It’s All or Nothing: Consent,Reasonable Belief,and the Continuum of Sexual Violence in Judicial Logic

Introduction

Consent, or the lack thereof, is central to the definition of sexual assault and therefore sits at the heart of many sexual assault trials (Mason and Monaghan, 2019). However, the conceptual and practical definition of consent in both social and legal discourse continues to frustrate feminist endeavours to rewrite the legal rape script. Even progressive definitions that require that consent must be voluntarily and freely given can be undermined in many Australian jurisdictions by a defence of an ‘honest and reasonable belief’ in consent (Larcombe et al., 2016). A reasonable belief in consent refers to the legal defence to sexual assault, which questions whether a perpetrator could have believed the victim was consenting, regardless of whether the victims actually consented (see Burgin and Flynn, 2019). Furthermore, even in cases of conviction, appeals based on this defence are high, and appeals for convictions on sexual assault matters have one of the highest rates of success (see Donnelly et al., 2011). Queensland and New South Wales are the only Australian jurisdictions where the defence of an honest and reasonable belief in consent, or mistake of fact remains in place, although both are now under review after a series of high-profile cases and an ongoing concern over the way that reasonable belief continues to be framed by rape myths and socio-cultural sex scripts (NSW LRC, 2019; Qld LRC, 2019). This paper adds to the body of work that questions the transformative potential of a ‘reasonable belief’ standard.

This article aims to reflect on judicial thinking on crucial aspects of the ‘honest and reasonable belief’ in consent defence through an analysis of the Queensland Court of Appeal (QCA) judgment of R v Lennox. Court of Criminal Appeal judgments are significant because they provide insight into how the higher courts interpret and apply models of consent and reasonable belief (Mason and Monoghan, 2019: 2). An individual case study approach to examining the law is couched in a rich history of feminist legal critique (Howe and Alaatinoglu, 2018; Smart, 1989/2012). Following the work of Smart, this analysis uses a Foucauldian inspired analysis method of reading law as discourse. As such it is an important mode of engagement with hegemonic constructions of gendered relationships. Individual legal cases then are as a discursive site on which to expose and contest the gendered constructions of women’s experiences. Furthermore, post-reform cases provide opportunities not only for assessing the effectiveness of the reforms in consent law but also for continuing the endlessly valuable discursive work that Smart (1989) advocated and practiced in other fields of law. That is, they are ideal sites for continuing the work of interrogating the laws method by articulating alternative accounts and interpretations, challenging law’s power to disqualify women’s experiences of violence by privileging men’s feelings and experiences. Conceived of in this way, the cases are transformed into what Adrian Howe (2018) has described as ‘a critical, pedagogical means of mobilising consciousness’ about excuses for violence against women.

This article begins by reviewing the standards of honest and reasonable belief. Following this, the facts of the Lennox case are explained, before examining the ‘all or nothing’ reasoning of the Justices of Appeal in setting aside his original conviction. Using a feminist sociocultural framework (Gavey, 2005; Kelly, 1988), it is argued that the jury’s split judgment is easily reconciled within the dominant socio-cultural discourses of hetero(sex). Within such discourses, the grey area between sexual violence, sexual coercion, and normative heterosexuality is often unclear, with rape often positioned as simply the end of a continuum of normal heterosexual practices of sexual coercion. Such a framework reveals the persistent tensions between social, feminist, and judicial constructions of a ‘reasonable’ belief in consent. The analysis that follows is not intended to be a technical analysis of the doctrine of sexual assault law. Instead, it is a feminist critique of how judicial discourse frames and constructs concepts and values related to reasonableness and credibility.

A ‘Reasonable’ Belief in Consent

Sexual assault or rape is defined as sexual intercourse without consent. As such, it is open to the accused to argue that even if the complainant did not consent, he mistakenly believed that she did. That is, if the accused honestly believed that the victim consented to sexual intercourse, he lacks the mens rea necessary for the crime (Hubin and Haely, 1999). The ongoing controversy in this area concerns whether it is enough that the defendant’s mistake is honest (a subjective standard) or that the belief must also be reasonable (an objective standard) (Moran, 2003). The subjective belief in consent has been widely criticised, and as such, it is the absence of a more objective ‘reasonable’ belief that is now the fault standard for sexual assault offences in several Australian jurisdictions (see Burgin and Flynn, 2019). Most recently NSW (2007) and Victoria (2014) enacted such reforms, which brought these jurisdictions in line with Queensland, Tasmanian, and Western Australian criminal law, which had long required that a defence of mistake of fact must be both honest and reasonable in the circumstances (see Croft, 2007; Larcombe et al., 2016).

