How the media and the law have made sex and rape interchangeable words

By Jane Gilmore

Last week The Sydney Morning Herald reported on a man’s sentencing for the crime of attempting to have sexual intercourse with a woman without her consent. In the headline he was a “sex attacker”. In the article what he did was a “sex attack”. The words “attempted rape” did not appear anywhere in the article and neither the SMH nor the journalist were at fault for failing to use that phrase.

The word rape doesn’t exist in the NSW crimes act. It’s been replaced with “sexual assault” and “attempted sexual intercourse without consent”. These are words that mean rape or attempted rape without actually using those terms. The result of this that “rape” and “sex” have become interchangeable terms in media and public discussion of rape.

Rape is not sex. The two words may refer to the same physical act but the key concept that differentiates them is consent. Sex is a mutual choice. Rape, for the victim, is the absence of choice. If there’s no consent and no choice, it’s not sex, it’s rape. This is not petty pedantry over terminology, it goes right to the heart of how we talk about rape and, because words give form to thought, the heart of how we think about rape.

When we blur the line between the words we use for these two very different acts, we diminish our understanding of the thing that fills the chasm between them – the concept of consent.

The media is often the conduit of information between the courts and the public. The “public” being a catch-all term for everyone in our society and that includes all the people who have been raped, all the men who have or might commit rape, and everyone who sits on juries in rape trials. The way the media reports rape therefore plays a crucial role in how all those people understand the difference between sex and rape.

Associate Professor Jason Bosland from University of Melbourne’s Law School says the terms in the legislation create potential tensions for journalists. “On the one hand, journalists need to use language and terminology that is familiar to and easily understood by their audiences; on the other hand, journalists must accurately describe, in legal terms, the precise offences in question.”

Most states in Australia (except Victoria) have removed the word “rape” from their Crimes Act and introduced the offence of “sexual assault”. All jurisdictions have widened definitions, removed gendered terminology, updated the definition of consent and recognised that all forms of sexual violence are criminal and traumatic.

Karen Willis is the CEO of Rape and Domestic Violence Services Australia. She says the main focus of the reforms was to include all penetrative acts into the most serious category and broaden the community understanding of sexual violence. “It was important work and those broader definitions are appropriate, but it does mean that we’re now talking about sex-based crimes rather than using the word rape,” she says.

The best intentions can still result in unintended consequences. Award winning journalist Nina Funnell recently exposed the effects of new gag law in Victoria that strip rape and sexual abuse survivors of the right to tell their stories under their own names. The intent of the laws was almost certainly to protect survivors from being identified in the media against their will. The effect, however, is that survivors now can’t tell their stories without prohibitively expensive court orders. End Rape on Campus Australia and the #LetUsSpeak campaign are advocating for change and the Victorian government is attempting to fast track corrections. “Government should have responded when this issue was first put on their radar in April,” Funnell says, “They should have engaged actively and respectfully with survivors and advocates from the beginning, rather than waiting for it to blow up in the media.”

This is just another demonstration of the difficulties in law reform on rape. Balancing protections for victims and the crucial presumption of innocence for the accused is extremely complex and an adversarial justice system is just not suited to the unique crime of rape. The presumption of innocence has to mean that the courts must presume a rape victim is lying and defence lawyers win trials by creating reasonable doubt about the rape victim’s testimony.

There was some hope that removing the word from legislation might encourage more people to report their rape to police. It was also hoped that perpetrators would be more likely to plead guilty, sparing their victims the trauma of a trial, because the very ambiguity of the term “sexual assault” would be less damaging than a rape conviction.

There’s little evidence that thirty years of law reform has been effective in achieving these aims.

The conviction rate on reports to police in New South Wales has moved from 14 percent to 17 percent over the last ten years (by comparison, conviction for non-sexual assault is nearly twice that). Victims still report that the trial, and particularly the cross examination, is traumatic and shaming. The victim blaming tactics used by defence lawyers, who rely on rape myths to discredit victims, has not changed substantially since the 1950s.

The number of incidents reported in that time has increased by nearly 30 percent. Some of that improvement is due to larger populations, increased reporting and improved police response after decades of work by survivors and advocates.

It’s also feasible that the level of sexual violence has actually increased over that time, but it’s impossible to know for sure where the difference is between reporting levels and actual occurrences.

Reducing the number of rapes that occur in Australia and increasing the convictions for the men who do rape means ensuring that everyone clearly understands the importance and expression of consent. That can’t happen unless the difference between sex and rape is starkly unambiguous. At the very least we should start with calling sex without consent what it is: it’s rape.

Jane Gilmore was the founding editor of The King’s Tribune. She is now a freelance journalist and author, with a particular interest in feminism, media and data journalism and has written for The Guardian, The Sydney Morning Herald, The Age, The Daily Telegraph, The Saturday Paper and Meanjin, among many others. Jane has a Master of Journalism from the University of Melbourne, and her book FixedIt: Violence and the Representation of Women in the Media was published by Penguin Random House in 2019.

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