Rape is a Theoretical Crime: Part 6 - 50 years of change and reform

Since the 1970s, feminists and advocates have done so much to change how people think about and respond to rape. Did it work? If not, was all that work wasted?

“It was a saying of Kinsey that the difference between a ‘good time’ and a rape may hinge on whether a girl's parents are awake when she finally arrives home”.

- Law Reform Commissioner, Report No, 5, Rape Prosecutions: Court Procedures and Rules of Evidence, Melbourne, 1976

This is part six of a series on sexual violence.

• Part One: The Data examines the available data on rape and sexual assault in Australia, which shows that men have raped or sexually assaulted at least one quarter and possibly more than half the women in Australia.

• Part Two: Understanding Rape Myths looks at rape myths and how they are used to obscure the reality of sexual violence.

• Part Three: Shame Must Change Sides on Gisèle Pelicot’s declaration that ‘when you’re raped there is shame, and it’s not for us to have shame, it’s for them’ and the effect of shame on people who have been raped or sexually assaulted.

• Part Four: Why do men rape? There is no simple or single answer to this question but believing in rape myths and shamed masculinity are common in men who rape. This might give us a path to prevention.

• Part Five: Justice in the justice system The purpose of the justice system is not to find justice for victims. It is to ensure a fair trial for people accused of crimes and then punish the people who are found guilty.

This article is about rape and sexual violence. Helplines are listed at the end. Please call them if you are hurt, shaken, scared, in pain or you just want someone to talk to.

In 1974, then Prime Minister Gough Whitlam established the Royal Commission into Human Relationships. Despite budget cuts and moving deadlines imposed by the Fraser government after the dismissal, the Commissioners presented their reports in 1977. They are a truly fascinating exploration of marriage, love, parenting, faith, sex, education, healthcare, racism, violence, abuse and rape as those things were understood at the time. They’re also an invaluable measure of change. Some parts of the reports could easily have been written by today’s radical progressives, others are painfully archaic to modern eyes.

The section on rape (in volume 5) explores the evidence that most rapes were not reported to police, why the conviction rate was so low in rape trials and strived to find recommendations that might reduce the prevalence of rape and make rape trial less traumatic for women who had been raped. Much of it is as relevant now as it was when it was written almost 50 years ago.

The report also summarised feminist thought at the time about removing the word ‘rape’ from the criminal code and replacing it with ‘sexual assault’. The reason, they said, to make this change was that they wanted consent removed from the legal definition of rape so women could not be questioned on their demeanour or behaviour in rape trials. The report suggested that sexual assault should be viewed no differently to any kind of physical assault: as long as there was evidence of violence, the accused would be convicted.

A journalist who was a cadet at the time told me that there was a lot of support for rebranding rape as sexual assault. He said many readers liked the idea that people would be more likely to plead guilty to sexual assault than rape “because it didn’t sound so bad”. He also told me that journalists supported the change because “writing about rape was uncomfortable, it’s an ugly word and ‘sexual assault’ doesn’t unsettle people as much”.

NSW, ACT, NT and WA have all removed the uncomfortable word “rape” from their criminal code and replaced it with “sexual assault”, “sexual intercourse without consent” or “sexual penetration without consent”.

Other recommendations in the Royal Commission’s report on rape covered physical and mental health care for victims, legislative reforms to make trials less painful and shaming for women, training for police and court staff to reduce the prevalence of rape myths, and special support and services for child victims. Some of these recommendations were implemented. Many were not.

In 2025, the Australian Law Reform Commission (ALRC) released its report on “Justice Responses to Sexual Violence”. It’s a 600 page report that makes over 60 recommendations on various changes state and federal governments could make to give some measure of justice to people who have been subjected to sexual violence. I’ve read it several times now and the best I can come up with is… well, at least it’s not terrible.

The recommendations lean a bit too heavily on the belief that training will end police and court’s reliance on rape myths, and that this in turn will result in significant increases in reporting, but at least the report recognises that rape is underreported and most men who rape people are never held accountable. There are several recommendations about strengthening alternative paths to justice as well as new structures inside the legal system to support people who have been raped as they trudge through the process. Experts and advocates, such as Nina Funnell, have been asking for this for years, so it’s nice that the ALRC is on board now too.

It's undeniable that if all the report’s recommendations were fully funded for long-term, structural implementation, rape and sexual assault survivors would find the criminal system less traumatising than it is now.