The promise of a ‘reasonable’ fault standard in these reforms has been its perceived potential to subvert the cultural and legal endorsement of ‘unreasonable’ honest beliefs in consent. Feminist writing on sexual assault has long critiqued this subjectified standard and the politics of belief and consent. A process that critics have suggested is essentially ‘gendered to the ground’ (MacKinnon, 1989: 183). A subjective standard is predisposed to making men’s beliefs about women’s consent determinative about whether a woman was raped (see Kelly, 1988; MacKinnon, 1989). Such beliefs are often premised on narratives of victim-blaming and implied consent (see Burgin and Flynn, 2019), and their legal endorsement, therefore, undermines the security and autonomy of women and exacerbates gender inequality (Moran, 2003).

However, academic commentators have doubted whether a change to a ‘reasonable’ standard is enough to either increase rates of conviction or improve the experience of women. Case analysis has demonstrated that a reasonable belief is still inferred from victim-blaming attitudes (see Burgin and Flynn, 2019; Larcombe et al., 2016; Mason and Monaghan, 2019). And defence lawyers maintain that it is ‘not difficult for a defendant to establish that his belief in consent was reasonable’ (Carline and Gunby, 2011: 248) based on assumptions about victim conduct as implying consent. The practical experience in several jurisdictions confirms this concern. For example, in England and Wales, there has been no significant increase in rape conviction rates since the introduction of a reasonable belief standard 2004 (see McGlynn, 2010; Munro and Kelly, 2009). New Zealand also endorsed a strong objective ‘reasonable person’ standard. Yet conviction rates in New Zealand are comparable to those in other common law jurisdictions (Daly, 2011), and juries have acquitted defendants in circumstances where a belief in consent was seemingly unreasonable (MacDonald and Souness, 2011). In Victoria, Larcombe (2011) has found that courts continue to endorse subjective and unreasonable beliefs in consent, despite reforms in 2007 requiring an objective standard. In Queensland, Crowe (2011) also found that several Queensland cases successfully invoked the defence despite clearly showing disrespect for the sexual autonomy of the complainants, and often using violence or occurring in the context of a marked imbalance in power such as incest. Furthermore, even when a conviction is secured, a particular concern to emerge recently has been the role of the Court of Appeal in overturning convictions based on honest and reasonable belief related defences (see, for example, Lee and Crowe, 2019: Mason and Monaghan, 2019).

The most compelling explanation for the limited impact of the reasonable belief fault standard is the continued belief of judges and jurors in the same rape scripts that underpinned the subjective or ‘honest’ belief standard. Indeed, given the historical valorisation of the ‘reasonable man’, the recourse to standards of reasonableness for some represents the enshrinement of the male point of view and male power to define gender relations (see Moran, 2003). The continued judicial endorsement of views on female sexuality, seduction, and sexual conquest demonstrates this overlap. Such views invariably validate an accused’s subjective reasonable belief in consent, over the complainant’s objective denouncement of consent (see Victorian Law Reform Commission, 2004). Dywer (2019), for example, noted several cases in which complainants verbally said no, physically resisted, cried, and sobbed, yet the judiciary accepted that the accused had an honest and reasonable belief in consent based on the subjective assumptions of the accused.

These findings show that the implementation of rape legislation is significantly affected by the personal attitudes and assumptions of legal actors, including judges, prosecutors, defence barristers, and juries (Australian Law Reform Commission, 2010: 1125). These concerns suggest deeper trouble with the concept of reasonableness, what exactly makes a belief in consent reasonable, and to whom. Some academic commentary regards the adoption of a reasonable belief fault standard for rape as setting a more appropriate standard than mere honest belief in consent (see Larcombe et al., 2016). However, as the following case analysis reiterates, there is no assurance that the legal construction of reasonable belief in consent will reflect feminist understandings of reasonableness.

The Case of R v Lennox

The case of R v Lennox (2018) concerns an apparent ‘miscarriage of justice’ caused by a jury’s inconsistent verdict in acquitting the accused of two counts of unlawful and indecent assault but finding him guilty of the sexual assault that followed. On appeal, it was found that the jury’s determination of guilt for the sexual assault could not be logically reconciled with the jury’s acquittal of the indecent assaults before and after the rape. In essence, the majority judgment contended that the jury could not have reasonably accepted the presence of a reasonable belief defence for the lessor assaults, if on the same evidence they rejected the defence for the sexual intercourse. As a result, the Court of Appeal acquitted the accused of the sexual assault.

The case of R v Lennox (2018) involved an acquaintance rape between a young Chinese woman (the complainant, 27), and an older Australian man (the appellant/Lennox, 57). Acquaintance rape cases are notoriously difficult to prove, primarily because of the complexity of the issue of sexual consent in such situations (Russo, 2000). In such cases, judges and juries may be tempted to draw on troubling social, cultural, and situational understandings of heterosexual pursuit in interpreting what kinds of actions are and are not indicative of consent and reasonableness (Moran, 2003). Furthermore, juries are reluctant to convict in acquaintance rape cases, as consent is often inferred to the extent adult women know the accused, regardless of the context (Moran, 2003: 223). The radical work of Mackinnon (1983: 648) exemplifies this presumption, arguing that any indication of a relationship, ‘from nodding acquaintance to living together, still contraindicate[s] rape’.

