Monday, December 17, 2012
Jessica Kennedy and Patricia L. Easteal (University of Canberra and University of Canberra - Faculty of law) have posted Shades of Grey: Indeterminacy and Sexual Assault Law Reform (13 Flinders Law Journal 49-77, 2011) on SSRN. Here is the abstract:
This paper discusses the theory behind legal indeterminacy, the need for it in Australian law, and how it can affect the implementation of legislative reform. A sample of sexual assault law reform provisions that were enacted to better protect victim witness from retrauma are deconstructed to demonstrate their statutory indeterminacy. We then examine the ways in which the greyness of these laws has facilitated and/or could affect judicial discretion, which from a feminist perspective, is exercised within a context replete with beliefs about ‘real rape’ and the accused’s right to a fair trial.