LAW 2599 Lecture Notes - Lecture 8: Sexual Intercourse, Cunnilingus, Fellatio
23 May 2018
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SEXUAL OFFENCES- RAPE
STEP 1: state if any other offences could be made out. Explain these will be covered later because rape is the most
serious charge and the prosecutorial principle provides that the prosecution needs to charge the most serious offence
viable on the facts.
STEP 2: outline offence
CLCA s 48(1) a person is guilty of an offence of rape if he or she engages, or continues to engage in sexual
intercourse with another person who
(a) does not consent to engaging in sexual intercourse; or
(b) has withdrawn consent to the sexual intercourse
AND the offender knows, or is recklessly indifferent to the fact that the other person does not so consent or has so
withdrawn consent
STEP 3: Prosecution to prove physical element beyond reasonable doubt
1. Conduct: engages, or continues to engage, in sexual intercourse (s 5- below) with another person who —
2. Circumstance: does not consent to engaging in sexual intercourse (s5-below) or has withdrawn consent to the
sexual intercourse
i. s 46 (2) person consents to sexual activity if they freely and voluntarily agree to it
ii. s 46 (3)(a)-(h) lists situations where consent is not considered free and voluntary (below)
STEP 4: as a full fault offence, prosecution also has to prove the FE BEYOND REASONABLE DOUBT
1. Fault element of rape requires the accused to have had the intention to do the act with knowledge of the
circumstances (lack of consent) DPP v Morgan
i. Intention to have sexual intercourse (s 5 conduct): INFERENCE FROM FACTS (D putting hands down
Vs pants whilst pulling down their own pants) still hard to prove intention to do s 5 conduct
ii. Without consent (circumstance)
• No ‘ought to have known’ D actually had to know. Failure to prove intent = acquittal.
• As a subjective fault element, knowledge has to be GENUINE NOT REASONABLE
Doesn’t matter why knowledge of consent is lacking- a mistaken albeit unreasonable belief in
consent is a valid defence to rape- even if there are reasonable grounds to believe it is lacking
HOWEVER, where the belief is so unreasonable, court may infer that it could not genuinely have
been held, meaning the FE will be established DPP v Morgan
FACT knowledge of lack of consent in the absence of a confession/ video footage- Running
away from scene indicates D knew act was wrong/ V pushing D away suggests lack of consent
2. Intended to do the act and was recklessly indifferent to the circumstances
i. s 47 a person is recklessly indifferent to the fact that another person does not consent to an act, or has
withdrawn consent to an act if they:
• are aware of the possibility that the other person might not be consenting/ has withdrawn consent to
the act, but decides to proceed regardless of that possibility; or
• are aware of the possibility that the other person might not be consenting/ has withdrawn consent to
the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent/
has in fact withdrawn consent to the act before deciding to proceed; or
• have given no thought to consent/ withdrawal of consent to the act before deciding to proceed
STEP 5: Assess the client’s liability (voluntariness/ apply facts to elements if not done above/ summarise above
discussion)
STEP 6: Maximum penalty: s 48 life imprisonment
STEP 7: Burden of proof of the statutory defence/ other defences? Burden of proof
STEP 8: alternative charges
1. Attempted rape – go to attempts notes
2. s 75 – s 56 indecent assault or s 20 assault – both of which are lesser charges, favourable to D
STEP 9: whether to plead guilty or not guilty (explain grounds), negotiate alternative with police, other action
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