The Lennox trial also involved another notorious source of trouble for prosecution cases, which was the layering of one criminal episode with multiple charges. In this case, the prosecution sought five counts related to the non-consensual sexual activity that took place in the appellant’s car. These included two counts of unwanted kissing and touching (count one and two unlawful and indecent assault), one count of digital penetration (count three), one count of penile penetration (count four), and one count of forced masturbation (count five). The jury returned one guilty verdict for the penile penetration, three not guilty verdicts for the unwanted kissing, touching, and forced masturbation, and failed to agree on the count of digital penetration.

These events happened on what would have been the accused’s and the complainants’ second date. They first met while the complainant had been waiting at a bus stop, Lennox stopping to talk to her and offer her a ride. On their first date, they had held hands, hugged, and kissed. Afterwards, however, the complainant was resistant to meeting again. On her account, she did not want to be pressured into having sex. She told Lennox this, and also that she wanted a serious relationship, not a casual encounter. Lennox reassured her that they did not need to have sex, and so she agreed to the second date. He picked her up and drove them to a suburban park where the episode attracting the conviction occurred in Lennox’s car.

At first, they sat talking in the car. Then the appellant kissed the complainant. On her account, she told him she did not want to kiss. ¹ He then touched her breast, lifted her shirt, and sucked her nipple. In the complainants’ account, she repeatedly said, ‘I don’t want that’. The complainant gave the following testimony in evidence-in-chief:

When he was doing that, were you saying anything? – I say I – I don’t want to do that. I kept saying I don’t want, and I keep holding his body or his wrist to try to stop him to touch me and to continue.

And what did he say, if anything, to you, when you were saying, “I don’t want to do that”? – He say it is okay, he is just touching me. It is okay. And I say I don’t want, but he keep do it. ²

There was no dispute that the acts constituting counts one to four occurred. The real issues at trial concerning those counts was whether the prosecution had proved beyond reasonable doubt that the complainant had not consented to the charged acts and, if it had not, whether the prosecution had excluded beyond reasonable doubt the defence of honest and reasonable but mistaken belief as to consent on the part of the appellant under s 24 of the Criminal Code (Qld).

Lennox was convicted by a jury of rape on count four and sentenced to four and a half years’ imprisonment, suspended after 14 months, and acquitted on the other charges. He appealed to the Supreme Court of Queensland Court of Appeal (QCA) on the grounds that the verdict of guilty of rape on count four was inconsistent with the other verdicts of acquittal. That is that the jury’s verdicts are illogical and irrational.

The Court of Appeal Judgment: All or Nothing

The Lennox appeal judgment considered whether the Court should intervene to set aside the conviction of rape and order an acquittal in lieu on the ground of inconsistent verdicts. In the Supreme Court of Queensland – Court of Appeal, Philippides JA explained that this ground required the appellate court to consider whether the inconsistency complained of requires the conviction to be set aside to prevent a possible injustice (R v JAMES RONALD LENNOX [2018] QCA 311 at 105). Citing the authoritative principles set out by Gaudron, Gummow and Kirby JJ in MacKenzie v R (1996) 190 CLR 348 (at 366) her honour explained that where the inconsistency arises in jury verdicts upon differing counts in the same indictment, ‘the test is one of logic and reasonableness’. The often-cited expression of the relevant test comes from Devlin J in R v Stone (Unreported 1954):

He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.

There were two opposing lines of argument presenting by the three preceding justices of appeal (JA). In the minority, Philippides JA argued that the inconsistent verdicts by the jury could be reconciled. In her opinion, the verdicts do not reflect confusion by the jury but careful consideration of the issue of consent and honest and reasonable but mistaken belief. She further emphasised that the Court strains to avoid a conclusion of inconsistent verdicts, recognising the primacy given to the role of the jury. In this light, overturning the verdict of guilty for the rape could not be justified. In her view, the jury’s verdicts indicate that the jury approached their task by considering the counts separately as they were directed to do. In so doing, the jury distinguished between guilt on the lesser counts indecent assault and the much more serious count rape. In outlining the interpretive possibilities of the jury’s decisions, Philippides JA suggested that the jury may not have been satisfied that the s 24 defence of an ‘honest and reasonable but mistaken belief’ as to consent was excluded in the first two counts. In making this argument, Phillippides JA referred to the cross-examination evidence, in which complainant accepted that she might have responded to the appellant kissing her by kissing him back at some point. She also accepted that it was at that point that the accused might have kissed the complainant’s breasts and nipples. Regarding those concessions, the jury may have concluded that they could not exclude the defence of honest and reasonable but mistaken belief as to the complainant’s consent to the acts constituting counts one and two.