The realist (cynic?) in me says that this not-terrible report and it’s not-terrible recommendations will go the way of all the countless other reports that came before it. Months of sincere effort, millions of dollars, more people opening their veins to bleed out their trauma in the desperate hope this will make a difference to other traumatised people, even though they know the only difference it will make is that the report can piously claim to have consulted a “lived experience panel”. And nothing much will happen.

Various levels of government will issue press releases about taking “take matters of sexual violence very seriously” and pretend that one pilot program based on one recommendation is real action while ignoring the interlinked dependence of the recommendations (they all need to happen together as embedded, structural long-term changes to be effective). Short-term tweaks and messing about with the decimal points does nothing but create even more frustration and revulsion with a system already designed to be hostile to women and children.

For example, when the report was released, the federal government promised $7M a year for 3 years to temporarily prop up some structurally underfunded legal services, fund a pilot program, and collect more evidence on the attrition of rape cases from the legal system. To put that in context, Federal MPs spent over $8.5M on employee travel in just the first 3 months of 2024.

In the 2025 election campaign the report was barely mentioned, and no new funding was announced.

Plus ça change.

Australia’s National Research Organisation for Women’s Safety lists just over forty inquires on various topics “relevant to domestic and family violence, sexual assault and women’s safety”. This is just in the last two years.

Reform on rape and sexual violence laws and responses has been going since the seventies. It would be quite the task to list every parliamentary inquiry, law reform commission, and government policy paper on sexual violence over the last 50 years. I’m not sure it would even be possible (I’ll let you know) but looking back at some of the work done in the 1970s tells us a lot about how much has changed – and how much has not.

What were people saying 50 years ago?

In 1977, then journalist Malcom Turnbull wrote a short article for The Bulletin, called Remedying the rape law flaws. It summarised the need for and likely approach to reforming rape law in NSW. He finished the article with a jocular little reassurance to the largely male readership of The Bulletin that a feminist army was not about to land their broomsticks in Australia’s town squares and start setting up tiny, groin-height guillotines. “Many men,” he wrote, “would be concerned that a change in the law would make them vulnerable to charges of this sort that are as difficult to deny as they are to prove. Perhaps would-be Lotharios could carry special release forms that their ladies of the moment could sign to ensure that no questions of non-consent would arise”.

This is not a gotcha moment for our beloved not-as-bad-as-what-came-after-him former Prime Minister. By the standard of the time, his article was not just informative it was actually quite progressive in its inclusion of extensive quotes from celebrated feminist lawyer, author and reformer, Dr Jocelynne Scutt.

To get a sense of how (relatively) benign Turnbull’s article was, and also, maybe, to find some hope in the reform process, it might be useful to look at another law reform report from the same period.

In 1975, the Attorney General of Victoria asked the Law Reform Commissioner in Victori to investigate and report on possible changes to procedures and rules of evidence that made rape trials such a terrible ordeal for rape victims. The Commissioner submitted the report in 1976. It was 49 pages long and included eight recommendations. Some were procedural, to do with hand up briefs and timing of trials. Another recommended abolishing the rule that permitted the defence to provide evidence that the woman who said she was raped had a “bad reputation for chastity” (in other words: someone said she’s a slut so she can’t reliably testify to her own rape). The report also recommended retaining corroboration warnings, a common law requirement that judges warn juries against convicting a man of rape on the evidence of a woman or child without corroboration - women and children were considered to be inherently untrustworthy witnesses to their own experiences of sexual violence, so no man should be sent to prison on just their word alone.

Most of the rest of the report is taken up with listing all the reasons and methods women use to lie about rape. Women lie because they can, because it’s easy, because they’re weak, vengeful, wicked, fanciful, avaricious, shameless, shameful, faithless, duplicitous or just plain crazy.

"it is precisely rape fantasies that often have such irresistible verisimilitude that even the most experienced judges are misled in trials of innocent men accused of rape by hysterical women".

- Submission to the Law Reform Commissioner by The Australian & New Zealand College of Psychiatrists, 1976

In the section of the report discussing whether rape victims could be cross examined on “sexual intercourse with other men” , the authors create several convoluted imaginary scenarios in which a vindictive and duplicitous woman fabricated a rape allegation against a simple, honest man to cover up her whorish past. These ridiculous scenarios are then cited as proof that cross examination of a rape victim’s sexual history is relevant to the trial and to her “general character and credibility” and must therefore be permitted.

