Smith, Dale --- "Reckless Rape in Victoria" [2008] MelbULawRw 31; (2008) 32(3) Melbourne University Law Review 1007
[*] BA (Hons), LLB (Hons), MA (Melb), DPhil (Oxon); Senior Lecturer, Faculty of Law, Monash University. I am grateful to Colin Campbell, Jonathan Clough, Bernadette McSherry and the students in my 2008 ‘Current Problems in Criminal Law’ class (as well as the anonymous referees) for their helpful suggestions.
[1] For example, the Violence Against Women Integrated Services, the Domestic Violence Incest Resource Centre and the Department of Human Services made submissions to the Victorian Law Reform Commission’s (VLRC) recent review of sexual offences that all recommended variations on this approach: see VLRC, Sexual Offences: Final Report (2004) 420–1. This is now the position in the United Kingdom: see Sexual Offences Act 2003 (UK) c 42, s 1(1)(c).
[2] One submission (by Nola Martin) to the VLRC review of sexual offences supported this approach: see VLRC, Final Report, above n 1, 420. This has long been the position in the Code jurisdictions of Australia: see Criminal Code Act 1899 (Qld) ss 24(1), 349(2); Criminal Code Act 1924 (Tas) ss 14, 185(1); Criminal Code Act Compilation Act 1913 (WA) ss 24, 325. The Northern Territory is an exception: see DPP (NT) v WJI [2004] HCA 47; (2004) 219 CLR 43.
[3] VLRC, Final Report, above n 1.
[4] This is a very brief summary of the VLRC’s interesting and intricate proposal. For the full proposal, see ibid 421–31.
[5] Crimes Act 1958 (Vic) s 38(2)(a)(ii), as amended by Crimes Amendment (Rape) Act 2007 (Vic) s 5(1). Equivalent changes were made to other sexual offences in the Act: see below Part VI.
[6] See VLRC, Sexual Offences: Interim Report (2003) 340 fn 745.
[7] Strictly speaking, neither (i) nor (ii) was sufficient to satisfy the fault element either before or after the change since it is also necessary that the sexual penetration was intentional. I shall not discuss this aspect of the fault element, beyond noting that it is very likely to be satisfied whenever sexual penetration occurs.
[8] See below Part III(A) for an explanation of why I describe (iii) as a variant of inadvertence recklessness.
[9] Victoria, Parliamentary Debates, Legislative Assembly, 22 August 2007, 2859 (Rob Hulls, Attorney‑General).
[10] Lois Pineau, ‘Date Rape: A Feminist Analysis’ (1989) 8 Law and Philosophy 217. The communicative model is not without its critics: see, eg, ACT Law Reform Commission, Report on the Laws Relating to Sexual Assault, Report No 18 (2001) 78–9. However, I shall take as a premise of my discussion that the basic idea behind the communicative model is a sound one.
[11] VLRC, Final Report, above n 1, 411.
[12] (1993) 29 NSWLR 696, 697.
[13] A P Simester and G R Sullivan, Criminal Law: Theory and Doctrine (3rd ed, 2007) 137–8.
[14] Glanville Williams, ‘The Unresolved Problem of Recklessness’ (1988) 8 Legal Studies 74, 82–4.
[15] Ibid 89–90.
[16] It might be argued that this would further complicate the law, but arguably the existing law — with a different fault element for sexual penetration and failure to withdraw cases — gives rise to greater complications.
[17] Williams, above n 14, 84.
[18] R v Wozniak (1977) 16 SASR 67, 73 (‘Wozniak’).
[19] Both the second reading speech and the explanatory memorandum are silent on this point: see Victoria, Parliamentary Debates, above n 9, 2858 (Rob Hulls, Attorney‑General); Explanatory Memorandum, Crimes Amendment (Rape) Bill 2007 (Vic). However, we shall see in Part IV that Parliament intended to render liable an accused who believed that the complainant was consenting but who was nevertheless aware of a possibility that they were not consenting. Thus, it is entirely possible that Parliament intended to render liable an accused who, in a sexual penetration case, believed that the complainant was consenting but did not advert to the possibility that they were not consenting.
[20] Victoria, Parliamentary Debates, above n 9, 2858 (Rob Hulls, Attorney‑General) (emphasis added).
[21] R v Kitchener (1993) 29 NSWLR 696, 697.
[22] Cf R v Tolmie (1995) 37 NSWLR 660, 667–8, where Kirby P was more sensitive to the difference between inadvertence and indifference and noted that there is some uncertainty as to which state of mind satisfies the requirement of recklessness in New South Wales.