However, the jury’s verdict on count four meant that they were left with no relevant doubt both that the complainant did not consent to penile penetration and that Lennox could not have held an honest and reasonable but mistaken belief that she consented to sex. This logic is also supported by the cross-examination evidence, in which the complainant made no concession that she was consenting or in any way participating in a way that would signal consent (Philippides JA at 64). Indeed, her evidence of resistance and crying throughout the penetration signified her lack of consent. In this light, she argued, the verdicts are not inconsistent as a matter of logic and reasonableness. In other words, the jury holding a view that the Lennox may have had an honest and reasonable, though mistaken belief that she consented to be kissed and groped, did not mean that they were obligated to apply that same logic to the act of penile penetration (Philippides JA at 53–57).

However, the majority judgment by McMurdo JA and Henry J was of the opposite view. In their mind, if the complainant had continued to protest the entire time verbally, the jury could not have acquitted on counts one, two and five without being in doubt about her ‘credibility’ (per McMurdo at 76), and there was nothing to dispel that doubt in the evidence about count four. According to McMurdo JA (at 110), the complainant had claimed to unequivocally and expressly deny consent to the appellant kissing her, touching her breast, digitally penetrating her, and penetrating her with his penis. He argued, therefore, that if the jury accepted that she had expressly denied consent, then it left no room for the jury to harbour a reasonable doubt that the appellant honestly and reasonably believed she was consenting to any of the acts. So in this logic, the jury could not have believed that Lennox thought the complainant was consenting to kissing and touching (and thus acquit him of count one and two) while also believing that he could not have held that same belief that she consented to sex (and thus finding him guilty of rape on count four).

Henry J further attributed this inconsistency to the assumed credibility of the complainant in the jurors’ minds. He explained:

The only way to reconcile her evidence that she said no to her breasts being touched and sucked, with the jury harbouring a reasonable doubt as to whether the appellant honestly and reasonably believed she was consenting, is that the jury did not accept she had been as unambiguous in saying no as she testified. Such reservations about the reliability of the complainant’s evidence of her open communication of non-consent are in stark contrast to the absence of such reservation implicit in the jury’s decision to convict on count 4. It is a concerning inconsistency, particularly given the temporal and physical proximity of the events (at 111).

He further suggested that the acquittal of the appellant on count five materially exacerbated these concerns. This related to the accusation Lennox had forced the complainant to masturbate him, which he denied happened at all. Importantly, the s 24 defence of mistake of fact did not go to the jury in respect of this charge. The issues were whether it happened at all and, if so, whether it happened without the consent. In describing the interpretive possibilities of the jury’s verdict, he argued that it could not have been open to the jury to find Lennox not guilty of this charge if they accepted his guilt for the rape shortly before. To give a few examples, Henry J (at 114–115) considered: that the jury could not have doubted her claim that the act did happen if they did not also doubt her credibility that the rape happened; and if they did doubt that it happened, it must have been because they entertained a ‘reasonable doubt that she was telling the truth,’ and therefore they must have also harboured doubts about her truthfulness concerning her absence of consent to sex. On the other hand, if they accepted that the masturbation act did happen, then their failure to convict must have meant that they harboured a reasonable doubt about the absence of consent (at 116). Henry J, therefore, surmised that the jury could not have correctly arrived at a guilty verdict for the rape, because to do so would mean that they had correctly excluded the defence of honest and reasonable mistake of fact, yet they could not have excluded this defence altogether if they harboured any doubts about guilt on the other counts.

All or Nothing: Legal Dichotomies and Social Realities

There are several revealing choices of words and rationalities here concerning the complainant’s communication of non-consent, her credibility, and reliability, and the construction of these in absolute terms. While it is open for a jury when faced with multiple indictments to find an accused guilty of some, and not guilty of others, in this case it seems that the judicial view was that he must be guilty of all or nothing. The problem with Henry’s assessment was the fact that he then conflated the jury’s uncertainty with the victim’s credibility. His inference being that doubting her credibility in one instance but accepting it in another, necessarily led to an unjust or illogical split judgment, made by an unreasonable jury. Overall, Henry’s assumptions both reinforce phallocentric representations of women’s credibility, and ignore the social reality of sexual violence which do not fit the narrowly constructed legal binary logic.

Similar ‘all or nothing’ logic has been observed by Taslitz (1999) and Rock (1993) who found that barristers present juries with either the prosecution or defence case, rather than acknowledging that elements of both can be true. Smith and Skinner (2017) also found prevalent dichotomies of the truthful/untruthful witness, with a witness’s evidence being portrayed as wholly accurate or wholly inaccurate by judges and defence barristers. The gendered underpinning of such legal dichotomies of ‘all or nothing’, ‘credible or incredible’ ‘guilty or not guilty’, ‘reasonable or unreasonable’ is well worn territory in feminist legal studies. The seminal work of Smart (1989) contended that while such dichotomies are legal fictions, they are central to the laws method and its claim to establishing ‘Truth’. Furthermore, these dyads, according to Hunter (1996) are then mapped onto the masculine/feminine socio-cultural dichotomy in ways that always relegate femininity to the negative, incredible, and unreasonable. Such dichotomies have presented ongoing challenges to women seeking protection from violence in the face of socio-legal discursive legacies that position ‘the word of a woman’ (Jordan, 2004) as inherently unreliable and in-credible (Kelly, 2010).

