Getting the balance right between victim and perpetrator

Many men (unfortunately) get away with rape because the offence is under-reported, generally unwitnessed, and notoriously difficult to prove in a court of law. Commonly, the problem lies, not in proving that a sexual encounter took place, but in proving lack of consent. Consequently, following lobbying from women's groups and others, laws were changed to make lack of consent easier to prove.

The concern, however, is that these legislative changes are convicting some persons, who would not widely be considered "rapists", and that the general public is not aware of the breath of circumstances that can now lead to a sexual assault conviction. Those convicted face a maximum penalty (for sexual intercourse without consent) ranging from 12 years to life imprisonment depending on the state/territory.

The changed laws include the (UK) Sexual Offences Act 2003 and, in Australia, various amendments to state/territory Crimes Acts/Criminal Codes. While exact provisions vary across jurisdictions the big change was that in a range of defined circumstances "the courts now start from the presumption that the victim did not consent". This is a radical departure from the normal rule in legal cases: semper necessitas probandi incumbit ei qui agit, "the necessity of proof always lies with the person who lays charges".

Under UK law, for example, there is now a conclusive presumption that no consent existed in two particular circumstances: (1) where the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act (includes so-called "medical rape" cases), and (2) where the defendant intentionally induced the complainant to consent by impersonating someone known personally to the complainant ("impersonation cases").

One unusual British case was R v Devonald [2008] , where the conviction of causing a person to engage in sexual activity without consent was upheld. The male defendant had posed as a young woman on the internet and persuaded the male victim to masturbate in front of a webcam. [The defendant had been outraged that the complainant had jilted his daughter, and sought vindictive revenge by way of embarrassing him.] Their Lordships in the appellate court determined that it had been open to the jury to find deception as to the "purpose" of the act, if not the nature.

In addition to the two circumstances of conclusive presumption that no consent existed, there are (in the UK) evidential presumptions about consent in six additional circumstances (where defendants can defeat the presumption of lack of consent by showing they had reasonable grounds to believe that their sexual partner consented).

The legal changes made in Australia in regard to consent were more draconian. This is because a much broader range of circumstances were nominated, where there was a conclusive presumption of lack of consent. In the (most extreme) cases of Tasmania and the Australian Capital Territory (ACT), for example, there are nine (as opposed to two) circumstances, where consent is conclusively negated. Previously a defendant, who could prove an honest albeit unreasonable belief in consent, would be acquitted of the offence.

Tasmania alone also brought in a rule that "a person does not freely agree to an act if the person does not say or do anything to communicate consent". Valid, communicated consent to sex is therefore now required by law in Tasmania, not mere submission.

Differences in wording are also noteworthy. In the UK consent is conclusively negated (in cases of deceit) only when "the defendant intentionally deceives". By contrast, in some Australian jurisdictions all that is required is for the victim's consent to be induced by "a mistaken belief".

Despite Australia having more severe rape laws, there seems to have been more outcry against rape law "reforms" in the UK.

Barrister Jon Holbrook and journalist Sarah Vine, for example, have drawn attention to the way British rape laws are now invoked in respect of sexual encounters that are foolish or stupid, but which (in their opinion) should not engage the criminal law. They say that rape laws are now being used against some men whose behaviour does not, by a proper yardstick, warrant the tag 'rapist'. Effectively, they claim that men in rape cases can be automatically assumed guilty and that this all seems to be part of a political attempt "to push up rape conviction rates and meet targets".

Vine recommends that, because of current UK rape laws, Romeo would be well advised to get written consent, and also keep a breathalyser and drug sniffer dog by the bed (in case Juliet wakes up and claims her consent was not 'freely and knowingly' given for want of intoxication from drink or drugs).