Please use this identifier to cite or link to this item: https://anrows.intersearch.com.au/anrowsjspui/handle/1/14977
Record ID: c251114f-2e5f-4e23-b9f1-2d1fb163576c
DOI: https://doi.org/10.1080/13200968.2021.1930434
Type: Journal Article
Title: Getting consent ‘right’: Sexual assault law reform in New South Wales
Authors: Quilter, Julia
ANRA Topic: Policing and legal responses
Sexual violence and sexual harassment
ANRA Population: General population
Year: 2021
Publisher: Routledge
Abstract:  For the purposes of rape/sexual assault, the preferred approach for pursuing modernisation in Australia has been to legislate a positive definition of consent as ‘free and voluntary agreement’. The absence of consent in this form has become the primary touchstone for the crime. And yet, despite multiple waves of progressive legislative reform, too few victims of sexual violence find justice in the criminal courts. This article questions whether prevailing statutory models of consent definition may be more problem than solution. Drawing on the work of Pateman and Gatens in particular, I argue that while the repetition of the words ‘free and voluntary agreement’ make it a familiar and reassuring formula, its meaning is neither self-evident nor self-executing. It is possible that the definition opens a ‘gap’ between what is intended by the phrase and how it is filled in practice by the ‘common knowledges’ (Mariana Valverde, Law's Dream of a Common Knowledge (Princeton University Press, 2003)) of rape myths. Myth as ‘misunderstanding’ may be capable of legislative correction, but legislative correction of myth, understood as an excess of signification (Roland Barthes, Mythologies trans A Lavers (Jonathan Cape, 1972)), is elusive. The article also suggests that the practice of legislative correction may be flawed to the extent that it relies on naming and marking the limit of what consent is not – via categories of (exceptional) circumstance and vulnerability.
URI: https://anrows.intersearch.com.au/anrowsjspui/handle/1/14977
Appears in Collections:ANROWS Notepad 2021
Journal Articles

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