As such, it is unsurprising that ambiguities in the jury’s perception of guilt was framed by the Appeal Justices as a reflection on the complainant’s credibility. This is also consistent with the broader parameters of ‘reasonable belief’ doctrine. A reasonable belief standard, as suggested earlier, covers offenders with a mistaken but reasonable belief in consent. There was no burden on Lennox to prove that he was acting under an honest and reasonable mistake in the original trial. It was for the prosecution to prove beyond a reasonable doubt that his belief either was not honest and genuine or that it was not reasonable for him to hold that belief in his circumstances. Thus, the turning point is often on what the victim did to communicate non-consent to dislocate the accused’s claim to a reasonable belief in consent, and the credibility of her communication. In this way, the standards of ‘reasonable belief’:

fits like a perfect jigsaw piece into the traditional conduct of the sexual assault trial, the structure of which has, historically, encouraged the jury to focus on the complainant’s behaviour, in order to determine what ‘signals’ she sent the defendant and invites the jury to blame the victim for the defendant’s belief. Thus, the inquiry remains the same whether the standard is subjective (an honest belief) or objective (a reasonable belief) (Cossins, 2019: 475).

Such questions are reminiscent of Smart’s (1989) analysis on the nature of laws claim to ‘Truth’ through systems of exclusion and binary logic which present an impervious obstacle to understanding the reality of rape. Drawing on a Foucauldian inspired analysis of truth, power, and knowledge, Smart (1989) considered the problem of the ‘legal method’ or the process by which law arrives at its version of ‘Truth’, which by its nature is an exercise of power that disqualifies other forms of knowledge. The legal method combines with a broader notion of ‘binary logic’, which refers to the ways in which we think in oppositional and hierarchical terms – active/passive, truth/lie, culture/nature, rationality/emotionality, man/woman. While this binary logic is central to Laws claim to ‘truth’, such oppositions like truth/untruth, guilt/innocence, consent/non consent, rape/not rape are completely inappropriate to the ambiguity of sexual violence (Smart, 1989: 33).

Indeed, a rich body of feminist work has long established the ways that these dichotomies sit in contrast to the reality of sexual violence. Women’s experiences of such violence include a range of connected sexual acts involving different levels of consent, coercion, or force (Kelly, 1988, 2012). Critically, the dominant feminist socio-cultural approach positions rape as simply the end point on a continuum of heterosexual interactions in which male aggression and female passivity normalise forms of coercion (e.g., Gavey, 2005). As such, the experience of minor sexual intrusions, and more overt sexual violence and rape, such as that experienced by the Lennox’s complainant, cannot be understood in purely dichotomous terms. Indeed, as Gavey and Sen (2014) argue, not only are the boundaries between just sex, and sexual violence blurry, it can be argued that these cultural norms provide a kind of camouflage for disguising violence amid sex. Yet the law requires a clear distinction between rape and not-rape. Moreover, the law plays a central role in deciding what counts as ‘rape/not rape’ and in so doing discounts the experiences of many women. This strategy of inclusion and exclusion including what men define as violating/abusive and excluding much of what women experience as violating/abusive. The following section contrasts the dichotomous logic of the Justices of Appeal with such a sociocultural framework for understanding sexual violence and its social interpretation.

In the Grey Area: Reasonableness, Consent, and Credibility in a Continuum of Sexual Violence

Central to the argument of the Justices of Appeal, was the rationale that the five counts of indecent and sexual assaults did not happen on ‘materially different’ occasions. ‘They were all part of the same allegedly unwanted sexual encounter’ (per Henry at 112). Henry J referred several times to the proximity of the acts of unwanted kissing, touching, penetration, and forced masturbation. On this reading, the five counts needed to be characterised as a coherent whole made up of a sequence of progressive events. It was therefore suggested that all of the events should have been regarded by the jury in the same way, either wholly guilty or wholly acquitted.

