Fraudulent Sex Criminalisation in Australia: Disparity, Disarray and the Underrated Procurement Offence

2020 ◽  
Vol 43 (2) ◽  
Author(s):  
Jianlin Chen
Keyword(s):  
Sexual Consent ◽  
Sexual Offence ◽  
Respective Treatment ◽  
Legal Outcomes ◽  
Definition Of ◽  
Legislative Processes

This article critically investigates the criminalisation of fraudulent sex across Australia’s eight states and territories. Through situating the statutory definition of sexual consent alongside the respective treatment of the procurement offence (a sexual offence that punishes obtaining sex through any false representation), this article identifies the four distinct approaches of criminalising fraudulent sex and demonstrates the surprising stark divergence in legal outcomes. This article argues that the approaches adopted by half of the surveyed jurisdictions are flawed from the perspective of legislative design, and highlights the deficient legislative processes that failed to pay due regard to the procurement offence. In this regard, this article proposes statutory reform to enhance the coherency and clarity of fraudulent sex criminalisation.

Sexual Consent without Passivity

2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Tom Dougherty
Keyword(s):  
Sexual Activity ◽  
Sexual Consent ◽  
Sexual Offence ◽  
Sexual Encounter ◽  
John Gardner

Abstract In “The Opposite of Rape,” John Gardner defends two central claims. The first claim is that consent is not necessary for morally permissible sex and the second claim is that giving consent pride of place in sexual offence policy has the unwelcome consequence of reinforcing sexist ideology. Gardner’s arguments for both claims rely on what I call the “Passive Consent Thesis” which is the thesis that “if A gives consent to B in a sexual encounter, then A is passive and B is active in the encounter.” Gardner argues that if sex that is good in a key respect, then they engage in joint sexual activity that is free of this asymmetry of agency. Building on work by Karamvir Chadha, I respond that even if someone is passive with respect to the action to which they consent, they can still be active with respect to a different action that they perform themselves. Consequently, I maintain that two people can give each other consent while engaging in joint sexual activity.

scholarly journals The Prejudicial Effects of "Reasonable Steps" in Analysis of Mens Rea and Sexual Consent: Two Solutions

2018 ◽  
pp. 933
Author(s):  
Lucinda Vandervort
Keyword(s):  
Sexual Assault ◽  
Personal Experience ◽  
Common Law ◽  
Criminal Code ◽  
Decision Makers ◽  
Sexual Consent ◽  
Mens Rea ◽  
State Of Mind ◽  
Definition Of ◽  
Is Failure

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about whether a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by section 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded in their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable,” given what the accused knew, the legal definition of consent in section 273.1 is easily overlooked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. The result is failure to enforce the law. The author proposes: (1) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and (2) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent.

scholarly journals On Finding Yourself in a State of Nature

2019 ◽  
Vol 5 (3) ◽  
Author(s):  
Jordan Pascoe
Keyword(s):  
Pregnant Women ◽  
Reproductive Rights ◽  
Legal Framework ◽  
Sexual Consent ◽  
Epistemic Authority ◽  
Legal Definition ◽  
Abortion Rights ◽  
Ideal Approach ◽  
Definition Of ◽  
The Right

I defend the right to an abortion at any stage of pregnancy by drawing on a Kantian account of consent and innate right. I examine how pregnant women are positioned in moral and legal debates about abortion, and develop a Kanitan account of bodily autonomy in order to pregnant women’s epistemic authority over the experience of pregnancy. Second, I show how Kant's distinction between innate and private right offers an excellent legal framework for embodied rights, including abortion and sexual consent, and I draw on the legal definition of sexual consent in order to show how abortion discourse undermines women's innate right. I then explore Kant’s treatment of the infanticidal mother, and draw out the parallels between this case and contemporary abortion rights in order to develop a distinctly Kantian framework of reproductive rights in non-ideal conditions. Finally, I explore the implications of this non-ideal approach for contemporary abortion discourse, arguing that debates about the legality of abortion should more broadly engage the barbaric conditions of reproductive injustice.

