Describe the issue and the history of that issue
Issue: “Rape” also referred to a sexual assault, under New South Wales Crimes Act 1900 is defined as ‘a person who inflicts grievous bodily harm on another person with intent to engage in sexual intercourse with that other person, or with a third person who is present or nearby, is guilty of an offence punishable, on conviction, by imprisonment for 17 years’.
Aggravated sexual assault: In New South Wales Crimes Act 1900, aggravated assault is defined as, ‘any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.
Marital Rape: Marital rape is defined as when the offender and the victim are in a relationship connected through marriage, where one partner forces sexual intercourse on the other. Although, the offender and the victim are connected through marriage, it does not give any of them the right to force a sexual act upon the other.
Although ‘rape’ laws have undergone many reforms in the past recent decades, there are still many loopholes in rape. As NSW Attorney General John Hatzistergos states, “those cases, shocking as they were, have demonstrated to us areas where improvement can be effected, we need to change the laws to make it as supportive as possible.” Through the statement, it shows that with the issue of sexual assault, there are many problems associated with it. However, the governments have tried to eliminate these problems through the introduction of new laws.
History of issue: In Australian common law, the term ‘rape’ was traditionally defined as an act where a man forces a women to have sexual intercourse with him, it required the woman to have physical resistance. In the act, only women could be the victim and only men could be the ones to carry out the act as the rapist. Therefore, the act did not include the chance of homosexual rape. Before the late 20th century, husbands who forced their wives or wives who forced their husbands to have sexual intercourse with them, could not be prosecuted for rape. As before the law they were not considered as individuals, but a single body where both have given the consent of having a sexual relationship between one another, since marriage.
However, in recent decades, the offence of rape under common law has been reformed many times, complying with the changing society. In NSW and the ACT, as a result of the reforms, the common law offence of rape was abolished, and replaced with a number of statutory offences. Instead of rape, crimes of sexual assault were created as a replacement, with the purpose to alter the means of rape to reflect an action based on its violence than its sexual nature. It was due to ‘Susan Brownmiller in her book Against Our Will: Men, Women and Rape (1974)’, that the law took on this turn of perspective to see rape as an act of violence than a sexual act.
In 1981, NSW ratified an extensive reform in the laws governing rape. The new offence of sexual assault was now classified into four degrees, these degrees reflecting the level of violence used by the rapist; first degree being most serious. However, the reform was not a success, as the suggestion of categorising the offence into ‘degrees’ with much emphasis on violence, could carry out a negative effect. As the prosecution could now charge the defendant with two offences: sexual assault and sexual intercourse without consent, extending the length of the trial, causing a more traumatic experience for the victims. Furthermore, with the emphasis of violence on sexual assault, rape without the involvement of violence may be perceived less serious than compared to those that do encounter violence.
Although, rape was replaced with sexual assault, reflecting the offence’s violent nature, it proved...