The Background and Structure of the NSW Sexual Offences
The Physical Element of Sexual Assault
The Fault Element for Sexual Assault
This section of the unit will examine the law governing sexual assault in NSW and related sexual offences. The principal themes to be explored include: the impact of feminist initiated reforms (redefining rape as sexual assault); whether the definition of consent or non-consent adequately protects sexual autonomy; to what extent dangerous sex myths are entrenched in the present law relating to mens rea (ie that no means yes; women enjoy pain etc).
The offence of rape under the common law has undergone many reforms in the last decade. In New South Wales, there were substantial reforms of rape law and procedure first in 1981 and more recently in 1989: BFW 850. In NSW and the ACT, the common law offence of rape was abolished and replaced with a number of statutory offences. In both jurisdictions, crimes of sexual assault were created. The remodelling of rape as sexual assault was intended to reflect the violent rather than the sexual nature of the offence. Viewing rape as an act of violence, rather than a sexual act, followed the approach advocated by the early feminist scholarship of Susan Brownmiller in her book Against Our Will: Men, Women and Rape (1974).
In 1981 the New South Wales Parliament enacted wide-ranging reform of the law governing rape. The new offence of sexual assault was graded into four degrees, reflecting the level of violence used by the perpetrator. Sexual assault in the first degree was the most serious three sexual assault offences. (In the ACT, a new regime for rape law was created in 1985. The ACT reforms are similar, but not identical, to the reforms adopted in NSW in 1981; sexual assault is graded into three degrees.)
The early reforms in 1981 were not a success. It has been suggested that dividing in sexual assault offences into "degrees", with its emphasis on violence, could be counter-productive for two reasons. First, out of the same incident, the prosecution can charge the defendant with two offences: sexual assault and sexual intercourse with consent. The practice of charging both offences has the effect of prolonging the length of rape trials. Rape trials are already traumatic because women who are called as prosecution witnesses are commonly subjected to extensive, demeaning cross-examination by the defendant's counsel. This type of reform is counter-productive for another reason. Making violent sexual assault the more serious sexual offence has the effect of downgrading the perceived seriousness of rapes which do not occur with violence.
The offence which covers rape is contained in s. 61I, sexual intercourse without consent. There are also crimes of aggravated sexual assault: see s 61J and assault with intent to have sexual intercourse in 61K Section 61J identifies the circumstances of aggravation which include use of force or where the accused in the company of others etc s 61J(2)(a)-(g). There is also an offence of procuring carnal knowledge by fraud: s66, which is restricted only to acts of consensual sexual penetration which have been obtained by false pretences. The section overlaps with s 61I.
Section 61I contains the actus reus for sexual assault. The actus reus of the offence is engaging in sexual intercourse with another without the consent of the other person. The early common law defined rape extremely narrowly. In the 18th Century, Sir Matthew Hale, the leading authority on the criminal law, defined rape as follows: rape is carnal knowledge of a woman against her will. This definition required physical resistance on the part of the woman. Also the common law offence of rape was gender specific, requiring sexual penetration of a woman by a man. The definition therefore excluded the possibility of homosexual rape.
By contrast to the common law, Section 61H has adopted a broader definition of sexual intercourse. Section 61H defines sexual intercourse in 5 paragraphs (a)-(d).
61H. (1) For the purposes of sections 61H 66F, "sexual intercourse" means:
(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
(i) any part of the body of another person; or
(ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes; or
(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person; or
(c) cunnilingus; or
(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
Paragraph (a) contains a broad definition of penetration covering both vaginal penetration of a female or anal penetration. Note that the definition was amended to cover sexual penetration of a surgically constructed vagina, although the section may not achieve this purpose because a transsexual may not be a female person in law: see A Sharpe, "Attempting the Impossible: The Case of Transsexual Rape" (1997) 21(1) CrimLJ 23. Gynaecological examination for a proper medical purpose is excluded from the definition: see Mobilio (1991) below. Paragraph (a) also extends sexual intercourse to penetration with an object. Paragraphs (b) and (c) cover oral sex.
In the early common law, the offence of rape did not extend to the marital relationship: BFW 860. Thus, a husband could never be charged or convicted of raping his wife. The husband's defence is called the marital rape immunity. The origins of this immunity can be traced to the writings of Matthew Hale. In his textbook, Pleas of the Crown (published after his death in 1736), Hale said that a husband could not be guilty of committing rape upon his wife. The reason was that by "mutual matrimonial consent the wife hath given up herself in this kind unto her husband which she cannot retract". Hale did not cite any authority for this proposition. Nevertheless Hale's view of the common law was accepted and followed. In the 20th Century, the courts narrowed the scope of the immunity at common law. The immunity did not apply where the husband and wife were no longer living together but only where the separation was pursuant to a court order.
There is no basis, either in authority or policy, for maintaining a distinction between marital and non-marital rape. Rape by a spouse is as serious, if not more serious, than rape by a stranger. The common law is discriminatory because it provides no protection for women against violent and abusive spouses. The reasons for abolition are overwhelming. Indeed every jurisdiction in Australia has abolished the common law immunity by statute. In NSW, this has been achieved by s. 61T.