[23] R v Kitchener (1993) 29 NSWLR 696, 702, citing R v Henning (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Gleeson CJ, Campbell and Matthews JJ, 11 May 1990) [31] (Gleeson CJ, Campbell and Matthews JJ).
[24] See above n 19 and accompanying text.
[25] See Victoria, Parliamentary Debates, above n 9, 2859 (Rob Hulls, Attorney‑General).
[26] For ease of exposition, I leave to one side the possibility that it may involve awareness that the complainant is not consenting.
[27] Williams, above n 14, 83 suggests that one ‘cannot be indifferent to [a risk] of which [one is] ignorant’, and so every case of indifference recklessness is also a case of possibility recklessness. However, I characterised indifference in terms of the lack of a sufficiently strong preference that the complainant be consenting, and one can lack such a preference without being aware of the relevant risk.
[28] In NSW, it was unsuccessfully challenged in Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262 (‘Banditt’): see below Part V.
[29] Andrew Ashworth, Principles of Criminal Law (5th ed, 2006) 183.
[30] R A Duff, Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (1990) 169.
[31] Victoria, Parliamentary Debates, above n 9, 2859 (Rob Hulls, Attorney‑General). The Attorney‑General claimed that this is made clear by the new jury directions in s 37AA: see below Part V.
[32] [1975] UKHL 3; [1976] AC 182.
[33] Although in Morgan itself two of the three majority judges discussed only indifference recklessness, not possibility recklessness: ibid 202–3 (Lord Cross), 209–10, 215 (Lord Hailsham). The third, Lord Fraser, did not discuss recklessness at all.
[34] This differs from a situation in which the accused initially had some doubt as to whether the complainant was consenting, but cleared that doubt up in the process of forming the belief that the complainant was consenting. I am imagining situations in which, even after the accused formed the belief that the complainant was consenting, they remained aware of the possibility that their belief might be mistaken.
[35] Victoria, Parliamentary Debates, above n 9, 2859 (Rob Hulls, Attorney‑General).
[36] This assumes that economic and/or social pressures can negate consent. Consent is defined in s 36 of the Act as ‘free agreement’. Moreover, under s 36(b), ‘free agreement’ does not occur in circumstances where ‘the person submits because of the fear of harm of any type’.
[37] [1996] VSC 27 (Unreported, Phillips CJ, Callaway JA and Southwell AJA, 2 April 1996) [21] (Callaway JA and Southwell AJA).
[38] (1977) 16 SASR 67, 74.
[39] Again, this assumes that economic and/or social pressures can negate consent.
[40] His belief would be based, at least in part, on the process of communication the parties went through, even though that process may not be sufficient to eliminate a real risk of non‑consent.
[41] This seems to be the approach adopted by Bray CJ in Wozniak (1977) 16 SASR 67, 74. See above n 38 and accompanying text.
[42] VLRC, Final Report, above n 1, 410.
[43] At this point, the suggested approach to possibility recklessness might appear to amount to a requirement of due diligence — see R v Sault Ste Marie [1978] 2 SCR 1299, 1315 (Dickson J for Laskin CJ, Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ) (regarding strict liability offences) — or even to be a variation on the VLRC’s requirement that the accused must have taken reasonable steps to ascertain whether the complainant was consenting if they are to rely on the defence of honest belief in consent: VLRC, Final Report, above n 1, 427–9. Certainly, there are similarities. On the suggested approach, possibility recklessness will be satisfied if the accused was aware of a possibility of non‑consent that could have been confirmed or eliminated by making reasonable enquiries. This effectively places an onus on the accused to make reasonable enquiries. However, it does so only if they are aware of a possibility that the complainant is not consenting. This focus on the accused’s awareness is what makes the suggested approach a version of recklessness and also makes it importantly different from both a requirement of due diligence and from the VLRC’s requirement that the accused take reasonable steps to ascertain whether the complainant is consenting.
[44] [2005] HCA 80; (2005) 224 CLR 262.
[45] [1975] UKHL 3; [1976] AC 182, 237 (Lord Fraser).
[46] [2005] HCA 80; (2005) 224 CLR 262, 269. While inadvertence recklessness was not discussed, the joint judgment does not appear to have sought to compile an exhaustive list of formulations of the concept of recklessness.
[47] Ibid 276. By contrast, Callinan J held that the concept of recklessness should not be glossed in any way: at 297–8.
[48] Ibid 276.