“there are cases in which the cause of false allegations is that the accuser is a psychopath who obtains a malicious pleasure from what she does and is seeking the notoriety that attaches to the role of victim and star witness”

- Law Reform Commissioner, Report No 5, Rape Prosecutions, 1976

No modern law reform commission would publish a report so overtly contemptuous of women - particularly women who have been raped. Indeed, the recent Australian Law Reform Commission report on justice responses to sexual violence specifically addressed the myth that false reports of sexual violence are common, citing research that suggests the actual rate of false reports is about 5% and most of these are not malicious or deliberate.

At first glance, the stark difference in language and approach of the two reports seems to indicate there have been substantial changes to the way we view rape since the 1970s. To understand how deep those changes might go, we need to dig into the differences between attitudes, beliefs and behaviour.

Attitudes & beliefs

Beliefs are ideas we hold to be true. For example, some of my beliefs are that violence is gendered, exercise is vital for mental and physical health, human induced climate change is real, and that art is an essential form of expression humanity.

Values are deeply held beliefs that are intrinsically important to our sense of self. For example, my belief that violence is gendered is so important to me that I’ve dedicated much of my life to understanding why it happens and how we can prevent it. It’s linked to my identity as a feminist, an advocate, a writer and a researcher. This belief is woven into my core values and my sense of self. I like art and I believe it matters, but it’s not something I think about very much and it wouldn’t occur to me to list it as one of my values or part of my identity.

Attitudes are how we feel about our own and other people’s beliefs, usually expressed as positive or negative. Again, as an example, I have negative attitudes about rape myths and gender stereotypes and positive attitudes to feminism. Attitudes tend to be more dependent on external factors, such as peer pressure, media influences, perceptions about socially acceptable behaviour, etc. They often develop from beliefs and dictate behaviour, but they can be changed or moderated quite easily if they are based on beliefs rather than values. One last example: I have a positive attitude to recycling but I might be more vigilant about it if all my neighbours are recycling and will notice my recycling behaviour. If addressing climate change was one of my core values, however, my positive attitude to recycling would be much less influenced by my neighbours.

Investigating attitudes without incorporating the context of social pressures can be misleading. Take the National Community Attitudes Survey’s report that 43% of young men agree “it is common for sexual assault accusations to be used as a way of getting back at men”. Is this an attitude or do they really believe it? Do the 57% who disagree just think they should say so, despite any doubts they might have? Is it an attitude or a belief? Will it hold strong in difficult times? What would the men who say they do believe women do if they were asked to believe a woman who says she was raped by someone they know? What if she says she was raped by one of their closest freinds? Their brother? Their football captain? What if she says she was raped by actor Chris Hemsworth, AFL star Nick Daicos, or Greens leader Adam Bandt? Would their attitudes stand up against emotional or political allegiances? To be clear, I am not suggesting any of those men ever have or ever would rape someone – to the best of my knowledge none of them have done so. I’m using them as examples because they are respected and admired by many different groups of men and this creates conflicting values, beliefs and attitudes that results in behaviour that may be very different to the response someone gives in an impersonal survey.

ANROWS tried to unravel this dilemma a few years back with a detailed study of how people respond to specific allegations. They found that despite low agreement with a survey question about false reports being common, almost all the participants (both men and women) had a default position of suspicion and doubt about women who say they’ve been raped. Most of the discussions aligned with all the standard tropes of rape myths and very few participants disputed them.

How much has really changed?

I wish I was just cynical and embittered. It would be comforting to think the problem is me and not the system. But, as always, I go back to the evidence, and it says that despite more than 50 years of law reform and social pressure, nothing much has changed. The strategies and tactics used by defence lawyers in cross examining rape victims hasn’t moved much since the 1950s. Lawyers still regularly rely on rape myths and women’s sexual history in trials – and it works. The rate of sexual assault has increased and the conviction for sexual assault has decreased. Law reform has not made a difference to the way trials are conducted. Traumatised people, most of them women, are still traumatised again by the injustice of the justice system that treats victims like criminals and rapists like victims.

Even the modern law reform commission reports that don’t say women are a pack of duplicitous harpies implicitly recognise the persistence of this now-unspoken belief by enumerating all the structures and people in the legal system who do not believe women when they say a man has raped them.

Is change possible?

Some people will risk their lives, even choose to die rather than renounce their core values. Think Emilsen Manyoma, Thomas More and Maria Ressa. For other people, changing beliefs is possible but it would take a long time and a huge effort to convince them that something they know to be true is actually false. They have evidence – they’ve seen it and heard it in ways that, to their mind, is irrefutable. It is as real and provable as looking up at the sky to prove whether it’s day or night.

