It’s All or Nothing: Consent, Reasonable Belief, and the Continuum of Sexual Violence in Judicial Logic

Abstract

This paper discusses controversies over the reasonable belief in consent defence to sexual assault shared by many common law jurisdictions. The implementation of a ‘reasonable’ belief standard has been heralded as a safeguard against rape myth narratives that endorsed men’s unreasonable but ‘honest’ beliefs in women’s consent. This paper argues that judicial constructions of reasonable belief in consent continue to apply notions of reasonableness abstracted from the social context of women’s experience of sexual violence and disconnected from sociological insights which contextualise both the encounter and jury decisions. Using a feminist sociocultural analysis (Gavey, 2005; Kelly, 1988), the successful appeal in the case of R v Lennox (2018 Queensland, Australia), against his conviction by a jury is discussed. The reasoning in the Lennox appeal reveals that overriding judicial constructions of women as incredible in their communication of non-consent, and the prevailing legal dichotomies of consent, and credibility as ‘all or nothing’, undo the progressive potential of the standard of ‘reasonableness’ in consent law and reinforce the phallocentrism of legal discourse.