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7.3.3 - Rape and Aggravated Rape (Pre-1/1/92)

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Overview

  1. The offence of rape has changed significantly over time:
  2. The offence of rape with aggravating circumstances existed between 1 March 1981 and 31 December 1991.
  3. This topic examines the directions a judge must give when:
  4. Use Rape for offences alleged to have been committed on or after 1 January 1992.

    Elements of Rape

  5. Prior to 1992, a person committed rape if he or she:
    1. Sexually penetrated another person;
    2. Intentionally;
    3. Without that person’s consent;
    4. While being aware that the person was not consenting or might not be consenting.
  6. Judges should take care not to run these elements together when directing the jury. In particular, judges should not instruct the jury that the fourth element relates to "the guilty mind of the accused", or that the prosecution must prove that the accused "intended to commit the crime of rape in the sense that, at the time of sexual penetration, he [or she] realized that the complainant was not consenting or might not be consenting" (R v Soldo [2005] VSCA 136; R v Zilm (2006) 14 VR 11; [2006] VSCA 72 per Callaway JA).

    "Sexual Penetration"

  7. The meaning of "sexual penetration" for the purpose of this offence has been significantly modified over time.

    Offences Committed Before 1 March 1981

  8. The common law definition of "sexual penetration" applies to offences committed before 1 March 1981.
  9. At common law, "sexual penetration" only consisted of penetration of a vagina by a penis. Other forms of sexual penetration were considered to be incidents of indecent assault, rather than rape (see R v Daly [1968] VR 257; R v Hornbuckle [1945] VLR 281).
  10. This element was met when there was any penetration of the complainant’s labia by the penis (R v Lines (1844) 1 Car & K 393; Randall v R (1991) 55 SASR 447).
  11. From 5 August 1991, the Crimes Act 1958 defined vagina to include a surgically constructed vagina. It is unclear whether the common law recognised penetration of an artificially constructed sexual organ as sexual penetration (see R v Cogley [1989] VR 799; R v Harris & McGuiness (1988) 17 NSWLR 158).
  12. This element was met by penetration "to any extent". Consequently:
  13. It is not sufficient for the relevant body part to have simply been touched. It must have been penetrated to some extent (Anderson v R [2010] VSCA 108).
  14. It is unclear whether this element will be met where:

    Offences Committed 1 March 1981 - 4 August 1991

  15. From 1 March 1981 to 4 August 1991, the definition of rape was expanded to also include:
  16. This definition removed the gendered nature of the offence, which previously could only be committed by a male against a female. Under this definition:
  17. It is unclear whether the expanded definition uses the medical meaning of "vagina" (being the membranous passage or channel leading from the uterus to the vulva), or whether it should be interpreted in a manner consistent with the common law understanding of "sexual penetration" (which includes penetration of the external genitalia) (compare R v Lines (1844) 1 Car & K 393 and Holland v R (1993) 117 ALR 193. See also Randall v R (1991) 55 SASR 447 and R v AG (1997) 129 ACTR 1). [1] In cases where this is relevant, judges will need to engage in a process of statutory construction and will need to consider principles concerning the interpretation of ambiguous penal statutes and the interference with fundamental rights (see Coco v R (1994) 179 CLR 427; Bropho v State of Western Australia (1990) 171 CLR 1; Beckwith v R (1976) 135 CLR 569).
  18. As was the case at common law, under the expanded definition:
  19. The purpose of the penetration is irrelevant. It need not have been committed for the purposes of sexual gratification (R v Dunn 15/4/1992 CA NSW).

