LAW1114 Lecture Notes - Lecture 9: Criminal Appeal Reports, Crimes Act 1958, Sexual Penetration
TOPIC&6:&SEXUAL&OFFENCES&
Introduction*and*overview*
INTRODUCTION)
Waller & Williams [3.1]-[3.8]: Introduction
• Common law rape: Non-consensual penetration of the vagina by the penis (abolished in
Crimes (Rape)
Act
1991 s 6)
o Non-consent: Conscious refusal or where a woman was unconscious
v Fully conscious and mental capacity is not in doubt: Rape only occurs where the act of
penetration was against her will (
R v Wilkes and Briant
)
o Complete penetration and ejaculation are not necessary (
Holland v R
(1993) 67 ALJR 946)
o Means that a woman cannot be guilty of rape and a man cannot be raping another man
v A woman could be convicted as an accomplice to an act of rape being performed by a man (
R v
Ram and Ram
(1893) 17 Cox CC 609)
o A boy younger than 14 years was incapable of rape (
R v Waite
[1892] 2 QB 600)
o Spousal immunity (Hale’s
The History the Pleas of the Crown
, vol 1, p 629)
v The husband can be guilty as an accomplice to an act of rape performed upon his wife by another
(
R v Cogan and Leak
[1976] 1 QB 217;
Director of Public Prosecutions v Morgan
[1976] AC
182)
v The husband can be guilty of raping his wife where they were living apart pursuant to a court
order (
R v Clarke
[1949] 2 All ER 448
; R v Minn
[1982] VR 53)
§ The husband could not be guilty where he was merely living separately to his wife (
R v
Miller
[1954] 2 QB 282)
v Undertaking given by the husband to a court not to molest his wife was treated as equivalent to a
court order (
R v Steele
(1976) 65 Cr App R 22)
v Utilisation of force or violence to achieve intercourse enables to conviction of assault (
R v Miller
[1954] 2 QB 282;
R v Caswell
[1984] Crim LR 111)
Waller & Williams [3.9]: Common law rape proceedings
• Cross-examination of complainant’s sexual relations with other men: Justified as a means to discover the
credibility of the women and the likelihood of consent (abolished in
Criminal Procedure Act
2009 (Vic) s
343;
Criminal Procedure Act
1986 (NSW) s 293)
o Still admissible in Victoria if the evidence has ‘substantial relevance to the facts in issue’ or that is a
‘proper matter for cross-examination as to credit (
Criminal Procedure Act
2009 (Vic) ss 342,
346(2)(c);
Criminal Procedure Act
1986 (NSW) s 293)
Waller & Williams [3.10]: Reasons for law rape convictions
• Attrition of sexual assault cases at various stages of the justice system
• Treatment of complainants throughout the trial
• Distrust of complainants by the criminal justice system
• Difficulty in obtaining sufficient evidence
• Belief in sexual assault myths and stereotypes
SEXUAL PENETRATION
Crimes Act
1
958 (Vic)
Section 37D: Sexual penetration
(1) A person (A) sexually penetrates another person (B) if—
(a) A introduces (to any extent) a part of A's body or an object into B's vagina; or
(b) A introduces (to any extent) a part of A's body or an object into B's anus; or
(c) A introduces (to any extent) their penis into B's mouth; or
(d) A, having introduced a part of A's body or an object into B's vagina, continues to keep it there; or
(e) A, having introduced a part of A's body or an object into B's anus, continues to keep it there; or
(f) A, having introduced their penis into B's mouth, continues to keep it there.
(2) A person (A) also sexually penetrates another person (B) if—
(a) A causes another person to sexually penetrate B; or
(b) A causes B to take part in an act of bestiality within the meaning given by paragraph (b) or (d) of
section 59(2).
(3) A person sexually penetrates themselves if—
(a) the person introduces (to any extent) a part of their body or an object into their own vagina; or
(b) the person introduces (to any extent) a part of their body or an object into their own anus; or
(c) having introduced a part of their body or an object into their own vagina, they continue to keep it
there; or
(d) having introduced a part of their body or an object into their own anus, they continue to keep it there.
(4) A person sexually penetrates an animal if—
(a) the person introduces (to any extent) a part of their body or an object into the animal's vagina; or
(b) the person introduces (to any extent) a part of their body or an object into the animal's anus; or
(c) the person introduces (to any extent) their penis into the animal's mouth; or
(d) having introduced a part of their body or an object into the animal's vagina, the person continues to
keep it there; or
(e) having introduced a part of their body or an object into the animal's anus, the person continues to
keep it there; or
(f) having introduced their penis into the animal's mouth, the person continues to keep it there.
(5) For sexual penetration by the use of a penis, it does not matter whether or not there is emission of semen.
Note:
References to A and B are included to help readers understand the definition of sexual penetration. The same
technique is used in the offence provisions involving sexual penetration. This does not mean that A and B in
this section are the same persons as A and B in the offence provisions.
WITHOUT COMPLAINANT’S CONSENT
Crimes Act 1958 (Vic
) Section 34C: Consent
(1) For the purposes of Subdivisions (8A) to (8D), consent means free agreement.
(2) Circumstances in which a person does not consent to an act include, but are not limited to, the
following—
(a) the person submits to the act because of force or the fear of force, whether to that person or someone
else;
(b) the person submits to the act because of the fear of harm of any type, whether to that person or
someone else or an animal;
(c) the person submits to the act because the person is unlawfully detained;
(d) the person is asleep or unconscious;
(e) the person is so affected by alcohol or another drug as to be incapable of consenting to the act;
(f) the person is incapable of understanding the sexual nature of the act;
(g) the person is mistaken about the sexual nature of the act;
(h) the person is mistaken about the identity of any other person involved in the act;
(i) the person mistakenly believes that the act is for medical or hygienic purposes;
(j) if the act involves an animal, the person mistakenly believes that the act is for veterinary, agricultural
or scientific research purposes;
(k) the person does not say or do anything to indicate consent to the act;
(l) having initially given consent to the act, the person later withdraws consent to the act taking place or
continuing.
Waller & Williams [3.18.1]: ‘Consent’
Document Summary
The husband could not be guilty where he was merely living separately to his wife (r v. [1954] 2 qb 282; r v caswell [1984] crim lr 111) 343; criminal procedure act 1986 (nsw) s 293: still admissible in victoria if the evidence has substantial relevance to the facts in issue" or that is a. Proper matter for cross-examination as to credit (criminal procedure act 2009 (vic) ss 342, 346(2)(c); criminal procedure act 1986 (nsw) s 293) References to a and b are included to help readers understand the definition of sexual penetration. The same technique is used in the offence provisions involving sexual penetration. This does not mean that a and b in this section are the same persons as a and b in the offence provisions. W a lle r & w illia m s [ 3 . 1 8 . 1 ] : c o n s e n t".
