One cannot spend over 50 years of a life being frst as a student teacher, then a teacher, a system-wide science curriculum consultant, a vice-principal, a school principal and fnally as an academic at various levels in four Australian universities, ending with an invited appointment at the prestigious G8 University of Adelaide, without some refection: time giving over to some thought to the many challenges faced in – or escaping from – my life as an adolescent who at 15 years of age had been sexually abused, sufered in-school social-class discrimination and then drafted into unskilled labouring work.

After being denied a high school education, then seemingly locked in a regional timber industry as a labourer, for me, life was hardly coming up roses. Becoming precariously positioned on the razor's edge and becoming increasingly aware that I was born on and had been living on the wrong side of the fence in a small New South Wales country town, I had some hard decisions to make, and with the help of two marvellous people, I was fortunate enough to be born twice. Particularly, now in my retirement, thinking how I might understand this and then how I might pass these experiences onto paraprofessionals, student teachers and teachers in the school education profession of subsequent generations became almost an obsession.

These memoirs were written with academics, lecturers, student-teachers and senior secondary students undertaking such courses as English Extension in mind.

The radical proposal we set out in this book is that rape should be redefned to be a sexual penetration without a reasonable belief in consent, richly understood. Crucially, this means that the consent of the victim is irrelevant to whether or not there is rape. We have argued for the claim that a sexual penetration should be seen as a prima facie legal wrong, which requires a justifcation. Only a reasonable belief of the defendant that the victim has provided rich consent can provide that justifcation. In formal legal terms, the actus reus of rape would be a sexual penetration and the mens rea would be an intention to penetrate. The reasonable belief in consent, richly understood, would be a defence for the defendant to raise, with him carrying an evidential burden of proof. The impact of this would be that in the trial, the spotlight would be on the defendant, and he must explain what justifed him to engage in the penetration.

We appreciate this appears to be a shocking proposal, but we hope to have justifed it in the previous chapters. For now, we highlight two key advantages. First, it means that at the trial, the focus is on the defendant: what he did, and the justifcation he had for acting as he did. The victim's state of mind ceases to be relevant. Second, it emphasises the responsibility of the defendant. He needs to justify and explain what he did and how he acted.

At one level, the claim that a sexual penetration is a potentially very harmful act and should only be undertaken with a careful assessment that it will not cause harm seems obvious.

A Proposal for the New Law

Bringing these thoughts together, we are in a position to set our proposed definition of rape. Remember, the current defnition, found in Section 1 of the Sexual Ofences Act 2003, states the actus reus of rape is the penile penetration of another without their consent. It places the victim's consent at the heart of the defnition of the wrong. By contrast our proposal is as follows:

Notably, under this proposal, whether V consents or not is irrelevant. Nothing beyond the penetration is required to show the act is a legal wrong. In a case where the victim is silent or equivocal, the wrong of rape is made out. That is because it does not need to be shown positively that there was opposition (R v. Malone [1998]). The defendant will be criminally liable for the penetration unless he can raise a defence/justifcation by demonstrating the act was justifed by his attitude towards the victim, manifested by a reasonable belief in consent, understood as a rich expression of autonomy (see Chapter 4, Section ‘The Concept of Rich Consent’).

This formulation refects our claim that a sexual penetration is a prima facie legal wrong. That a penile penetration needs to be justifed for it to be lawful. We have explained that the justifcation comes through the defendant's respect of the victim's sexual autonomy, by taking reasonable steps to ascertain whether the penetration was what she richly autonomously wanted.

A fragment from:

Mike Ketch (2024). I shoulder the departed as manuscripts in stained glass: memoirs thrown up on gothic arches. Write Under the Moon (17 June 17). Published in Medium (30 June). Retrieved 30 June 2024 from https://medium .com/write-under-the-moon/i-shoulder-the-departed-as-manuscripts-in -stained-glass-c4f67a71f2e6.

Introduction

For some years now, retired and following the passing of my soulmate, companion and boundless life spirit, my wife, my lover, Julie, for over 50 years, and then me – dreadfully alone – having moved from Tasmania, where we had gone to live in retirement, to the New South Wales Hunter Valley, with all the accompanying memories of my long life with Julie, I volunteered to run a course for the Singleton Branch of U3A on the topic of the writing of memoirs. Within days, enrolments for it had flled many-fold. It appeared that there was a healthy food of people – mostly retired folk – interested in writing their memoirs. But there were also younger people, Year 12 students undertaking High School Certifcate (HSC) English Extension course, seeking to make a specialist study of the memoir genre.

In her 2016 publication, Mary Karr captures this rising interest in the writing of our memoirs and the spirit of enquiry into an individual's past in her New York Times bestseller, The art of the memoir, with this paragraph from the frst page of her opening chapter: ‘But there are always memories you dig for: you start with a clear fx on a tiny instant, and pick at every knot until a thin thread comes undone that you can follow back through the mind's labyrinth to other places.’

This reading occurred as I was attempting to make sense out of my troubled childhood and an adolescence, which, in its cultural sense, had been denied me.