In outlining the dubious logic of this judgment, Kelly’s (1988) paradigmatic continuum of sexual violence is a useful interpretative framework. Kelly’s (1988) use of a continuum of sexual violence reflects two lay meanings. She describes it first as referring to the ‘basic common character that underlies many different events,’ and secondly as ‘a continuous series of elements or events that pass into one another and which cannot be readily distinguished’ (1988: 76). The first meaning, according to Kelly, enables understanding sexual violence in a generic sense, pointing the ‘common characters’ of sexual violence, which include ‘abuse, intimidation, coercion, intrusion, threat and force men use to control women’ (1988: 76). At first glance, this might accord with the views of Justices of Appeal. If the common character of the five counts all involved a lack of consent, then it may seem illogical for a jury to acquit Lennox of some and find him guilty of others. However, Kelly’s (1988: 76) second meaning of a continuum offers a more critical reading. According to her analysis, the second meaning enables us to document and name a range of less obvious forms of intrusion, coercion, and compliance as being connected on a spectrum of behaviours to more obvious abuses. That is, the way that common experiences of unwanted sexual attention, coercion and harassment eventually blur into more overt sexual violence. As such, specific forms of sexual violence such as rape, are connected to more common, everyday intrusions that women experience, as well as aspects of male behaviour that draw on a range of normalised forms of heterosexual intimidation, coercion, threat, and force. For Kelly, this concept of a continuum then shows that while in the abstract, we easily draw lines between ‘typical’ and ‘unharmful’ versus ‘abhorrent’ and ‘harmful’ male behaviour, they actually shade into one another (1988: 75). Such a framework calls into question the apparent assumption that a ‘reasonable’ jury could so easily characterise an encounter consisting of such a continuum of behaviours (ranging from unwanted kissing, through to forced intercourse), as entirely criminal.

This grey area is further examined by Nicola Gavey (2005) in her influential work on the ‘cultural scaffolding of rape’. For Gavey (2005), rape coexists with other forms of unwanted and coerced sex, revealing how sexual violence links to everyday day gender norms. Furthermore, rape is then enabled by this myriad of everyday social and cultural practices (Gavey, 2005). At the heart of this is the everyday taken for granted features of heterosexuality that normalise and naturalise male sexual aggression and female passivity (Gavey and Senn, 2014). Gilbert and Webster’s (1982: 114) analysis of rape is also representative of this approach. They contend that rape merely extends the traditional heterosexual exchange in which masculine pursuit and female reticence are familiar. Although rape is an exaggeration of gender and power, it contains the same rules and rituals of a heterosexual encounter. Such rules require that women offer ‘token resistance to sex that they secretly desire, in order to protect their sexual reputations’ (Powell et al., 2013: 459). This assumption of female resistance normalises the pervasive view that men need to persuade women into sex, and that woman’s resistance to sex is merely part of a cultural seduction script, rather than an authentic rejection (Gavey, 2005; Powell et al., 2013). In this script, hetero-sex is defined by seduction, resistance, and conquest. Burgin (2019) has shown that such narratives of force and resistance continue to permeate adversarial criminal rape trials in Australia.

Gavey (2005: 70) described the cultural scaffolding of rape as ‘the legitimized, normalized, and normalizing constructions of aggressive male sexuality and passive female sexuality that provide not only a social pattern for coercive sexuality but also a convenient smoke-screen for rationalising rape as merely ‘just sex’. For Gavey (2005), underpins this script with two discourses. Firstly, the male sexual drive discourse encompasses how normative (hetero)sex is patterned in ways assume an active male subject, who ‘does sex’ to a submissive female partner, in the absence of her active desire. Secondly, the ‘coital imperative’ discourse constructs the main point of hetero-sex as penetration of the vagina by the penis. Gavey (2005) argues that this is so embedded with the normative script for heterosexual sex that it is the defining feature of (hetero)sex (Gavey, 2005: 117). Although other sexual acts are included within hetero(sex), the absence of intercourse renders what has taken place as not ‘properly sex’. This view is further substantiated in the common notion foreplay, which suggests an act before and less important than the main event, the real sex (Gavey, 2005). MacKinnon (1987: 87) argues that this definition of rape is ‘exactly what heterosexuality as a social institution is fixated around, the penetration of the penis into the vagina’, and that rape as it exists in social and legal spheres is defined in terms of ‘what men think violates women’. These definitions then become the framework for defining both sex and sexual violation. These definitions of sex and rape are problematic precisely because they limit the scope of what constitutes rape (Burgin, 2019).

This framework contextualises the jury’s inconsistent verdict. Firstly, the discourse of the male sex drive, and force and resistance seductions scripts, may mean that the jury saw the actions of unwanted kissing and touching as unremarkable, typical aspects of male heterosexual conquest, and female submissiveness. In this way, Lennox’s actions of kissing and groping the complainant, despite her protests, may be seen by a jury as common-place elements of heterosexual seduction, resistance, and conquest. Secondly, the ‘coital imperative’ discourse may have further impacted the jury’s verdict, by rendering the kissing, touching, and forced masturbation elements of the offence as less serious, or not ‘not real sex’. This assumption does not then mean that the jury finding of guilt for penetrative sexual assault was inconsistent or illogical. Instead, it may merely reflect a ‘coital imperative’ discourse of sex, in which the jury, reflecting broader cultural discourses, believe the ‘real’ sex and, therefore, the ‘real’ sexual assault, related more substantially to the act of penile penetration. For Gavey, these norms form the common-sense logic of heteronormativity, form the ‘cultural scaffolding of rape’ (Gavey, 2005). This cultural scaffolding is widely tolerated, even while rape itself is condemned. Taken together, the jury’s verdict to acquit Lennox of the assaults both before and after the rape of which they found him guilty, reinforces the view that sexual violence against women ‘rests squarely in the middle of what our culture defines as ‘normal’ interaction between men and women’ (Johnson, 1980: 136). In this sense, the jury’s verdicts are not illogical or unreconcilable, but somewhat reflective of broader social scripts.

