Communicative Consent as Law: Problems and Possibilities

Ms Rachael Burgin1
1Monash University, Melbourne, Australia

This paper explores the operation of a communicative or affirmative standard of consent in rape trials heard in the County Court of Victoria, between 2009 and 2016. Legislative reform across Australia has steadily moved towards a communicative consent standard, which requires ongoing and active communication by all parties to a sexual act. Yet, findings from this research suggest that such a legal standard has not been completely nor appropriately legislated because victims continue to face re-victimisation in the context of the criminal rape trial. Despite reform to rape law, there remains a reliance on the victim to demonstrate non-consent to sexual intercourse, such as through active resistance. Further, victims continue to be questioned on cross-examination by the defence about her actions before and during a rape in an attempt to construct a narrative of consent. In light of such evidence, this paper contends that rape law reform to date has been largely symbolic rather than substantive in legally securing women’s sexual autonomy.


Rachael Burgin is a PhD Candidate at Monash University. Her research explores the operation of a communicative or affirmative model of sexual consent in rape trials in Victoria. Her broader research interests include rape law reform, understanding the criminal justice experience of victim-survivors, and social, political and legal responses to sexual violence.



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