LAW1114 Lecture 10: LAW1114 (Criminal Law 1) - Topic 6 (Sexual Offences - Part 2)
TOPIC&6:&SEXUAL&OFFENCES&
The$offence$of$rape:$fault/mental$elements$
GENERALLY
Crimes Act 1958 (Vic)
Section 38: Rape
(1) A person (A) commits an offence if—
(a) A intentionally sexually penetrates another person (B); and
(b) B does not consent to the penetration; and
(c) A does not reasonably believe that B consents to the penetration.
(2) A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years
maximum).
(3) A person does not commit an offence against subsection (1) if the sexual penetration is done in the course
of a procedure carried out in good faith for medical or hygienic purposes.
INTENTION TO HAVE SEXUAL PENETRATION
•
Crimes Act 1958 (Vic)
Section 38(1)(a): A person (A) commits and offence if A intentionally sexually
penetrates another person (B)
‘A DOES NOT REASONABLY BELIEVE THAT B CONSENTS TO THE
PENETRATION’
•
Crimes Act 1958 (Vic)
Section 38(1)(b): A person (A) commits and offence if B does not consent to the
penetration
MEANING OR ‘REASONABLE BELIEF’
Crimes Act 1958 (Vic)
Section 37G: Reasonable belief
(1) For the purposes of this Subdivision, whether or not a person reasonably believes that another person is
consenting to an act depends on the circumstances.
(2) Without limiting subsection (1), the circumstances include any steps that the person has taken to find out
whether the other person consents or, in the case of an offence against section 42(1), would consent to the
act.
Crimes Act 1958 (Vic)
Section 37H: Effect of intoxication on reasonable belief
(1) In determining whether a person who is intoxicated has a reasonable belief at any time—
(a) if the intoxication is self-induced, regard must be had to the standard of a reasonable person who is
not intoxicated and who is otherwise in the same circumstances as that person at the relevant time;
and
(b) if the intoxication is not self-induced, regard must be had to the standard of a reasonable person
intoxicated to the same extent as that person and who is in the same circumstances as that person at
the relevant time.
(2) For the purposes of this section, intoxication is self-induced unless it came about—
(a) involuntarily; or
(b) because of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force;
or
(c) from the use of a drug for which a prescription is required and that was used in accordance with the
directions of the person who prescribed it; or
(d) from the use of a drug for which a prescription is not required and that was used for a purpose, and in
accordance with the dosage level, recommended by the manufacturer.
(3) However, intoxication that comes about in the circumstances referred to in subsection (2)(c) or (d) is self-
induced if the person using the drug knew, or had reason to believe, when taking the drug that it would
significantly impair the person's judgement or control.
Aubertin v The State of Western Australia
[2006] WASCA 229
• Parties: Richard Desire Aubertin (appellant); The State of Western Australian (respondant)
• Jurisdiction: District Court of Western Australia
• Material facts:
o The appellant and the complainant had narcotics and alcohol in their system
o The appellant dirty-danced with the victim, but the victim denies this
o The complainant stated that the appellant touched her groin without permission, but the appellant
denies touching her groin
o The group including the appellant and the victim returned to the appellant’s room, where the victim
and her boyfriend, R, went to bed in the appellant’s room
o The complainant awoke to the appellant performing oral sex to her and she told him to go away
o Later, the complainant was awoken again by the appellant touching her back and the side of her
breast and told him to go away again
o The appellant testified that the complainant was awake throughout both incidents and that the
cunnilingus was consensual
• Legal issue: Whether the normal objective element test for reasonable belief can be applied in the event
that someone is inebriated due to alcohol and narcotics!
• Held (findings):!Alcohol does not excuse the use of the normal objective element test!
!
B!v!R![2013]!EWCA!Crim!3!
