complicity


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Published 3 October 2018
Publisher The Federation Press
ISBN 9781760021894
Australian RRP $69.95
International Price $64.00
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Law - Evidence
Law - Criminal Law & Procedure
Law - Women & the Law
Women's Studies

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