In 1991 in England, the House of Lords considered the scope of the common law marital rape immunity in R v R [1991] 3 WLR 767. The case attracted a lot of publicity in the press. The defendant had violently raped his wife. At the time of the rape she had separated from him and was living with her parents. He broke into the parents' home, assaulted and raped her in front of their children. The defendant was convicted and appealed. The House of Lords affirmed the conviction, and refused to apply the immunity. The Lords concluded that the immunity was a common law fiction which had become anachronistic and offensive. The law is capable of evolving and the immunity does not reflect the changed status of women or the modern notion of marital responsibilities.
The Lords' decision to abolish the marital rape immunity is clearly welcomed. However, there have been some concerns about the process in which the immunity was abolished. Some academics have criticised the decision, accusing the Lords of coming perilously close to creating a new offence of marital rape which previously did not exist. Also the decision has retrospective effect. Theoretically, any act of marital rape occurring before the date of the judgment can now be prosecuted. There is no statute of limitations for criminal matters. Another criticism is that the Lords' subverted the law reform process. The Law Commission had recommended that Parliament should abolish the immunity. These ideas are explored in an article by M Giles, "Judicial Law Making in the Criminal Courts: The Case of Marital Rape" (1991) Crim.L.R. 407.
While the fate of marital immunity was being decided in England, the High Court was considering the same issue in Australia. Although the immunity had been abolished by statute in every Australian jurisdiction, the precise status of the immunity, as part of the common law of Australia, was raised in R v L (1991), BFW at 860. The defendant was charged and convicted with raping his wife. In South Australia the immunity had been abolished by statute. The defendant argued that the South Australia provision conflicted with a provision of the Commonwealth Family Law. The Commonwealth provision allowed the Family Court to make an order relieving a party to a marriage from rendering conjugal rights. When the Family Law Act was enacted, conjugal rights included the right, under the criminal law, to have marital intercourse without consent. The defendant argued that there was an inconsistency between State and Commonwealth provisions. Section 109 of the Constitution stated that in event of a conflict between State and Commonwealth law, the State law is invalid. The High Court rejected the appeal on a number of grounds, including that there was no inconsistency between the provisions. Nevertheless the High Court took the opportunity to review the basis on the immunity. The High Court unanimously rejected the existence of the rule, see also BWW at 95-96.
A central ingredient of the actus reus of sexual assault is the other person's lack of consent. The early common law focused on overcoming the will of the victim. In the 19th century, the common law broadened the law, focusing on lack of consent. Section 61R defines the prohibited conduct as simply sexual intercourse "without consent". The meaning of consent is both a question of fact and law. There is some English authority rejecting the idea that consent is a legal issue. In Olugboja [1982] Q.B. 320, the English Court of Appeal viewed consent simply as a question of fact for the jury. This is the ordinary meaning approach to consent. The jury should be left to determine on the facts of each case whether the woman had truly consented. However, this approach is misleading because under the present law consent is not a matter which is left entirely to the jury without guidance. Complex legal rules have been developed to identify those circumstances where the victim's apparent consent to intercourse is negated. For a defence of the rule in Olugboja see S Gardiner, "Appreciating Olugboja" (1996) 16(3) Legal Studies 275.
Lack of consent in the legal definition of rape sustains the focus in the accused's trial on the victim. In every rape trial the prosecution must prove, as an ingredient of the offence, that intercourse occurred without the victim's consent. Consequently, the victim's state of mind before and during intercourse with the accused will always be relevant, not only in those cases where the issue of consent has been raised by the defence. The focus of the legal process on the victim and her state of mind undoubtedly adds to the trauma of rape and contributes to the difficulty in obtaining a conviction for rape in the present law. For a proposal to redefine rape without reference to lack of consent see Bronitt, "Rape and Lack of Consent" (1992) 16(5) CrimLJ 289.
The courts developed rules governing the vitiation of consent, and these rules have been further extended by statute. In NSW, s 61R provides guidance on the meaning of consent and identifies the circumstances in which consent is negated. In the ACT, see s 92P. The early common law was reluctant to recognise that fraud would vitiate consent. Stephen's Digest of the Criminal Law (1883) considered that "where consent is obtained by fraud the act does not amount to rape" at p. 185. One particular problem that arose in the 19th Century was the problem of impersonation by fraud. The English authorities were ambivalent whether it would be rape to have sexual intercourse by impersonating a woman's husband. The uncertainty was resolved by the Criminal Law Amendment Act 1885 (UK) which enacted that intercourse in such circumstances would be "deemed" to be rape. The problem of spousal impersonation would be covered in NSW by s 61R(2)(a)(i).
Under the common law, the effect of fraud on consent was unclear until Clarence (1888) 22 QBD 23 settled the issue. The defendant had intercourse with his wife, failing to disclose to her that he was infected with gonorrhoea. He was convicted of inflicting grievous bodily harm and assault occasioning actual bodily harm. The defendant raised her consent as a defence. The Court of Crown Cases Reserved established that only certain types of fraudulent behaviour vitiate consent. Stephen J. recognised that the principle "that fraud vitiates consent in criminal matters" required qualification. Stephen was concerned that an unqualified principle that fraud vitiates consent would make many acts of seduction and adultery rape. Having reviewed earlier authorities, Stephen J. concluded that consent would only be vitiated where the fraud related to "the nature of the act itself, or as to the identity of the person who does the act". In this case, the husband could not be guilty of assault, and by implication rape, since the wife's consent was "as full and conscious as consent could be. It was not obtained by any fraud either as to the nature of the act or the identity of the agent." This decision has implications for the use of the law of assault and rape against individuals who spread life-threatening diseases like HIV.