• Parties: B (appellant); R (respondant)
• Jurisdiction: Royal justice Courts, Strand, London
• Material!facts:!
o The appellant was mentally ill, affected by paranoid schizophrenia and harbouring a number of
delusional beliefs
o After force-feeding the complainant, the appellant was insistent on having sexual intercourse with the
complainant, who was reluctantly complied, which is demonstrated through her unwillingness to go to
the bedroom
o The accused also sprayed a mixture smelling of bleach on the complainant’s private parts that causes a
burning sensation, and proceeded to have sexual intercourse with her in a rough manner
o The appellant alleged that the spray was not bleach and that he never had sexual intercourse with the
complainant unless she consented
o The appellant awoke and desired sexual intercourse again and the complainant complied under his
insistence due their difference in strength and the appellant would generally not take no for an answer
o For the two accounts, the complainant took off her nightdress herself before submitting to sexual
intercourse
o It was accepted that intercourse had taken place but it was contended that she had consented.
• Legal issue: Whether the normal objective element test for reasonable belief can be applied in the event
that someone suffers psychosis!
• Held (findings):!Psychosis does not excuse the use of the normal objective element test if it does not effect
the accused’s ability to understand that his partner was not consenting!
JURY DIRECTIONS ON THE ACCUSED’S ‘REASONABLE BELIEF’
Jury Directions Act 2015 (Vic)
Section 47: Direction on reasonable belief in consent
(1) The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on
reasonable belief in consent.
(2) In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires)
must specify one or more of the directions set out in subsection (3).
(3) For the purposes of subsection (2), the prosecution or defence counsel may request that the trial judge—
(a) direct the jury that if the jury concludes that the accused knew or believed that a circumstance
referred to in section 34C of the Crimes Act 1958 existed in relation to a person, that knowledge
or belief is enough to show that the accused did not reasonably believe that the person was
consenting to the act; or
(b) direct the jury that in determining whether the accused who was intoxicated had a reasonable belief
at any time—
(i) if the intoxication was self-induced, regard must be had to the standard of a reasonable person
who is not intoxicated and who is otherwise in the same circumstances as the accused at the
relevant time; and
(ii) if the intoxication is not self-induced, regard must be had to the standard of a reasonable person
intoxicated to the same extent as the accused and who is in the same circumstances as the
accused at the relevant time.
Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not
doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are
substantial and compelling reasons for doing so.
The$offence$of$sexual$assault$
DEFINITION OF TOUCHING
Crimes Act 1958 (Vic)
Section 37E: Touching
(1) Touching may be done—
(a) with any part of the body; or
(b) with anything else; or
(c) through anything, including anything worn by the person doing the touching or by the person
touched.
(2) For the purposes of this Subdivision, if a person (A) causes another person (B) to be touched by a third
person or an animal, A is the person doing the touching of B.
(3) Touching may be sexual due to—
(a) the area of the body that is touched or used in the touching, including (but not limited to) the genital
or anal region, the buttocks or, in the case of a female, the breasts; or
(b) the fact that the person doing the touching seeks or gets sexual gratification from the touching; or
(c) any other aspect of the touching, including the circumstances in which it is done.
SEXUAL ASSAULT
Crimes!Act!1958!(Vic)!Section 40: Sexual assault
(1) A person (A) commits an offence if—
(a) A intentionally touches another person (B); and
(b) the touching is sexual; and
(c) B does not consent to the touching; and
(d) A does not reasonably believe that B consents to the touching.
(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years
maximum).
(3) It is not a defence to a charge for an offence against subsection (1) that, at the time of the conduct
constituting the offence, A was under a mistaken but honest and reasonable belief that the touching was not
sexual.
Document Summary
Intention to have sexual penetration: crimes act 1958 (vic) section 38(1)(a): a person (a) commits and offence if a intentionally sexually penetrates another person (b) Penetration": crimes act 1958 (vic) section 38(1)(b): a person (a) commits and offence if b does not consent to the penetration. Aubertin v the state of western australia [2006] wasca 229: parties: richard desire aubertin (appellant); the state of western australian (respondant, material facts: B v r [2013] ewca crim 3: parties: b (appellant); r (respondant) It was accepted that intercourse had taken place but it was contended that she had consented. that someone suffers psychosis the accused"s ability to understand that his partner was not consenting. Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.