The continuum demonstrates how normative (hetero)sexuality is infused with violent dynamics that can be articulated as a continuum of sexual violence. One effect of this that ‘“typical” and “aberrant” male behaviour shade into one another’ (Kelly, 1988: 75). However, a secondary effect is the creation of an ambiguous grey area between the categories of sex and sexual violence (Gavey, 2005). For example, Gavey (1999: 60) argues that firstly sex and violence are often difficult to distinguish (both discursively and practically). Secondly, dominant discourses continue to posit sex and sexual violence as opposites, which renders experiences that happen in between these as ambiguous. The jury’s inability to agree on count three (the digital penetration preceding the rape) speaks to this ambiguity. Lennox did not dispute that he digitally penetrated the complainant, but he did argue that she had indicated consent (at 42). This indicates that the jury was unable to decide on whether Lennox could be acquitted based on an honest and reasonable belief in the complainants’ consent. Henry J suggested this could only be attributed to the jury’s doubt in the complainants’ credibility as to whether she sufficiently communicated her lack of consent to Lennox. However, in the context of an ambiguous social grey area between rape, sexual coercion, and mutually consenting sex (Gavey, 2005: 9), definitions of what constitutes normal versus deviant behaviour are often unclear, obscured by the social context in which these situations take shape (Kavanaugh, 2013). The trial itself, and the appellate judgment, were a contest over this meaning.

The jury’s verdict can be understood in terms of these sociological dimensions, social norms, and values about heterosexual sex and sexual assault. For example, the complainant may have been seen by the jury as telling the truth about what she ‘said’ to the accused, while also holding a view that ‘normal’ hetero sex may involve men’s attempts to turn a no into a yes. Thus his ‘reasonable’ belief is not necessarily purchased at the cost of her credibility. While concerted efforts have been made to educate the judiciary on sociological dimensions of sexual violence and challenge discredited myths about sex and women, the resistance to acknowledging this sociological reasoning in Lennox’s appeal is concerning. As Kelly’s (1988) and Gaveys (2005) framework reveals, social, cultural, and legal discourses position sexual violence as both normal and abhorrent. In such a cultural context, heterosexual encounters normalise some forms of intimate intrusion on women, excuse, and even valorise some forms of heedlessness or inattentiveness of women’s sexual desire and autonomy, while also condemning some forms of sexual violence that stray too far from the rape as romance script. It should be no surprise that in such a context a reasonable belief in consent, in the jury’s mind, could be tempted to incorporate ‘normal’ male sexual coercion, but not extend to the rape in the face of evidence that the complainant continued to physically and verbally resist and cry. Such logic might rely on problematic rape myths and socio-cultural sex scripts. However, that was not the basis of the legal contention, which could only read this ambiguity as a sign that the jury doubted the complainant’s credibility and therefore should have reasonable doubted her entire testimony.

Yet what this analysis reveals is that the real question is not whether the victim was ‘credible’, nor whether the accused’s belief in consent was reasonable. The real question is whether we think that judges and jurors ever believe that ‘normal’ heterosexual encounters may involve levels of coercion and submission. If so, how does the law either reaffirm or erase women’s consent. What is at issue underneath these discussions is a representation of the phallocentrism of sex in law identified by Smart (1989). Phallocentrism implies a culture which is structured to meet the needs of the masculine imperative. The result is that legal assumptions about sexuality are situated within the context of, and actively engaged in the projection of, a phallocentric vision of female sexuality and heterosexuality. According to Smart (1989: 35) the whole rape trial is a process of disqualification of women and a celebration of phallocentrism.

Conclusions: Reasonable Belief and the Credibility Conundrum

The Lennox case raises some issues about the interpretation of a reasonable standard and its interpretation by the court of appeal. The appellate decision to acquit Lennox of the rape assumes that the jury could not have reasonably ruled out a mistake of fact for the rape if they had accepted it for the other counts. The perceived inconsistency of the jury’s decision was interpreted by the Court of Appeal as signalling the unreasonableness of their overall decision. In practice, this reasoning was focused on the how the judiciary imagined that the jury viewed the complainant’s credibility in her testimony that she had unambiguously communicated non-consent to all five counts, ranging from unwanted kissing and groping, to rape. Critically, in the judicial logic, the jury’s decision to convict only for the rape, and not the other counts, was rationalised by the perceived (in)credibility of the complainant. Such a narrative is evocative of historical discourses of women’s untrustworthiness, where ‘the word of a woman’ (Jordan, 2004) were considered inherently unreliable and in-credible (Kelly, 2010). The article therefore raises further questions about the persistence of judicial attempts to locate uncertainties about consent in the perceived (in)credibility of women, rather than the broader cultural context which produces such grey areas of consent, coercion, and acquiescence.