February 2024: Hamilton South, Newcastle, New South Wales

I stared into his face as I had done many times before over the past decades. Now, our conversation was reaching into our recent research: his conducted under the auspices of the University of Newcastle – he an emeritus professor and me an adjunct, senior research fellow at Charles Sturt University, folks who just don't know when to call it all a day and hang up their research notes. In the status-conscious realm of academia, there was a world of diference between the roles of emeritus professor and an adjunct senior research fellow […] but maybe in that regard with John and me there always had been, at least back to sometime late in 1960 when I frst met him during a time in my life that now seems like that it all occurred in another world.

Long an octogenarian, his face was a topographical map of the Snowy Mountains, his ears and nose bearing the hallmarks of having been selfessly and unsparingly committed to too many rugby scrums. His blue eyes sparkled and marked his Scandinavian ancestry, his hair once wavy and thick, now greying and thinning. With his goatee beard and his practised professorial mannerisms, he was an archetypal emeritus professor. He maintained an Orson Welles-type appearance and sense of the dramatic, complementing his professorial mannerisms and voice.

In this chapter, we will consider some of the potential concerns that people may have with our proposal. To recap, our proposal is to redefne rape so that it has two elements:

• 1. D has sexually penetrated V.

• 2. D did not reasonably believe that V consented to the penetration.

It will also be recalled that we understand consent in the above formulation to refer to what we have called rich consent: a full expression of V's autonomy. We have sought to justify this proposal above, we now turn to potential objections.

Symbolic Paternalism

A major concern may be that the proposal is expressing paternalism towards the victim. This objection may be expressed in this way. Our proposal is saying to the victim ‘your consent is irrelevant to us’. It is, in other words, yet another example of women being silenced.

We reject this claim for two reasons. The frst is that the current law, while purporting to pay attention to women's voices by focusing on the consent of the victim, in fact does the opposite. As described above (Chapter 3, Section ‘Cross-Examination’), a range of rape myths; misleading forms of cross-examination; and assumptions about the ‘ideal victim’ mean that the voice of the woman is distorted in the current law's focus on whether or not the victim consented. That is hardly respectful of her autonomy.

The purpose of this exegesis has been to demonstrate the veracity of my following memoirs in respect to the stated major theme of personal struggle and the four related subthemes:

• • social class and government-provided school education;

• • the efect of adolescent sexual abuse on an individual's life chances;

• • the lifelong disadvantages and benefts of correspondence/distance education; and

• • untangling the insidious long tentacles of racism.

Veracity in the choice of these subthemes has been established through the connection of this major theme and the four related themes by reference to other literary forms such as novels and to the fndings of research literature, additionally what authors of memoirist advice literature are advocating.

First, however, this exegesis sought to uncover the diferences between memoirs and autobiographies, the former being a vignette of an individual's life – at the same time, about something much bigger than information about oneself. Hence, in the case of the author's memoirs preceding this exegesis is the aptness of the genre in explicating the aforementioned major theme and its four subthemes.

This exegesis then revealed the multiple number – and growing – of sub-genres of the memoir genre, not least is the coming-of-age memoir, which has a special appeal for education undergraduates, postgraduates and teachers participating in professional development programmes.

Signifcantly, inter alia, this exegesis has revealed further multiple reasons why we might write our memoirs. Little wonder that the genre has become so popular, least of all in a pedagogical setting for both school and college students as well as their teachers.

My favourite opening and closing scenes in cricket fction both come from

A. G. Macdonell's England, Their England (1933). A motley team of metropolitan writers, publishers and ring-ins, based on an actual team of the period, ‘The Invalids’, are playing away in the fctional Kent village of Fordenden. Macdonell sets the scene with afectionately satiric exaggeration. It is a perfect summer's afternoon.

While leading my brother with her other hand, I swear I can remember my mother carrying me from our house at 90 Dart Street to Oberon's main street – Oberon Street – to witness the end of the Pacifc phase of World War II – V-J Day. She carried me and led by hand my brother, Ray, 15 months older than me, along what's now known as Tally's Lane to Oberon Street and the celebrations. But memories can be feeting and deceptive things, so I can't be sure. Still, the memories of that day seem to have been with me as long as I can remember.

I had been born on 24 April 1944 in Nurse Fox's Nursing Home in North Street, a building which continues to stand. Large numbers of Oberonites continue to identify themselves as Nurse Fox's children, including the renowned Tasmanian-based environmental activist, Dr Bob Brown, of whom these pages will later tell more.

Now, with these V-J Day celebrations marking the end of some of the darkest years of Australian history, these momentous times were taking place on 3 or 4 September 1945, with the Pacifc Phase of the war ending on 2 September. Of course, I only would have been 16 months old, and consequently I may only be recalling something my mother had described to me. Memories are such unstable things. But I strongly believe I can remember seeing the lavish displays of the multi-coloured bunting on the few electric light poles then standing in Oberon Street. Still, they are the quirks and vagaries of memories.