Changing your beliefs can feel threatening – with good reason. There’s not much physical risk in believing that the earth is flat (as long as you don’t want a job as a pilot or a navigator) but if your closest relationships are with other flat earthers and if you think they’ll ostracise you for disputing that belief, changing your mind puts you at risk of a lonely, isolated future. Even more so, if being a devout flat earther is one of your core values. Giving it up could mean losing your sense of self and everything you believe makes you unique and valuable. That loss of self and worth is an intangible but profound injury.

When we’re deciding whether to change our beliefs, as well as assessing all the evidence, we’re also assessing all those other intangible costs and threats. Most of these calculations happen at a subconscious level, conscious thoughts remain centred on the solidity and evidence for the belief, but if the subconscious mind decides that change is a serious threat, trying to change someone’s mind will only make them cling even more staunchly to their beliefs.

So, what do we take from all this? All the work of the last 50 years has given us a thin facade of changed attitudes to rape, but lightly scratch that surface and underneath are the same old rape myths telling everyone that women lie about rape and no good man should suffer for a mistake, a momentary lapse, a miscommunication, or the lies of a vindictive, hysterical madwoman.

If we can’t change this widespread pernicious belief, no amount of law reform or alternative justice options will matter. The belief that women are untrustworthy witnesses to their own rape will continue undermining every stage of the legal system and implanting shame in people who have been victimised by someone else’s shameful actions.

All the work of the last 50 years, which has taken so much time, pain, effort, dedication and energy from many thousands of women, was not wasted. It hasn’t worked - yet - but it has built us solid ground to stand on as we keep working.

All those 50 year old reports and books and attempts to understand rape show us how much they didn’t know in the 70s and how much we have learned since then. We’re trying to change social habits ingrained over millennia of dehumanised women and preeminent men. It’s not surprising that it takes more than five decades to change what has remained unchanged for more than five thousand years. And one thing I know for sure is that none of the women doing this work are giving up on it it now.

What do we need to do next?

We need to know more about why men (and some women) cling so tightly to their belief in rape myths. What is it about this belief that is so core to their values and identity that they can’t bear to give it up?

My theory is that both men and women need to believe that only aberrant monsters commit rape so they can safely maintain the belief that all men are good and honourable and protective. When binary genders are defined by opposites, women must therefore be bad, dishonest and weak. How can good, honourable men be the opposite sex to women if women are also good and honourable?

It’s all woven into the interaction between our beliefs about gender and our beliefs about ourselves, our place in the world, our sense of self-worth and our entitlement to being seen as a ‘good’ person.

This is still a theory. It’s backed by years of research on violence, power, gender myths, and rape myths, but I don’t (yet) have direct evidence that can prove it. Hopefully, that will come over the next few years of studying men who have committed sexual violence. If the theory holds up, we might then find a way to untangle those rape myth beliefs and separate them from men’s ability to see themselves as good and worthy people.

Imagine what a system of justice for sexual violence might look like if rape myths lost their power over all our beliefs and values. Now that would be a thing to see!

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Podcast

The Fairy Tale Princesses Will Kill Your Children podcast, loosely based on the themes in my book of the same name, is out now. You don’t need to read the book to listen to the podcast, but you can find out more about both here.

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Helplines

In an emergency, where you or someone you know is in immediate danger, call police on 000

If you want to ask for anonymous advice for yourself or someone you know, call one of the helplines listed below or talk to a trusted GP or nurse practitioner at your local medical centre.

1800RESPECT
24/7 support for people impacted by sexual assault, domestic and family violence and abuse.
Ph: 1800 737 732
www.1800respect.org.au

Sexual Assault Crisis Line
24/7 Support for victims of sexual assault
Ph: 1800 806 292
www.sacl.com.au

Full Stop Australia
24/7 National violence and abuse trauma counselling and recovery service
Ph: 1800 385 578
www.fullstop.org.au

Men’s Referral Service
24/7 Support for men who use violence and abuse.
Ph: 1300 766 491
www.ntv.org.au/get-help/

Blue Knot Foundation
Phone counselling for adult survivors of childhood trauma, their friends, family and the health care professionals who support them. Available between 9am and 5pm, every day.
Ph: 1300 657 380
www.blueknot.org.au

Lifeline
24/7 crisis support and suicide prevention services.
Ph: 13 11 14
www.lifeline.org.au

Suicide Call Back Service
24/7 suicide prevention support
Ph: 1300 659 467
www.suicidecallbackservice.org.au