    Offences Committed 5 August 1991 – 31 December 1991

  20. From 5 August 1991 to 31 December 1991, the definition of rape was further expanded, to include:

    Directing the Jury About the Meaning of "Vagina"

  21. The common law definition of vagina (and possibly the statutory definitions: see above) includes "the external genitalia". It has been held that this phrase is not within ordinary usage and needs more explanation (R v AJS (2005) 12 VR 563; Anderson v R [2010] VSCA 108; R v MG (2010) 29 VR 305).
  22. Consequently, where penetration is in issue, the judge should explain to the jury in precise and simple terms, what would constitute penetration of the vagina, and summarise the evidence that relates to that issue (R v AJS (2005) 12 VR 563. See also Randall v R (1991) 55 SASR 447; Anderson v R [2010] VSCA 108; R v MG (2010) 29 VR 305).

    Identifying the Penetrative Act

  23. While in most cases the prosecution will be able to particularise the method of penetration (e.g., the complainant was penetrated by a penis), in some cases this will not be possible. In such cases, it will be sufficient for the prosecution to particularise the method of penetration by reference to the relevant possibilities (e.g., the complainant was penetrated by a penis, a bodily part or some other object) (R v Castles (Ruling No.1) (2007) 17 VR 329).
  24. Where alternative possible methods of penetration are left to the jury, they do not need to unanimously agree about which of those methods was used. They only need to unanimously agree that penetration took place (R v Castles (Ruling No.1) (2007) 17 VR 329).

    Lack of Consent

  25. The third element the prosecution must prove is that the complainant did not consent to sexual penetration (R v Saragozza [1984] VR 187).
  26. While the statutory definition of consent in Crimes Act 1958 s36 was introduced on 1 January 1992 by the Crimes (Rape) Act 1991, the transitional provisions for that Act state that it applies to proceedings that occur after the commencement of the legislation, regardless of when the alleged offence was committed (Crimes (Rape) Act 1991 s9).
  27. Similarly, the amendments to the statutory directions on consent and awareness of the absence of consent introduced by the Crimes (Rape) Act 2007 also operate retrospectively (Crimes Act 1958 s609).
  28. While there is an argument that s36 is incapable of applying to rape before prior to 1 January 1991, as the section is limited to offences under Subdivisions (8A) to (8D), the better view appears to be that, in light of the transitional provisions of the Crimes (Rape) Act 1991, the section does operate retrospectively and judges must direct juries on the contemporary meaning of consent, even for historical offences.
  29. For information on the meaning of consent under s36 and the statutory directions on consent, see Consent and Awareness of Non-Consent.

    Awareness of Non-Consent

  30. The fourth element the prosecution must prove is that the accused was aware that the complainant was not consenting to the sexual penetration, or realised that the complainant might not be consenting to the sexual penetration (R v Flannery & Prendergast [1969] VR 31; R v Hornbuckle [1945] VLR 281; R v Daly [1968] VR 257; R v Morgan [1976] AC 182; Banditt v R (2005) 224 CLR 262; R v Saragozza [1984] VR 187).
  31. The prosecution does not need to prove that the accused realised that the complainant probably was not consenting. It is sufficient to prove that the accused realised the complainant might not be consenting (R v Hemsley (1988) 36 A Crim R 334. See also R v Morgan [1976] AC 182; R v Daly [1968] VR 257).
  32. The reasonableness of an accused’s asserted belief in consent is relevant only to the question of whether the belief was held. The law does not treat an unreasonable belief as non-existent or irrelevant (R v Saragozza [1984] VR 187; R v Morgan [1976] AC 182).
  33. The existence of a belief in consent (whether reasonable or unreasonable) is necessarily inconsistent with an awareness that the complainant is not consenting or might not be consenting (R v Flannery & Prendergast [1969] VR 31; R v Saragozza [1984] VR 187; R v Morgan [1976] AC 182).
  34. For more information on this element, see Consent and Awareness of Non-Consent.