Although Clarence dealt with vitiation of consent in the context of assault, it is clear that the principles apply equally to rape and sexual assault. In Australia, Clarence has been applied in the context of rape by the High Court in Papadimitropoulos, (1957) 98 CLR 249, BFW 878. In Papadimitropoulos, the defendant fraudulently represented to a young Greek woman recently arrived in Australia that she had gone through a marriage ceremony with him. This was not true. The defendant had simply given notice of his intention to marry at the Melbourne Registry Office. There was some evidence that the young woman never intended to consent to intercourse outside marriage. The High Court in Papadimitropoulos traced the historical development of the principles governing vitiation of consent. The High Court emphasised that it was the victim's mistake as to the nature and character of the act or identity of the accused (rather than the accused's fraud) which would vitiate consent, BFW 878. This is a significant shift in the law. The present common law focuses on the victim's state of mind, rather than the defendant's conduct. This approach to consent is open to criticism. Papadimitropoulos focuses the legal process on the victim's perceptions; what type of mistaken belief she held (whether it related to the nature of the act or the identity of the other party) and how she came to hold it. This approach focuses the investigation and the trial upon the victim and her state of belief, rather than the defendant's conduct.
On the facts of Papadimitropoulos the question is whether the mistake made by the young woman related to the nature of the act. Her mistake was that she believed she was consenting to marital intercourse. The High Court held that her mistake did not relate to the nature of the act. The Court rejected the approach of the Victorian Supreme Court which had attempted to extend nature of the act. As the young woman had understood the physical character of the act (that the act was an act of sexual intercourse) the defendant was therefore not guilty of rape. The High Court recognised that the defendant's fraudulent conduct, although not rape, could be punished under as another less serious criminal offence, namely, procuring sexual intercourse by fraud or false pretences. This offence exists in Victoria and NSW (s 66, Crimes Act 1900), but not in the ACT.
The approach to consent in Papadimitropoulos only requires the other person to understand what is physically happening. The person does not have to be aware of the purpose of the activity, or even its moral or social significance of the conduct. The restrictive effect given to the meaning of "nature and character of the act" is apparent in Mobilio [1991] 1 VR 339, a decision of the Victorian Court of Criminal Appeal, refer to BFW 878. The defendant was a radiographer. He had conducted a series of internal vaginal examinations upon several female patients using ultrasound transducers. These internal scans had absolutely no medical value, and were done for the defendant's own sexual gratification. He was charged and convicted of three counts of rape under the extended definition of sexual intercourse in Victoria which covers penetration with an object. The Court of Criminal Appeal considered whether the women had consented to intercourse and whether their consent had been vitiated. Applying Papadimitropoulos, the court held that to negate consent, a person's mistake must relate to the nature and character of the act or identity of the person. A mere mistake as to the man's purpose (which induces that consent) would not be sufficient. Applied to the facts of Mobilio, as each patient had understood the nature of the physical act their consent had not been vitiated. This demonstrates how narrowly the courts construe the term "nature of the act". The decision is strongly criticised by Jenny Morgan, "Rape in Medical Treatment: The Patient as Victim" (1991) 18 Melbourne University Law Review 403.
The effect of Papadimitropoulos and Mobilio have been reversed in their respective jurisdictions. In New South Wales, section 61R(2)(a)(ii) of the Crimes Act 1900 provides that a person who consents to intercourse "under a mistaken belief that the other person is married to the person" is to be taken not to consent to intercourse. In Victoria, the ruling in Mobilio was subject to almost immediate legislative amendment. Statutory provisions clarifying consent were introduced by the Crimes (Rape) Act 1991. Section 36 of the Crimes Act 1958 provides that a person does not freely agree to an act in circumstances where that person inter alia "... mistakenly believes that the act is for medical or hygienic purposes". Similar legislation was adopted in SA and NSW: see NSW s 61R(2)(a1).
The approach taken to the effect of mistake on consent in NSW and Victoria can be criticised for the following reasons. In both jurisdictions the legislature has devised piecemeal statutory modifications to the law on consent. The reforms only tackle the symptoms rather than the cause of the problem. The cause of the problem is that common law has very restrictive view of consent which only requires an appreciation of the physical character of the act. An understanding of the purpose or moral significance of the act is not required. The common law has decided that a mistake as to the purpose or significance of the act is not sufficient to vitiate consent.
Also the High Court's approach to consent produces the consequence that an awareness of a victim's mistake as to the nature of the act or the identity of the accused is rape, but other mistakes which are brought about by the deliberate use of fraud are punishable as other less serious offences. Jenny Morgan has recently remarked: "By emphasizing the mistake (made by the woman) rather than the fraud (perpetrated by the man) we have surely lowered the perceived seriousness of the offence. A mistake is a human error, something minor; fraud is a deliberate decision. There are specific statutory offences of inducing sexual intercourse by fraud or false pretences; these are not rape but some lesser offence" J Morgan, "Rape in Medical Treatment: the Patient as Victim" (1991) 18 Melbourne University Law Review 403 at p. 413.