The analysis presented here suggests the jury’s verdict is not necessarily illogical, but somewhat reflective of the ‘split reality’ that characterises many rape cases when aspects of the act can be experienced as an intrusion by the woman, but not regarded as criminal by the man, the courts, or by the public (Higgins and Silver, 1991). This highlights the importance of a feminist sociocultural reading that foregrounds rape on a continuum occurs among other intimate intrusions. As such is often difficult for people to distinguish between unwanted sex and ‘rape’. Within this ‘cultural scaffolding of rape’ (Gavey, 2005), where elements of force and coercion are (mis)acknowledged as normal resistance and seduction, no amount of unequivocal communication of non-consent could preclude some jurors from accepting that an accused may still have had a reasonable belief. In the case of Lennox, concerning an acquaintance rape involving multiple charges, such heterosexual discourses can position the lesser charges in the lead up the penetrative assault as ‘normal’ male pursuit and female resistance. As such, it is unlikely a jury would have unanimously endorsed a view that Lennox’s belief in consent was unreasonable on all counts, despite the complainant’s unequivocal non-consent. This is also consistent with mock jury research (see Larcombe et al., 2016). Despite this, legal discourse searches for absolutes, and constructs dichotomies that hinge on ‘all or nothing’, ‘guilty or not guilty’, ‘credible or incredible’. Yet in a social script where juries may be unlikely to unanimously find such a belief wholly unreasonable, then the standard remains inherently biased in favour of the accused.

This suggests a deeply embedded ‘credibility conundrum’ (see Jordan, 2004) within the standards of a reasonable belief in consent. In practice, the standard of reasonable belief in seemingly requires the victim to show that she unambiguously refuted consent. However, this is at odds with both the prevailing judicial discourses which position women as incredible, and the enduring social discourses that normalise men’s ignorance of women’s communication of non-consent. Indeed, the appeal logic that the jury decision in Lennox was indicative of the juries doubts in the complainant’s credibility instead of reflective of broader social norms, demonstrates the ease at which legal actors can erase women’s sexual autonomy. Her non-consent is replaced by a legal ‘truth’ that disqualifies her experience of rape. Such a legal method according to Smart (1989) is embedded in the backdrop of phallocentrism in both law and society.

The judges’ persistent turn to the perceived credibility of the victim to construct the jury’s decision as unreasonable reveals something of the normative function of standards of reasonableness in legal discourse. As Abrams (1995: 49) suggests, judges may view the standards of reasonableness as authorising them to decide cases based on their intuition. According to Moran (2003), the objective standard too often derives its ‘reasonableness’ from an untroubled appeal to common-sense understandings of what is normal. However, in the face of widespread ‘unreasonable’ beliefs, we require a more critical reading of the normative function of reasonableness and how it enables only certain beliefs to feed into the standard. The central concern for sexual assault cases is captured by Estrich’s (1987) argument in the impossibility of relying on a standard of reasonableness given its malleability.

Most studies focus on how juries may inhibit the reform and implementation of rape law by relying on victim-blaming attitudes (see Ellison and Munro, 2013). This article provides a slightly different perspective. While the jury, in this case, may have relied on cultural logic that renders some forms of sexual intrusion less problematic – ultimately, their decision seemed more progressive than that handed down by the court of appeal. A feminist sociocultural framework highlights the normative ‘cultural scaffolding’ for sexual violence that may contextualise such jury decisions and challenges. It highlights the importance of attending to the connections and ambiguous boundaries between sexual violence and other forms of sexual intrusion that juries may normalise, and the of the judiciary in designated the boundary lines of where a reasonable belief begins and ends. In particular, the Lennox decision seems to highlight that there is little consensus between the judiciary and the community as to the circumstances and factors that would make a mistaken belief in consent reasonable. It is clear that Smart’s (1989) insight that law is an important site of engagement with hegemonic constructions of gendered relationships and, crucially, of ‘counter-discourse’ is still valid today. This article contributes to the body of critical feminist research of rape law across Western jurisdictions, by problematizing the application of reasonable belief standard at the intersection of feminist, social, and judicial discourse. As a single case analysis, this conclusion is not necessarily representative. However, the qualitative case analysis provides material for further reflection on problems with both judicial and community interpretations of objective standards in a reasonable belief in consent and its application.