Law, Violence, and Sexual Consent

2020 ◽  
pp. 277-310
Author(s):  
Latika Vashist
Keyword(s):  
Grounded Theory ◽  
Criminal Law ◽  
Sexual Consent ◽  
Legal Scholarship ◽  
Legal Violence ◽  
Rape Law ◽  
The Subject ◽  
Definition Of ◽  
Sex Positive ◽  
Feminist Legal Scholarship

This essay approaches the question of law and violence through the category of sexual consent, as it is articulated, interpreted and theorized in rape law in India. While the incorporation of an explicit definition of sexual consent has been seen as a feminist move in the criminal law in India, I argue that consent, being grounded in the liberal models of abstract individualism, is premised on an under-theorized conception of sexuality as well as ‘desire’. It is my claim that if law seeks to perform an ‘educative role’ and feminist legal scholarship and pedagogy is an attempt at an ‘uncoercive re-arrangement of desires’,i then we need to produce more nuanced accounts of the sexual and desiring subjects. The dominant frames of sex-negative and sex-positive feminisms may not offer us any insights into this and may inadvertently become complicit with legal violence in its foundational as well as interpretive moments. In this backdrop, I will argue that we need to push towards a more complex understanding of consent based on a more grounded theory of the subject at the centre of law and feminism which takes into account the complexities, contradictions, complicities, and violence that form human subjectivity, sexuality, and desire. The essay critically examines the definition of consent introduced in 2013 criminal law amendments and argues for a reading of sexual consent within a relational psychoanalytic framework that takes desire seriously.

The specificities of modern consumer society in the European Union

2020 ◽  
Vol 4 ◽  
pp. 81-92
Author(s):  
Mira Malczyńska-Biały
Keyword(s):  
European Union ◽  
Consumer Society ◽  
The European Union ◽  
Special Regard ◽  
Cross Border ◽  
Purchase Process ◽  
Ethical Norms ◽  
Definition Of ◽  
Legislative Processes ◽  
The Eu

The article aims to analyse the specificities of modern consumer society in the European Union and, therefore, it presents the genesis and the essence of consumer society development in Europe. It points to the idea of consumer society in terms of economy, politics, sociology, and philosophy. The specificities of the modern consumer society in the European Union are influenced by legislative processes in regard to the economical safety of consumers including safety of goods in terms of information, education, and redress, with special regard to cross-border transactions. The article presents the definition of consumer ethics and the specifics of certain ethical norms connected with the purchase process, what have evolved together with the development of consumer society in the EU.

scholarly journals "Next Time" Means "No": Sexual Consent and the Structure of Refusals

2020 ◽  
Vol 6 (4) ◽  
Author(s):  
Ginger Tate Clausen
Keyword(s):  
Sexual Violence ◽  
Public Discourse ◽  
Sexual Consent ◽  
Definition Of ◽  
Affirmative Consent

This paper emphasizes a need to recognize sexual refusals both in public discourse and in the context of particular interactions. I draw on sociolinguistic work on the structure of refusals to illuminate a much-discussed case of alleged sexual violence as well as to inform how we ought to think and talk about sexual consent and refusal more generally. I argue on empirical and ideological grounds that we ought to impute the same significance to refusals uttered in sexual contexts as we do to those uttered in nonsexual contexts. Finally, I propose an amendment to the definition of affirmative consent that would put it in line with the conclusions drawn in the rest of the paper.