The next category of conduct which negates consent is consent obtained through force or threats of force or terror: see s 61R(c). The courts have had little difficulty in finding that violence or threats of violence will vitiate consent. Consent to sexual intercourse obtained by putting a person in fear through violence or threats of violence cannot be a consent freely given. However, the scope of these rules under the common law is not clear. There is uncertainty over the legal dimension of fear. In particular it is unclear whether consent is negated where the force or threatened force is directed to someone other than the party who submits to intercourse. Can the force or threatened force be directed at someone other than the victim? Another unresolved issue in the common law is whether non-violent forms of coercion such as economic coercion will suffice. Would an employer's threat of dismissal from employment or other coercive action unless the person has consent negate consent?
To resolve these uncertainties legislation has been enacted in most jurisdictions to clarify the rules governing consent obtained by violence or threats. In NSW, s 61R(2)(c) covers threats and terror instilled by the accused. Note that the threats or terror can be directed against other persons (eg threats to harm a child etc).
In the Australian Capital Territory, there a several types of force or threats which negate consent, refer to s 92P, Crimes Act 1900 paras (a) to (d) and (j), see below. It covers not only the infliction (or threatened infliction) of violence or force, but extends to extortion threats, threats of public humiliation, physical or mental harassment, unlawful detention. Para (a) and (b) expressly states that the violence or threats may be directed to a third person who is present or nearby.
There is some doubt as to whether the other party's response to the threats or intimidation must be "reasonable" in the circumstance. Threats or intimidation directed at a person suffering from an unusual phobia or physical weakness can be just as effective in causing submission as the more extreme threats of violence. A young man may obtain the consent of an old woman by a threat of negligible or trivial force. The subjective approach to threats negating consent is consistent with the policy in the criminal law of "taking victims as you find them". Jocelynne Scutt has argued in favour of a purely subjective approach. In her view the question for the jury is simply whether the victim's fear destroyed his or her ability to consent:
... it would seem irrelevant that another person would not have been terrified or her reason overcome, by a threat of a similar nature. What might validly interfere with one person's ability to consent may be of no moment to another. The definition of rape is not that it is `sexual intercourse without consent of the reasonable man'
J Scutt, "Consent Versus Submission: Threats and the Element of Fear in Rape" (1977) 13 UWAL Rev 52 at 75
See also G Syrota, "Rape: When does Fraud Vitiate Consent?" (1995) 25 WAL Rev 334.
The grounds for negating consent at common law are very narrow and some feminists have argued that equitable civil law concepts like could be used to negate consent: J Scutt (above) and V Waye, "Rape and the Unconscionable Bargain" (1991) 16 CrimLJ 94. Waye proposes that unconscionability could be used to determine whether consent was freely given. Unconscionability was developed as a device to police the fairness of commercial transactions. In the civil law, unconscionability is a very broad doctrine. Certainly unconscionability covers conduct that the present law recognises as vitiating the victim's consent, such as threats and fraudulent misrepresentations. Waye envisages that unconscionability vitiating consent might arise through fraud, emotional abuse or economic blackmail. But this list is not exhaustive of the types of unconscionability recognised in the civil law. Behaviour is unconscionable wherever one person takes an unfair advantage of another person's vulnerability. Situations may be regarded as potentially unconscionable, as in cases of undue influence, simply because of the unequal nature of the relationship. An undesirable feature of many relationships is the presence of emotional dependence and abuse. Emotional pressure or blackmail is a common method of sexual manipulation in such relationships. However, this type of unfair and manipulative behaviour has traditionally been regarded as falling outside the scope of rape. Another problem with Waye's approach is that unconscionability would be an issue of fact for the jury, a matter of ordinary experience. The difficulty with this approach to consent was considered last lecture. The jury's decision to negate consent entirely depends upon its own conception of acceptable and unacceptable behaviour or situations in sexual relationships. The jury would be called upon to fix the boundaries of the offence of rape in every case. Different juries, considering similar facts, might come to different conclusions. The degree of uncertainty as to what constitutes the offence of rape under such a proposal I believe is unacceptable. It is undesirable and impractical to use rape law to police all forms of unfairness in sexual relationships. It would be better to create a new offence to deal with intercourse in specific circumstances of unfairness, rather than extend the present scope of rape by resorting to the principle of unconscionability.
The definition of consent in the ACT is contained in s 92P of the Crimes Act 1900 (ACT).
s92P. (1) For the purposes of section 92D, paragraph 92E (3) (b), section 92J and paragraph 92K (3) (b) and without limiting the grounds upon which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused:
(a) by the infliction of violence or force on the person, or on a third person who is present or nearby;
(b) by a threat to inflict violence or force on the person, or on a third person who is present or nearby;
(c) by a threat to inflict violence or force on, or to use extortion against, the person or another person;
(d) by a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person;
(e) by the effect of intoxicating liquor, a drug or an anaesthetic;
(f) by a mistaken belief as to the identity of that other person;
(g) by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person;
(h) by the abuse by the other person of his position of authority over, or professional or other trust in relation to, the person;
(i) by the person's physical helplessness or mental incapacity to understand the nature of the act in relation to which the consent is given; or
(j) by the unlawful detention of the person.
