On Rape is a tiny book with a gargantuan title.
Coming in at a bit over 10,000 words, it is part of a larger Melbourne University Press series (alongside Sarah Ferguson’s On Mother and Leigh Sales’ On Doubt, which are between 10,000 and 15,000 words each). That’s a nice, long essay; enough space for other authors to achieve a structured and specific pondering. But Greer’s approach is to split the book into nine even smaller sections with titles like “Joystick or Weapon?” and “Cure, Kill, or Castrate the Perp?” Rather than focusing our attention on smaller facets of the issue to build a discernible argument, the result is rambling.
The blurb begins with “It’s time to rethink rape”, goes on to say “Very few rapes find their way into court,” but finishes by saying “litigation balloons”. The contradiction is an accurate (and therefore disappointing) signposting for the reader. Greer’s opinion that reducing sentences will increase convictions is the closest the text comes to a central argument, but it is articulated at the one-third point and then only occasionally referred back to. There is no sense of this argument being built upon throughout the work.
Certain unsupported opinions are repeated in chapters that are supposed to be about different things. Most critically, there is no specificity of jurisdiction, rendering the vast majority of her legal discussions disjointed. One does not need to be a comparative law lecturer to understand the basic compare-and-contrast approach to building an argument, but this book appears to be more an exercise in cherry-picking interesting quotes and cases with a disregard for their source, and therefore their implications.
This is the first time I’ve written a negative review of a book and I am made quite uncomfortable doing so, but I take legal communication very seriously in our current, charged environment. The way we write and speak about the law has a real effect on the way people make decisions about whether or not to report crimes done to them; language shapes attitudes.
All of MUP’s other “On Books” titles appear to have a front cover endorsement from someone other than the author themselves. The absence of one on this title is unusual and signposts something of the tone of the book. Instead, the quote comes from Greer: “The double bed has a lot to answer for”. I agree with this completely (in Queensland it wasn’t possible for a man to rape his wife until they made it illegal in the ‘80s) and wish the book actually explored this area properly.
The first chapter sets out Greer’s main point about the marriage bed:
Rape is a jagged outcrop in the vast monotonous landscape of bad sex; we can only understand its prevalence and our inability to deal with it if we position it correctly within the psychopathology of daily life.
She then provides an anecdote about a husband and wife she overhears one night as a guest in their house. He pressures her for sex, she refuses, he pushes, and “the cries subsided, to be replaced by rhythmic squeaking of bed springs”.
It turns out these rapes went on quite often, but that the wife didn’t want to put her husband in jail for seven years. If the book dug deeper into this specific set of circumstances, we may have gotten somewhere. And, while I disagree with the “outcrop” and “bad sex” line, I do see value in acknowledging the prevalence of sexual violence and its everyday-averageness for so many women.
It is a critical question — what is a wife to do with a husband who doesn’t see himself as a rapist but continues to overpower her and force intercourse? What does “relenting” really mean? Shortly after, though, the reader is given a full four pages about the allegations against Julian Assange ultimately failing and told the “Swedish position is no clearer than mud”. By page 14 we have already jumped to a different modus operandi and the other side of the world.
Later, in a chapter titled “The Conundrum of Consent” which deals with the Luke Lazarus and Saxon Mullins case, Greer (like many journalists) reports that the “appeal against the acquittal was dismissed” and “[Judge Robyn] Tupman’s verdict upheld” without clarifying the actual comments of the court — that Lazarus had already served 10 months in jail and that to order a third trial would be “oppressive” and “unfair” despite the second ground of the Crown’s appeal being made out.
Obviously this is an extremely frustrating situation, but to simply say that the Court of Appeal “upheld” Lazarus’ acquittal is a serious miscommunication of the actual ruling.
In Greer’s discussion of consent that follows, she says “there is now a presumption that the issue of consent is not problematical” because she disagrees with campaigners who say “no means no and yes means yes”. Greer does not believe sexual interaction is “a matter of signing on a dotted line”. This is frustrating to read because there are huge benefits in shifting towards a positive definition of consent, and I don’t know a single person who thinks the issue of consent is solved or “not problematical”. On top of this, physical actions like kissing and undressing, and sounds and words, can all communicate consent. The “stop and ask for a signature” line is offensively inaccurate and, once again, dangerous to promote.
After all that, we find ourselves at Greer’s offering of a “better way” to deal with all this, which we were promised on the blurb:
The burden of proof required to prove rape in a criminal court can never be satisfied; if we are to abandon the formulation used in many jurisdictions, that the defendant who reasonably believed that the victim consented is innocent, and rely instead upon the victim’s statement that she did not consent as sufficient, then we will have to lighten the tariff. We will have to reduce the penalties for rape. The mere suggestion will cause an outcry which is one good reason for making it.