    Non-Advertence

  35. Some cases have suggested that this element will be satisfied, both at common law and under subsequent statutory schemes, where a person did not give any thought to whether the complainant consented (see R v Morgan [1976] AC 182; R v Tolmie (1995) 37 NSWLR 660).
  36. However, the Crimes Amendment (Rape) Act 2007 was enacted on the basis that an offence would not be committed where the accused did not advert to the issue. The transitional provisions limit the operation of the statutory fault element of non-advertence to offences committed after the commencement of the amending legislation (see Attorney-General Rob Hulls, Second Reading Speech, Crimes Amendment (Rape) Bill 2007. See also Neal v R (2011) 32 VR 454).
  37. The charges in the Charge Book reflect the latter view (i.e., that this element cannot be proven by establishing non-advertence). If this position is considered to be incorrect, the charges will need to be modified accordingly.

    Rape with Aggravating Circumstances

  38. The offence of rape with aggravating circumstances existed between 1 March 1981 and 31 December 1991.
  39. The accused can be found guilty of this offence in two ways:

    Jury Determination

  40. "Rape with aggravating circumstances" is a separate offence from "rape". If the prosecution charges the accused with the aggravated offence, the judge must direct the jury about its elements (subject to the power of the judge to direct a verdict of rape with aggravating circumstances: see below) (Crimes Act 1958 s45).
  41. The offence consists of all the elements of rape, along with an additional element that the offence was committed in one of the following aggravating circumstances:
    1. During the commission of the offence, or immediately before or after it, and at or in the vicinity of the place where the offence was committed, the offender inflicted serious personal violence on the victim or another person;
    2. The offender had an offensive weapon with him or her;
    3. During the commission of the offence, or immediately before or after it, the offender did an act which was likely to seriously and substantially degrade or humiliate the victim; or
    4. During the commission of the offence, or immediately before or after it, the offender was aided or abetted by another person who was present at, or in the vicinity of, the place where the offence was committed (Crimes Act 1958 ss45, 46).
  42. The term "offensive weapon" means an offensive weapon, firearm, imitation firearm, explosive or imitation explosive, as defined in s77 of the Act (Crimes Act 1958 ss45, 46).
  43. See Aggravated Burglary for further information concerning the meaning of "offensive weapon", as well as the requirement that the accused had the weapon "with" him or her.

    Directed Verdict

  44. Where the accused is found guilty of rape, the judge may direct that he or she is deemed to have been found guilty of rape with aggravating circumstances if the judge is satisfied that the accused has previously been convicted of one of the following offences:
  45. The power to direct a deemed verdict of rape with aggravating circumstances applies even if the accused pleaded guilty. It is not limited to a finding of guilt following a trial (R v Symons [1981] VR 297; R v Snabel, VSC, 2/12/1982).

    Rape with Mitigating Circumstances

  46. Prior to 1 March 1981, s44(2) of the Crimes Act 1958 allowed the jury on a charge of rape to return a verdict of rape with mitigating circumstances, if satisfied that the accused committed the offence, but that there were circumstances connected with the commission of the offence which mitigate the offence.
  47. It is unclear whether the repeal of this provision by the Crimes (Sexual Offences) Act 1980 removed the availability of the verdict of rape with mitigating circumstances. Where the parties raise this issue, the judge will need to consider whether this verdict is available for offences committed before 1 March 1981 and what assistance the judge should give the jury on the meaning of "mitigating circumstances". However, it may be difficult to reconcile the existence of this provision with the operation of Crimes Act 1958 ss37A and 37B. [3]
  48. This Charge Book does not provide a model direction on leaving a verdict of rape with mitigating circumstances.

    Other Relevant Statutory Provisions

    Crimes Act 1958 s61 (Delayed Complaint)

  49. Section 61 of the Crimes Act 1958 contains a number of jury warnings that are relevant to trials for sexual offences. This section applies to trials "for an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) or under any corresponding previous enactment…".
  50. As rape was an offence against s45 of the Crimes Act 1958 between 1 March 1981 and 31 December 1991, s61 applies to offences committed between those dates. See the documents in Delayed Complaint for further information.
  51. It is unclear whether s61 also applies to offences committed before 1 March 1981, as there was no "corresponding previous enactment" at that time (rape was purely a common law offence).
  52. If s61 does not apply to offences committed before 1 March 1981, then in relevant cases the judge will need to direct the jury about the effect of delayed complaint in accordance with the common law. See Effect of Delayed Complaint on Credit.