Section 92P takes a less restrictive approach cases where the consent to intercourse is obtained by fraudulent conduct, or where consent is obtained under a mistake. The relevant paras are 92P(f) and (g) which govern both mistake as to the identity and fraud, refer to both paras. Para (f) deals with the person who consents under a mistake as to identity of that other person. This deals with the problem of impersonation, and simply reflects the common law rule. By contrast, para (g), the provision dealing with consent induced by fraudulent misrepresentations, differs from the common law rules governing fraud. Under para (g) the fraud is not restricted to the "nature of the act". Any fraud or deception which induces the other person's consent will negate consent. Would this mean that Papadimitropoulos would be guilty of rape in the ACT? The critical question is whether a misrepresentation as to a person's marital status is a misrepresentation of fact. It could be argued that a misrepresentation as to the legal status is a misrepresentation of law, and so consent is not negated. The better view is that such a misrepresentation is relates to both fact and law. The common law is clear that mixed issues of fact and law are treated as issues of fact.
Section 92P(g) is potentially far-reaching. Clearly it would punish as rape (sexual intercourse without consent) the fraudulent conduct used in Papadimitropoulos and Mobilio. It could extend the scope of the offence even further. It is theoretically possible under 92P(g) that consent to sexual intercourse would be negated where a person had falsely declared his or her love to induce the consent of another. The actus reus will be satisfied and the question of liability will turn on whether the defendant had the relevant mens rea. It is certainly possible that the ACT courts would seek to restrict the types of fraud which vitiate consent. But this would lead us to resurrecting the common law by the back door.
The ACT law in section 92P goes further than the common law, but has not extend as far as Waye's proposal for importing the concept of unconscionability into consent. Consent is vitiated consent where it was obtained by abuse of authority or because of the person's physical helplessness or mental incapacity, refer to paras (h) and (i). Abuse of authority would catch the extreme forms of sexual harassment and economic coercion. One final point, the former common law requirement that a women must offer resistance has been specifically abrogated in the ACT by s. 92P.
The mental state for rape under the common law is subjective. The common law requires the defendant to engage in sexual intercourse without consent, knowing that the other person did not consent to intercourse, or at least being reckless as to whether or not the other person was consenting. Recklessness for rape is satisfied by foresight of the possibility that the victim was not consenting. This is recklessness on the Coleman definition, foresight of the possibility of non-consent.
The offence of sexual assault in s 61I appears to require knowledge of the other person's lack of consent. However, s 61R(1), Crimes Act 1900 (NSW) provides that a person who is reckless as to whether the other person consents to intercourse "is taken to know that the other person does not consent to the sexual intercourse". As Kirby in Tolmie (1995) notes below, the term recklessness is not defined in the NSW Act.
The leading decision on the mens rea of rape under the common law of rape is the infamous House of Lords decision DPP v Morgan (1976), BFW 391, BWW 106. Mr Morgan invited three RAF friends home from the pub inviting them to have intercourse with his wife. Mr Morgan urged the friends to ignore his wife's protests or resistance, saying his wife was "kinky". Any protests were merely simulations designed to increase her sexual pleasure. The group forcibly overcame the wife's resistance and each one had intercourse without her consent. The friends were charged with rape. Mr Morgan was not charged with rape because the marital immunity was thought to apply. He was charged with aiding and abetting the others to commit rape. The trial judge directed the jury that the defendants would not be guilty of rape if they honestly believed that the woman was consenting and that belief in consent was reasonably held. The defendants appealed against the conviction.
The House of Lords reviewed the mens rea for rape. The case is complicated because of the extended review of the effect of mistake on mens rea. It is only toward the end of the judgment that Lord Hailsham identifies the mens rea of rape, BFW 395, BWW 114.
"I am content to rest my view of the instant case on the crime of rape by saying that is my opinion that the prohibited act is and always has been the intention to commit the act, or the equivalent intention of having intercourse willy nilly not caring whether the victim consents or no. A failure to prove this involves an acquittal because the intent, an essential ingredient, is lacking. It matters not why it is lacking if only it is not there, and in particular it matters not that the intention is lacking only because of a belief not based on reasonable grounds"
Later cases have explained that this means either knowledge that the woman is not consenting or being reckless. Willy nilly is not a good synonym for recklessness, as it appears to connote carelessness. Indeed, this imprecise terminology has encouraged some judges to broaden the mens rea to include culpable inadvertence: see Hemsley BFW 866, Kitchener (1993), BFW 867, and Kirby P in Tolmie (1995) 37 NSWLR 660.
In Tolmie, the defendant challenged the correctness of the trial judge's direction on the definition of recklessness, which had embraced a state of inadvertence. Kirby P relies on early authority, including the speeches in Morgan which indicate that the mens rea of rape is satisfied by "indifference" (Ld Cross); or by acting "recklessly, without caring" (Ld Edmund-Davis); or by "having intercourse willy-nilly, not caring whether the victim consents or no" (Ld Hailsham). Kirby P embraced this broader objective notion of recklessness based on inadvertence, but noted that this did not affect the absence of liability in cases where the defendant had intercourse in the positive mistaken belief that the other person consented, even where the mistake was unreasonable.
