Cups of Tea, Joyriding and Shaking Hands – the Vexed Issue of Consent

Anna Kerr

Abstract


This manuscript is the first of a four-piece conversation between Anna Kerr and Andrew Dyer, on the topic of affirmative consent, published in this issue. Our Journal has been invested in the conversation surrounding a shift toward communicated consent, and the ‘Yes means yes’ movement. As a Board we felt that this reply series would be an important and timely contribution to consent laws in Australia.


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References


A Articles/Books/Reports

Australia’s National Research Organisation for Women’s Safety, ‘Violence against women: Additional Analysis of the Australian Bureau of Statistics Personal Safety Survey’ (Research Report, Horizons, October 2015)

Carmody, Moira, Georgia Ovenden and Amy Hoffman, ‘“The program really gives you skills for dealing with real life situations”: Results from the evaluation of the Sex + Ethics Program with young people from Wellington, New Zealand’ (Research Report, Centre for Educational Research, University of Western Sydney, June 2011)

Cockburn, Helen, ‘The Impact of Introducing an Affirmative Model of Consent and Changes to the Defence of Mistake in Tasmanian Rape Trials’ (PhD Thesis, University of Tasmania, 2012)

Craig, Elaine, ‘Ten Years after Ewanchuk the Art of Seduction is Alive and Well: An Examination of The Mistaken Belief in Consent Defence’ (2009) 13(3) Canadian Criminal Law Review 247

Criminal Justice Sexual Offences Taskforce, Responding to Sexual Assault: The Way Forward (Report, December 2005)

Department of Economic and Social Affairs Division for the Advancement of Women, Handbook for Legislation on Violence Against Women, UN Doc ST/ESA/329 (July 2009) 26

Equitable Briefing Working Group, Review of the Application in New South Wales of the Equitable Briefing Policy of the Law Council of Australia (Report August 2015)

Methven, Elyse and Ian Dobinson, Submission No PCO77 to NSW Law Reform Commission, Review of Consent and Knowledge of Consent in relation to Sexual Assault Offences (29 June 2018)

Monaghan, James and Gail Mason, ‘Reasonable reform: Understanding the knowledge of consent provision in section 61HA of the Crimes Act 1900 (NSW)’ (2016) 40(5) Criminal Law Journal 246

NSW Bar Association, Submission No PCO47 to New South Wales Law Reform Commission, Review of Consent and Knowledge of Consent in relation to Sexual Assault Offences (29 June 2018)

Quilter, Julia, ‘Re-framing the Rape Trial: Insights from Critical Theory About the Limitations of Legislative Reform’ (2011) 35(1) Australian Feminist Law Journal 23

Spender, Lynne, ‘Legal studies: Justice Bollen, community attitudes, the power of judges’ (1993) 18(2) Alternate Law Journal 90

The Line, Sex, Love and Gender Roles: Views on ‘what’s ok’ and ‘What’s not’ in sex, dating and relationships (Research Report, May 2017)

Townsley, Lesley and Ian Dobinson, ‘Sexual assault reform in New South Wales: Issues of consent and objective fault’ (2008) 32(3) Criminal Law Journal 152

B Cases

R v Aiken [2005] NSWCCA 328

R v David Norman Johns (Supreme Court of South Australia, Bollen J, 26 August 1992)

R v Ewanchuk [1999] 1 SCR 330

R v Fuge (2001) 123 A Crim R 310

R v Lazarus [2017] NSWCCA 279

C Legislation

Crimes Act 1900 (NSW)

Crimes Act 1958 (Vic)

Criminal Code Act 1924 (Tas)

Criminal Code, RSC 1985

D Other

Australian Bureau of Statistics, Personal Safety Survey Australia: Reissue (Catalogue No 4906.0, 21 August 2006)

Australia’s National Research Organisation for Women’s Safety, Submission No PCO105 to NSW Law Reform Commission, Review of Consent and Knowledge of Consent in relation to Sexual Assault Offences (13 July 2018)

Blue Seat Studios, ‘Tea Consent’ (YouTube, 13 May 2015)

Brown, Mark, ‘Germaine Greer Calls for Punishment for Rape to be Reduced’, The Guardian (online, 31 May 2018)

Calderwood, Kathleen, ‘Luke Lazarus case highlights the need to change our conversation about sexual consent’ ABC News (online, 8 June 2017)

Cooper, Luke, ‘One In Five Young People Think It's OK For A Man To Pressure A Woman Into Sex’ Huffington Post (online at 23 February 2017)

Doraisamy, Jerome, ‘Turning targets into quotas may be necessary for equality at the bar’, Lawyers Weekly (online, 3 October 2018)

Goldsworthy, Terry , ‘Yes means yes: moving to a different model of consent for sexual interactions’ The Conversation (online, 30 January 2018)

‘Greer, Germaine, ‘Rape is rarely a violent crime’ and four other controversial quotes’, The Week (online, 31 May 2018)

Hancock, Justin and John Meg Barker ‘Three Handshakes – An activity for learning how consent feels’ Bishtraining (online, 24 March 2015)

Lynn, Cusper, ‘Tea, it’s a bad idea’ (YouTube, 24 November 2015)

Ormsby, Grace, ‘NSW bar stats give insight into female barristers’, Lawyers Weekly (online, 10 October 2018)

Pazzanese, Christina and Walsh, Colleen, ‘The women’s revolt: Why, now and where to’ The Harvard Gazette (online, 21 December 2017)

Rape & Domestic Violence Services Australia, Submission No PCO88 to NSW Law Reform Commission, Review of Consent and Knowledge of Consent in relation to Sexual Assault Offences (29 June 2018)

Rush Peter, Alison Young, Submission No PC059 to NSW Law Reform Commission, Review of Consent and Knowledge of Consent in relation to Sexual Assault Offences (29 June 2018)

Sex Workers Outreach Program, Submission No PCO103 to NSW Law Reform Commission, Review of Consent and Knowledge of Consent in relation to Sexual Assault Offences (11 July 2018)

Taylor, Natalia ‘Juror attitudes and biases in sexual assault cases’ (Research Paper No 344, Trends & Issues in Crime and Criminal Justice, Australian Institute of Criminology, August 2007)

The Law Society of NSW, Submission No PCO73 to NSW Law Reform Commission, Review of Consent and Knowledge of Consent in relation to Sexual Assault Offences (27

June 2018)