    Evidence Act 2008

  53. Judges will also need to consider the operation of the Evidence Act 2008, which applies to all hearings commenced on or after 1 January 2010 (Evidence Act 2008 Schedule 2).
  54. For information on the effect of the Evidence Act 2008, see especially:

    Crimes Act 1958 s62 (Presumption of Consent)

  55. Section 62 of the Crimes Act 1958 abolished two presumptions thought to exist at common law:
  56. This provision only applies to offences committed on or after 1 March 1981 (Crimes (Sexual Offences) Act 1980 s2).
  57. However, recent cases have questioned whether the common law actually recognised a presumption of consent within marriage. Depending on the resolution of this issue, the abolition of that presumption by s62(2) may be redundant (see R v L (1991) 174 CLR 379; R v P, GA (2010) 109 SASR 1 (special leave to appeal granted)).

 

Notes

[1] If the legislation uses the medical definition, cases in which only the external genitalia have been penetrated will need to be charged as indecent assault instead.

[2] Prior to 1 March 1981, s44(2) of the Crimes Act 1958 allowed the jury on a charge of rape to return a verdict of rape with mitigating circumstances, if satisfied that the accused committed the offence in circumstances of mitigation.

[3] By Crimes Act 1958 s606A(1), the guiding principles provisions in ss37A and 37B apply to any trial commenced after 1 December 2006, regardless of when the offence was allegedly committed.

 

Last updated: 5 March 2012

In This Section

7.3.3.1 - Charge: Rape (1/3/81 - 31/12/91)

7.3.3.2 - Charge: Rape (Pre-1/3/81)

7.3.3.3 - Checklist: Rape (Pre-1/1/92)

See Also

7.3 - Sexual Offences

7.3.1 - Consent and Consent-related Fault Element

7.3.2 - Rape (From 1/1/92)

7.3.4 - Assault with Intent to Rape (Pre-1/7/15)

7.3.5 - Sexual Assault (From 1/7/15)

7.3.6 - Indecent Assault (1/1/92 - 30/6/15)

7.3.7 - Indecent assault (Pre-1/1/92)

7.3.8 - Incest (From 1/7/17)

7.3.9 - Incest (Pre-1/7/17)

7.3.10 - Sexual penetration of a child under 12 (From 1/7/17)

7.3.11 - Sexual penetration of a child under 16 (From 1/7/17)

7.3.12 - Sexual penetration of a child under 16 (1/1/92 – 30/6/17)

7.3.13 - Sexual Penetration of a 16 or 17 Year Old Child (From 1/7/17)

7.3.14 - Sexual penetration of a 16 or 17 year old child (1/1/92 – 30/6/17)

7.3.15 - Sexual Assault of a child under 16 (From 1/7/17)

7.3.16 - Indecent Act with a Child under 16 (1/1/92 – 30/6/17)

7.3.17 - Sexual Assault of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.18 - Indecent Act with a 16 or 17 year old Child (1/12/06 – 30/6/17)

7.3.19 - Indecent act with a 16 year old child (5/8/91 – 30/11/06)

7.3.20 - Sexual Activity in the presence of a child under 16 (From 1/7/17)

7.3.21 - Sexual Activity in the presence of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.22 - Persistent sexual abuse of a child (From 1/7/17)

7.3.23 - Sexual Offences Against Children (Pre-1/1/92)

7.3.24 - Production of Child Abuse Material

7.3.25 - Distributing Child Abuse Material

7.3.26 - Production of Child Pornography

7.3.27 - Possessing Child Abuse Material

7.3.28 - Possession of Child Pornography