Breaking boundaries? Sexual consent in the jury room

Legal Studies ◽  
2006 ◽  
Vol 26 (3) ◽  
pp. 303-320 ◽  
Author(s):  
Emily Finch ◽  
Vanessa E Munro
Keyword(s):  
Sexual Consent ◽  
Future Application ◽  
Sexual Offences ◽  
Limited Effect ◽  
Jury Deliberation ◽  
Jury Deliberations ◽  
Legal Outcomes ◽  
Mock Jury ◽  
Rape Trial ◽  
Sexual Offences Act 2003

By introducing legal tests centring upon concepts of freedom, capacity and reasonableness, the Sexual Offences Act 2003 reflects a deliberate legislative attempt both to provide a clearer structure for jury deliberation on sexual consent and to hold defendants to a higher level of accountability in relation to their belief in its existence. While these developments are well intentioned, it is argued that they may ultimately prove to be of limited effect. More specifically, it is suggested that there is an inherent complexity in the concepts of freedom, capacity and reasonableness, at least in the largely undefined form in which they have been introduced, such that the Act may, in practice, simply result in the proliferation of a new set of malleable legal tests and unpredictable legal outcomes.Drawing on a series of mock jury deliberations undertaken by the authors in which participants were asked, having observed a short rape trial reconstruction, to apply the tests set out in the Sexual Offences Act 2003 in order to reach a verdict, this paper examines the ways in which the concepts of freedom, capacity and reasonableness were interpreted. Bearing in mind the inevitable constraints of the mock jury methodology (in particular its verisimilitude to real juries), this paper suggests that there may, nonetheless, be some valuable lessons to be gleaned from these deliberations about the future application of the law in actual rape cases.

“When You’re in a Relationship, You Say No, but Your Partner Insists”: Sexual Dating Violence and Ambiguity Among Girls and Young Women

2019 ◽  
pp. 088626051986714 ◽  
Author(s):  
Mylène Fernet ◽  
Martine Hébert ◽  
Geneviève Brodeur ◽  
Valérie Théorêt
Keyword(s):  
Dating Violence ◽  
Adolescent Girls ◽  
Young Women ◽  
Sexual Coercion ◽  
Intimate Partner ◽  
Sexual Consent ◽  
Semistructured Interview ◽  
Sexual Activities ◽  
The Past ◽  
Definition Of

Sexual dating violence (DV) is highly prevalent and associated with deleterious outcomes. Unfortunately, this form of violence remains poorly understood. Furthermore, the measures used to assess sexual DV may not account for the various manifestations of sexual DV, which limits our understanding of this problem. This study aimed to (a) explore how girls and young women describe their experiences of sexual DV and (b) explore whether the taxonomy on intimate partner sexual violence developed by Bagwell-Gray and colleagues could be applicable to girls and young women’s experiences of sexual DV. A total of 71 adolescent girls and young women who identified themselves as heterosexual were recruited. Sexual DV was assessed using an adapted version of the Sexual Experiences Survey, followed by a semistructured interview. Findings revealed that 29.6% of participants reported sexual DV victimization in the past 12 months. A direct content analysis was performed based on the taxonomy of Bagwell-Gray and colleagues. Four manifestations of sexual DV were illustrated from the youth’s narratives: (a) sexual coercion, (b) sexual assault, (c) sexual abuse, and (d) forced sexual activities. Our results underscore the ambiguity of sexual consent and definition of sexual DV among adolescent girls and young women. This research further supports the necessity to develop and implement prevention programs that specifically target sexual DV in this population.

Introductory paper

1966 ◽  
Vol 24 ◽  
pp. 3-5
Author(s):  
W. W. Morgan
Keyword(s):  
Line Intensity ◽  
Classification Scheme ◽  
Two Dimensional ◽  
Spectral Classification ◽  
Dimensional Array ◽  
Rr Lyrae ◽  
Metallic Line ◽  
Introductory Paper ◽  
Parameter Varying ◽  
Definition Of

1. The definition of “normal” stars in spectral classification changes with time; at the time of the publication of theYerkes Spectral Atlasthe term “normal” was applied to stars whose spectra could be fitted smoothly into a two-dimensional array. Thus, at that time, weak-lined spectra (RR Lyrae and HD 140283) would have been considered peculiar. At the present time we would tend to classify such spectra as “normal”—in a more complicated classification scheme which would have a parameter varying with metallic-line intensity within a specific spectral subdivision.

Sign in / Sign up

Export Citation Format

Share Document