"In this sense if amounting to an inadvertent test, recklessness is limited to cases in which the accused did not consider the question of consent at all" (emphasis added)
In other words, the broader objective notion of recklessness is restricted to cases where the defendant was completely ignorant (ie inadvertent) of the possibility of the other persons non-consent. As Kirby P acknowledges such cases would be rare, referring to the example given by Carruthers J in Kitchener of inadvertence through intoxication or lack of intellect: at 669. However he accepts that "at least theoretically" such inadvertence could found recklessness in law.
It is the accused's inadvertence to the other person's autonomy which is the source of culpability:
"In the context of sexual activity the difference between someone who is put on conscious notice or who is forced by circumstances to actually consider the issue of consent of a sexual partner, is likely to be where that person is more sensitive to the other's autonomy, dignity and value. The criminal law, at least in respect of conduct as seriously invasive as sexual intercourse, should not fall more heavily on those who exhibit some attention to the rights of others which exculping those who are so insensitive to the rights of others that they do not consider their wishes in respect of sexual intercourse although they are necessarily relevant and important in the process of initiation and continuation of sexual intercourse" at 671.
And later concludes "To allow accused persons to escape conviction merely because they do not realise the significance of what they have done, where they have completely ignored the requirement of consent as a prerequisite for sexual interaction, is completely antithetical to the attainment of the goals which the criminal law properly sets for itself in this area" at 672.
There are some uncertainties about the scope of this definition.
First, the test focuses on the failure to advert to consent completely. This exempts the situation where the defendant has sexual intercourse believing in dangerous rape myths such as "no" means "yes" or that women enjoy (ie consent to) masochistic intercourse. These men do not have intercourse inadvertent of the other person's desires or consent - they merely live according to different social definition of consent and the types of female conduct which signify it.
Secondly, does the state of inadvertence to lack of consent have to be shared by the reasonable or ordinary person? Kirby P traced the emergence of objective notions of recklessness in England in Caldwell [1982] AC 341, where the courts, resorting to the "ordinary meaning" of words, have embraced as a specie of recklessness inadvertence to risks which are obvious to the reasonable or ordinary person. The problem with this conception of objective standards of reasonableness is discussed below. However, inadvertent recklessness in Tolmie avoids the worst aspect of objective standards by contextualising the ordinary person with the mental capacities of the accused. He held that the accused is taken to have the requisite mens rea referred to by the word reckless in s 61R,
"... where the accused has not considered the question of consent and a risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused's mental capacity if they had had turned their mind to it" at 672
The decision in Morgan also considered whether the defendant is guilty of rape when he mistakenly believes that the woman is consenting? The House of Lords held that a man does not have the mens rea for rape where he had sexual intercourse in the honest belief, however unreasonable, that the woman was consenting, BWW 114. So a mistaken belief in consent, however unreasonable, is incompatible with either mental state for rape. A person cannot be reckless as to the other person's lack of consent when he or she does not realise that there is a risk that the victim is not consenting. Therefore, an acquittal must follow where the prosecution cannot establish that the defendant had acted with either mental state.
The reasoning applied by the majority has been widely criticised. Although this was a misdirection, the convictions were upheld by the House of Lords under the proviso to s. 2(1) of the Criminal Appeal Act 1968 (U.K.) there being no miscarriage of justice. In Australia, Morgan has been approved and expressly followed in Victoria, South Australia and New South Wales. In fact, the Supreme Court of South Australia had reached the identical conclusion, provoking much less controversy, several months earlier in Brown [1975] 10 S.A.S.R. 139.
Kirby P in Tolmie (1995) introduced a procedural impediment to reliance on the decision in Morgan, which is similar to those qualifications to the mistake defence enacted in Canada by statute: namely, that the defendant can only raise mistaken belief in consent if he has at least "considered and evaluated the possibility that the complainant may not be consenting": at 668. Kirby refereed to the Bronitt's Editorial, "The Direction of Rape Law in Australia: Toward a Positive Consent Standard" (1994) 18 CrimLJ 249. Combining this aspect of the decision with the broadening of recklessness to include inadvertence, the law in NSW is arguably moving toward an active rather than passive model for consent.
It is important to appreciate that Morgan does not apply in the Code States of Western Australia, Tasmania and Queensland. The courts in the Code jurisdictions have consistently resisted reading the requirement of mens rea into the Code. In interpreting rape under their respective Codes, the courts have held that the mental state for rape is satisfied simply by an intention to have sexual intercourse (which is rarely in dispute). The prosecution is not required to prove knowledge of the victim's lack of consent to intercourse or recklessness as to whether or not the victim was consenting. In the Code States, the defendant's mistaken belief in consent can be raised as a defence. However, the defence of mistake under the Code must be honest and reasonable.
The controversy surrounding Morgan stems partly from a misunderstanding as to what the case established. The House of Lords did not establish an unreasonable mistaken belief in consent is defence to rape. Rather, a mistaken belief in consent simply prevents the defendant from satisfying either of the mental states for rape. Morgan was heralded as a "Rapist's Charter" by the popular press in England. It is viewed by some academics as representing the high-water mark of subjectivism. The controversy surrounding the decision precipitated a review of the law of rape in England. In 1975, the Heilbron Committee made wide-ranging recommendations for reform of the law of rape, including a proposal that the mental state for rape should be defined by statute. However, the Heilbron Committee rejected calls for the reversal of Morgan. This was because of the central importance of basing punishment on the defendant's actual belief, rather than substituting the belief of a reasonable person. The Victorian Law Reform Commission, in its report on rape law, rejected statutory abrogation of the Morgan principle for much the same reasons.
