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Defendants in rape trials rely on narratives of "implied consent," situating women's ordinary behavior as having indicated consent. Such narratives ignore women's experiences, instead describing a male perpetrator's subjective interpretation or inference of the woman's actions. Implied consent narratives should have been eliminated by law reform introducing affirmative consent that redirected attention to steps that the perpetrator took to ensure the other party was consenting. Drawing from an Australian study, this article uses rape trial excerpts from the state of Victoria to argue that implied consent narratives endure in rape trials and form the key factor shaping a reasonable belief defense. Rape law allows men to interpret women's behavior without restriction, providing evidence of the persisting influence of misogynistic views of women in law and legal practice. This article contributes to feminist jurisprudential and theoretical efforts to generate understandings of the ways rigid gender norms are enacted and performed in rape trials. [ABSTRACT FROM AUTHOR]

In order to better understand risk factors associated with drug-facilitated sexual assault (DFSA), this study examined complainant-specific and contextual factors, as well as the toxicological profile of DFSA in Victoria, Australia. Clinical files and toxicological analysis results collected by the Victorian Institute of Forensic Medicine (VIFM) for all cases of alleged DFSA in Victoria that occurred between 1st January 2011 – 31st December 2013 were reviewed. Two hundred and four cases of alleged DFSA were identified; complainants were predominately female (93%), and their median age was 26 years (range = 18–54). Self-reported premorbid depression (21.1%) and drug and alcohol abuse (9.8%) were four and two times higher than 12-month prevalence rates in Australia, respectively. All assailants were male, half were known to the complainant and half of alleged assaults occurred in private residences. Most (93.6%) complainants reported voluntary consumption of psychoactive substances prior to the alleged DFSA. Alcohol was the most commonly self-reported substance consumed (n = 164; 64%) and concomitant use of alcohol, prescription and illicit drugs was also commonly self-reported (24%). There were 14 cases that produced a positive toxicology result where the complainant did not report voluntary consumption, which suggests these drugs may have been used covertly to facilitate sexual assault. The results of this study indicate that Females in their mid-20's who exhibit higher rates of mental health concerns represent a sub-group of the Australian population with increased vulnerability to DFSA, which typically occurs in a familiar setting in the context of voluntary alcohol and other substance use. [ABSTRACT FROM AUTHOR]

Judges' directions to juries in rape cases should perform an educative function by clarifying the law and establishing appropriate standards for sexual relations guided by sexual autonomy, communication and respect. Since the 1990s, rules governing jury directions have been substantially reformed in Victoria. While these reforms were designed to minimise outdated perceptions of rape and ensure consistency and clarity in their delivery, the complex nature of rape law has instead led to a set of convoluted and confusing jury directions. Not only has this placed unreasonable expectations on jurors to understand the meaning of consent and the fault element of this offence, but the high number of appeals and overturned convictions resulting from judicial misdirection indicates that the law is not achieving its primary goals. This article examines the jury directions on consent in Victoria and some of the key problems that have ensued. We argue that the confusion within the law has led to equally confusing jury directions, and this serves to compromise and undermine the purpose and achievements of rape law reform over the past two decades. [ABSTRACT FROM AUTHOR]

Over the past several decades, the role and status of victims of crime has continued to shift. Due largely to the rise of the victims' rights movements, the victim now, at least to some extent, plays a more prominent role in criminal justice proceedings from the initial investigation of the crime, through to the trial, sentencing and even the parole hearing; albeit this position continues to operate within an adversarial framework, which restricts the victim from having a determinative say in the prosecution of their case. Despite many changes to their role and level of recognition, in Victoria, victims continue to be largely alienated from the commonly used, but non-transparent process of plea bargaining — to the extent that when cases are finalised in this manner, victims' needs and interests appear to be, for the most part, overlooked; thus fuelling a perception that plea bargaining and injustice are intrinsically linked. Using a triangulation of qualitative methods, this article offers a unique insight into the actions and perspectives of Victoria's legal community in relation to plea bargaining, and the contemporary limitations of this process for victims. In particular, it examines the impact ofs 9 of the Victims' Charter Act 2006 (Vic), which attempts to combat some of the negative aspects of plea bargaining for victims, by requiring that the prosecution keep them informed of any progress in their case, including explaining any amendments to charges. In analysing these issues, this article intends to draw attention to the implications that are inherent within a non-transparent plea bargaining process, and encourage dialogue pertaining to the use of the Victims' Charter Act 2006 (Vic) in Victoria. [ABSTRACT FROM AUTHOR]

The polarisation between consistency, controls and the unscrutinised discretionary powers held by criminal justice agencies is a complex issue that transcends jurisdictions. In the Australian State of Victoria, this conflict is particularly evident in the prosecutor's decision-making powers in the plea bargaining process, because these powers are not subject to scrutiny and the decisions made under them are not transparent. Furthermore, plea bargaining itself is a non-formalised and unscrutinised method of case resolution. While the use of discretion is an important component of prosecutorial work, it is the potentially individualised and idiosyncratic nature of unscrutinised discretionary decisions that results in plea bargaining and prosecutorial decision-making in Victoria giving rise to perceptions of inappropriateness and misconduct. Drawing upon the voices of Victorian and United Kingdom legal professionals, this article critically analyses the controls placed on United Kingdom prosecutors by the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise 2009 (UK), and considers whether similar guidelines could be implemented in Victoria to redress problems surrounding the idiosyncratic nature of prosecutorial decision-making in plea bargaining. By offering a unique insight into the perspectives of those involved in plea bargaining, this article explores the benefits of implementing a transparent and scrutinised control on prosecutorial discretion in plea bargaining, and considers whether this would in turn offer greater safeguards, consistency and transparency of prosecutorial decision-malting in Victoria. [ABSTRACT FROM AUTHOR]

The article focuses on the sentence indication scheme which is contained in the reform agenda of the Victorian Office of the Attorney General in 2004. The scheme encourages early guilty pleas to reduce court backlogs and legal practitioners' workloads as well as minimize the length of criminal proceedings and the trauma from running a criminal trial. The scheme's review conducted by the Victorian Sentencing Advisory Council (VSAC) in 2007 recommended the maintenance of the scheme's current form which uses two models of sentence indications.

This article discusses the secret nature of plea bargaining in Victoria. The author references the case of underworld figure Carl Williams who pleaded guilty to one count of conspiracy to commit murder and three counts of murder. He observes that the secret nature of plea bargaining generates public confusion surrounding the differences between plea bargaining and sentencing in the U.S. and Victoria. The author comments that the veil of secrecy surrounding Williams' plea bargain makes it difficult for the public to understand the difference between him receiving sentence reductions, in the form of parole eligibility, due to Victorian law as opposed to receiving it as part of his negotiations with the Office of Public Prosecutions.