CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, May 17, 2012

Larcombe on Subjective Belief in Rape Law

Larcombe wendyWendy Larcombe (Melbourne Law School) has posted  Worsnop v The Queen: Subjective Belief in Consent Prevails (Again) in Victoria's Rape Law (Melbourne Univeristy Law Review, Vol. 35, No. 2, 2012) on SSRN. Here is the abstract:

The 2010 decision of the Victorian Court of Appeal in Worsnop v The Queen provides yet another example of rape law reform not achieving its intended effects. The Court held that a jury direction on the mental element of rape, introduced by the Crimes Amendment (Rape) Act 2007 (Vic), had not altered the law in the ways imagined by the Act’s drafters and supporters. Specifically, Worsnop determined that a jury cannot convict for rape if they find there is a reasonable possibility that the accused held an honest belief in consent (however unreasonable or mistaken). On this point, the Court found that both the Bill’s Explanatory Memorandum and the Victorian Criminal Charge Book were incorrect. This note argues that further statutory reform will now be required to ensure that the ‘fault element’ for rape in Victoria is brought into line with the communicative model of sexual relations enshrined in other sections of the Crimes Act 1958 (Vic).]

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