Feminist critics of the Morgan, and there are many, have advanced convincing policy reasons why the defendant's belief in the woman's consent should also be a reasonable belief. Professor Jennifer Temkin has argued strongly in support of this approach:
"The ultimate question which arises in this area of law is whether a commitment to subjectivism should override all other considerations regardless of circumstances or social cost. It is suggested that where a woman demonstrates her lack of consent, it is no hardship for a man to enquire whether her consent is present and that as a matter of policy the law should demand that he do so." Temkin, Rape and the Legal Process (1987) at p. 84.
From a less pragmatic stand-point, Celia Wells has attacked the common law's fetish for subjectivity, proposing a framework of culpability which encompasses both subjective and objective standards: "Swatting the Subjectivist Bug" [1982] Crim.L.R. 209.
Although conceding the force of these arguments, there are some good reasons for rejecting an entirely objective approach. Rejecting subjectivism means that criminal liability is no longer determined by exclusive reference to the defendant's state of mind. The defendant would be guilty of rape, although genuinely believing in the victim's consent, because a reasonable person would have known that the victim had not consented. This objective basis for liability would make rape a crime of negligence and this might downgrade the perceived seriousness of rape. Note that Kirby P in Tolmie is careful to limit the objective standard to cases where the defendant did not advert at all to the other person's consent; ignorance may be culpable, but a positive mistaken belief may still exculpate the defendant even if unreasonable.
Applying an objective standard in the context of rape based on the "reasonable person" is also fraught with difficulty. Not all feminists have embraced the "reasonable person" as the solution to Morgan. Jocelynne Scutt doubts whether the introduction of a reasonableness test would advance the situation for women at all. She has little faith in the gender neutral "reasonable person", pointing out that "what a woman actually believes is reasonable, and what the law has traditionally regarded as reasonable are quite different": J Scutt, Women and The Law (1990) at p. 479. In the Code jurisdictions, which require the mistake to be a reasonable mistake, juries are directed to give the "reasonable person" the gender of the defendant: Daniels (1989) 1 W.A.R. 435, at 445. The question for the jury is whether a reasonable man would belief that the women is consenting. This is a slippery slope. The next question is whether the legal fiction of the "reasonable man" has the all too common macho stereotypes about female sexuality, such as that women are masochistic by nature, enjoy being hurt in sexual encounters and the infamous "No means Yes"?. Could it get any worse? It follows from the law's present commitment to multiculturalism that the legal fiction of the reasonable man could be given the ethnic and cultural background of the defendant. This approach has been taken in the law governing the defence of provocation in homicide. Giving the reasonable man the ethnic and cultural background of the defendant could mean that traditional and culturally acceptable sexist attitudes could be taken into account. For these reasons it is doubtful whether requiring the mistaken belief in consent to be reasonable would have any significant impact on either male attitudes toward female sexual autonomy or protecting a woman's right to refuse sexual intercourse.
The principal criticism of Morgan is that the decision increases the likelihood of unmeritorious acquittals. This criticism is rarely substantiated. In fact, the available evidence suggests that an acquittal on the basis of Morgan is extremely unlikely. In Victoria in 1989, the DPP conducted a study of defences raised in rape. This study is annexed to the Victorian Law Reform Commission Interim Report No 43. The study showed that the main line of defence was consent. Mistaken belief in consent was raised in a very few cases, less than 10%. Moreover, the study showed that of all the types of defence raised, belief in consent was least likely to succeed. This study convinced the Law Reform Commission that the problem in rape law lay not with mens rea, but with the meaning of consent: see Editorial, "The Direction of Rape Law in Australia: Toward a Positive Consent Standard" (1994) 18 CrimLJ 249.
The most far-reaching reforms of consent in Australia have been enacted in Victoria. In Victoria, the common law offence of rape was abolished and redefined by the Crimes (Rape) Act 1991, BWW at 87-89. This Act implemented the recommendations of the Law Reform Commission of Victoria in Rape: Reform of Law and Procedure, Report No. 43 (1991). The Commission's discussion paper and Final Report provide a useful overview of the problems with the present law.
The most significant aspect of the Victorian reforms concern the meaning of consent. Section 36 of the Crimes Act 1958 (Vic) now defines consent for the purposes of rape and other sexual offences as "free agreement". Sexual intercourse without consent is intercourse without the other person's free agreement. Section 36 (a) to (g) then contains a list of the circumstances where a person does not freely agree to an act and includes the following: where the person submits through force, fear, unlawful detention; where the person is unconscious, incapable of understanding the sexual nature of the act, mistaken about the sexual nature of the act or identity, or mistake about the medical or hygienic purpose. The list reflects the existing common law rules (and the earlier statutory modifications) governing consent.
The significance of the movement to free agreement standard of consent is reinforced by mandatory jury directions on the meaning of consent and free agreement, refer to section 37 of the Crimes Act. Section 37(a) is a significant reform because it challenges traditional social attitudes about dominance and submission. Bernadette McSherry claims that the Victorian reform reflects a "communicative" model of sexuality, rather than the penetrative/coercive model of sexuality. She describes the effect of this direction in the following terms: " ... where a woman lies back and does nothing to indicate free agreement, this is normally enough to show that she is not consenting. Physical inactivity or passive acquiescence now means non-consent rather than the opposite". McSherry has written an article on the Victorian Reforms, "Legislating to Change Social Attitudes: The Significance of Section 37(a) of the Victorian Crimes Act 1958" in Easteal (ed.), Without Consent: Confronting Adult Sexual Violence (1993, Australian Institute of Criminology) at p. 380.