Here are the reasons this argument fails:
1. The burden of proof for rape in a criminal court can be satisfied. Hundreds of men are sentenced for rape each year in Australia. They represent a tiny proportion of offenders, but it is useless hyperbole (and representative of the rather frustrating tone of the whole book) to say a court “can never be satisfied”.
2. The “formulation used in many jurisdictions” presumably refers to a defendant’s ability to use his honest (albeit mistaken) belief in the complainant’s consent in his favour, as Luke Lazarus did. Greer has made no mention of the requirement for a defendant to also prove their mistaken belief was reasonable. These are two separate requirements — the subjective test and the objective test — and if a writer is to engage with specific legal concepts they have a responsibility to get them right and explain them fully.
3. There is no acknowledgment that the severity of a sentence is the discretion of the judge, guided by case law, and that different factual scenarios do result in varying degrees of severity of sentence.
4. There can be no “evening out” process where conviction is made easier if sentence is made lighter. This offends basic principles of fair process and justice. Australia’s varying definitions of consent and the “mistake of fact” defence absolutely require review, but that review does not need to be traded off by a lower possible sentencing outcome, nor should it. If the people and the government have standards required for conviction then on principle those standards must apply equally to someone facing a life sentence or a $100 fine.
5. There is no evidence provided for the presumption that people are more likely to be convicted by a jury if the possible sentence is decreased. Juries are not informed of sentencing ranges when they are faced with findings of fact, nor do they know the defendant’s criminal history, which has a huge effect on sentencing range. Greer has given no indication (I could not find a citation anywhere in the book) indicating she had researched jury process or spoken to any experts on juries in Australia.
6. Causing “outcry” may be satisfying to Greer, and may help her sell books or secure speaking engagements, but it will not help us improve the justice system and is certainly not a solid basis for jurisprudential thought. When I suggested that a court-appointed expert in trauma response be called as an expert witness in every sexual assault trial so that the jury may hear how a woman’s “Freeze” response is normal and understandable, I was met with some “outcry”. I made that suggestion because I have done my research and spoken to experts, and because I don’t mind being met with “outcry”. I certainly do not seek it out or encourage it. That is called “useless shit-stirring” and I challenge its efficacy.
Again, later in the book, she re-states this opinion: “it is the savagery of the sentence that pushes juries towards extending the benefit of the doubt”, and possibly the most factually unsupported statement of all:
No one has to my knowledge considered the possibility that harsher sentencing could persuade a man guilty of sexual assault that he might as well kill his victim, because his sentence is likely to be shorter for murder than it would have been for rape, with the added bonus that his victim could not give evidence against him.
Greer then goes on to compare the sentence for an attempted murder with a committed rape, failing to realise the comparison in sentencing could only be logical if comparing attempted murder with attempted rape. Actual outcome is, necessarily, a critical component of sentencing. This chapter was particularly exasperating. Even the most erudite, concise thinker could not do justice to such a monstrously broad topic in so little space — especially when there is apparently no consideration for a jurisdictional focus.
Some passages were educational for me. For example, I am reluctant to speak positively about out-of-court resolutions generally as, although the complainant may gain closure, it means the defendant never gets a criminal record. Reading the first-hand accounts of women who had benefited from the mediation process in the “Damage Limitation” chapter was an important reminder to me that no survivor bears the responsibility or duty to bring formal charges against their offender.
Greer also raised an example of a software program used at universities in the US called Callisto. Complainants can type up their experience, submit it to the system with a timestamp, and the authorities will only be notified if “the content of the document matches with another account”. Reports quadrupled, 13 institutions have signed on, and there are strong statistics indicating high likelihood of repeat offenders. This passage would have left me with a more positive impression if not for Greer’s remark less than 20 pages earlier that “half-heartened attempts to deal with the shockingly high incidence of rape on college campuses have led to deeper confusion and bitterer antagonism between the sexes”. Greer neglects to include any consideration for the Change the Course report from the Human Rights Commission in 2017 and so cannot engage with their comprehensive, research-based findings.
A final nail in the coffin comes at page 86 of 88:
One approach could be to separate the elements of assault for which consent is not an issue from the actual rape in which it is the only issue. It should be possible then to convict on the assault charges while leave the rape issue moot.
It already happens in every Australian jurisdiction that a physically violent rape may result in one indictment document leveling multiple charges at a defendant — a combination of assault and sexual assault. Anecdotally it is common for defendants in these cases to offer to plead to the violent charges if the sexual charges are dropped. And what does Greer mean here by “moot”?
The comment distills the same lack of legal knowledge and lack of clarity of expression displayed throughout the entire work.
Overall, On Rape is not a good enough piece of writing to be deemed truly controversial.
If you or someone you know is impacted by sexual assault, domestic or family violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au. In an emergency, call 000.
Bri Lee is an author and freelance writer. Her first book, Eggshell Skull, is about systemic injustice and sexism in the Australian legal industry.