This section will consider the principal remaining sexual offences in the Crimes Act 1900
Like rape, indecency offences have been divided up into categories. The offence of indecent assault is contained in s 61L. The aggravated offence is contained in s 61M. In addition this is the act of indecency offence in s 61N and 61O for the aggravated offence.
Like rape, there is a higher penalty when the offence is committed in company of others.
The offences require proof that the indecent act occurred without the consent of the other person. The mens rea of the act of indecency is either knowledge or recklessness as to whether the person is consenting.
Section 61L requires proof of an assault which is accompanied with an intent to commit an act of indecency. There were several problems with the use of assault in this context. Most significantly, the authorities establish that mere inactivity on the defendant's part could not constitute an assault. This is suggested from two earlier decisions dealing with indecent assault, discussed in BWW at 126. Although this conduct is not an assault, it would clearly falls under the offence of act of indecency under s 61N.
Two questions arise with all these offences dealing with indecency. First, what constitutes an act of indecency. Secondly, must the defendant know that the act committed is indecent. Must the defendant act with an indecent purpose? In Court [1988] 2 All ER 221, the English House of Lords considered this question. The defendant spanked a 12 year old girl 12 times across her bottom. When asked by the police why he did it, he replied "I don't know, buttock fetish". He was convicted of indecent assault and the questions on the appeal related to the meaning of indecency and whether the defendant had to have an indecent purpose or intention. Lord Ackner, with whom the majority agreed made the following points. On a charge of indecent assault the prosecution must prove (1) the accused intentionally assaulted the victim (2) that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right minded persons as indecent (3) that the accused intended to commit such an assault as is referred in (2). The appeal was dismissed. The Lords held that on these facts the assault was capable of amounting to an indecent assault. The prosecution proved that the defendant had an intention to commit an indecent assault. His explanation demonstrated that his intention was indecent. Lord Goff dissented. He took the view that intent to obtain sexual gratification should not be an element of the offence, and that proof of indecent intent is not required. He pointed out that under the majority's view, a man who forcibly undresses a woman in public just because he is a misogynist, or because he wants to embarrass her, or because he is mischievous, is not guilty of indecent assault.
The difficulty is clearly the notion of the right-minded person determining the limits of decency. Lord Ackner defined indecency as conduct which the right-minded person would consider indecent. It was for the jury to decide whether what occurred was so offensive to contemporary standards of modesty or privacy to be indecent. This means that an assault which occurs in circumstances which the right-minded person would not regard as indecent is not an indecent assault, however indecent the purpose of the offender. Indecency would essentially be a question for the jury to determine on the facts of each case.
Harkin (1989) 38 A Crim R 296 is an Australian decision concerning the meaning of indecency. The New South Wales Court of Criminal Appeal basically endorsed the approach in Court with some qualifications. The defendant was a family friend of two young girls. The girls came to stay with him during the school holidays. The defendant took the girls, who were both 11, for a drive in his car to a nearby bush track. Each girl then had a turn at steering the car whilst sitting on his lap. While one of the girls was steering, the defendant fondled her breasts and vagina. He fondled the breasts of the second girl in a similar fashion. The trial judge directed that indecency is to be determined by the ordinary standards of morality of respectable people within the community. The defendant was convicted. On appeal to the New South Wales Court of Criminal Appeal, the defence claimed that it was a misdirection to use morality as the standard to determine indecency. The court rejected this argument, it would not be a misdirection to say that indecency is to be determined by the ordinary standards of morality of respectable people within the Community. The New South Wales Court of Criminal Appeal expressly approved the definition used by Lord Ackner in Court: "whether the right minded person would consider the conduct indecent".
The second ground for appeal was that the judge had not directed that the defendant's acts were intended by him for sexual gratification. The Court held that for indecent assault the assault must have a sexual connotation. If the defendant intentionally touched the breast of the girl that is sufficient to be an assault with the necessary sexual connotation and render it indecent. The purpose or motive of the defendant is irrelevant. The intentional doing of the act (voluntary) is sufficient. However, where the sexual connotation of the alleged assault is equivocal, then in order to be an indecent assault it must be accompanied by an intention to obtain sexual gratification. The judgment then draws a distinction between acts of indecency which are unequivocal (not requiring indecent intent) and acts which are equivocal (which indecent if the defendant has an indecent intent). This is certainly a more refined approach to the question of indecency proposed by the House of Lords in Court.
The laws governing child sexual assault are also found in this division of the Crimes Act. Section 66A prohibits sexual intercourse with a young person under the age of 10. The offence is punished more severely than rape, and note that lack of consent is not an ingredient of the offence see s77. Neither does the prosecution have to prove knowledge that the person is under age. Attempting to commit this offence is a separate crime: s66B. Sexual intercourse with a child between 10-16 is an offence under s66C, as is an attempt to do so: s66D. With respect to the later two offences, mistaken belief that the child is over 16 may be raised as a defence: s77(2).