- Not consenting; or
- Might not have been consenting. (Rush P & Yeo S, 2000)
Under this legislation, the accused is not guilty of rape if he honestly, but mistakenly believes that the other person was consenting even if a reasonable person would not have made the same mistake (DPP v Morgan). The proposed change in legislation, would move the standard of proof from an subjective standard (based on the beliefs of the accused at the time of the incident) to an objective standard, questioning what the beliefs of a “reasonable person” in the position of the accused, would be. This change would mean that an accused that makes an honest, but unreasonable mistake about the consent would be guilty of rape.
When considering the implementation of such a change it should be considered that there are alo difficulties in the formulation of an objective standard. For example, should the test be whether the accused’s mistaken belief in consent was reasonable for someone of the same ethnic group, social class education and mental capacity as the accused as in provocation? Should the jurors be instructed to consider what they would have done in the same situation? Or should the standard be that of the quintessential reasonable person who possesses reasonable foresight and knowledge? If the first approach is taken, the educational objective of the criminal law is lost. This element recognizes that it is particularly unjust not to take any account of the accused’s level of education, background etc. The law would run the risk of punishing people for failing to comply with standards which they could not fairly have been expected to meet.
Whatever approach is taken, difficulties arise as the Heilbron Committee report on British rape law acknowledged in 1975 “the approach to and the circumstances surrounding sexual relationships are imprecise and varied. There are many diverse situations and the boundary lines are often unclear. By the very nature of such relationships, they involve differing types of persuasion encouragement and many other imponderables.”
In this consideration, it must be noted the way in which such a change would differentiate the crime of rape from other serious offences in the criminal law. One of the strongest tenets of the criminal law is the need for Mens Rea, that is the mental intent to do the forbidden act, and an awareness of the circumstances that make that act criminal (R v Ryan). This approach to culpability has been strongly advocated by the high court, who emphasis the need to base culpability on the actual state of mind of the defendant, that is, a subjective test, as opposed to attributing a mental state to the defendant by reference to what a reasonable person in the circumstances of the defendant would have thought (objective test). Are there strong policy grounds for treating rape differently from other criminal offences?
It is true that rape can be a difficult offence to prove, especially if the accused did not make any admissions to the police and the complainant did not sustain any physical injuries. However, this is not only because the mental element in particular is difficult to prove. The basic problem is that, in the typical rape trial, the jury usually has to choose between two quite varied accounts of what took place between the accused and the complainant (R v Saragozza).
Despite the inevitable debate over the facts of the case, it is rare for the accused’s state of mind to be the major focus. Research into DPP case files for 53 accused who stood on trial in the County Court for rape in 1989 or 1990. Of these 53 accused, only 6% relied on ‘belief in consent’ as their primary line of defence, with another 9% using an actual ‘consent’ defence. It is not surprising that the mental element is rarely the main issue in rape trials, as ‘mistaken belief in consent’ is not a particularly convincing argument to run as the primary defence.
This being the case, there appear to be 2 classes of accused that stand to be more likely convicted if the prosecutions burden was to change to an objective standard:
- The accused who falsely claim that they believed that the complainant was consenting; and
- Those who genuinely but unreasonably believe that the complainant was consenting.
Clearly the first category deserve to be convicted, however there is not much evidence to suggest that the current law would be any different from the suggested amendments in terms of furthering convictions for these cretins. The second group of people who are more likely to be affected, would be people who, for reasons beyond their own control (ie intellectual disability) are unable to live up to ‘reasonable’ expectations. What exactly would this legislation seek to achieve?
The prevailing logic behind such a change in legislation would be to ease the prosecutorial burden, in the sense that they would no longer have to prove what the accused actually believed (always a difficult line of prosecution) rather they could prove, or put to the jury to infer, what the accused should have believed at the time. This is probably fuelled by the waning convictions in rape trials, with only 96 counts of rape being tried and convicted in Victoria in 1994, out of some 250 plus allegations. Victoria’s position is similar to that of other Australian states, and indeed the trend towards low conviction and reporting of sexual crimes seems to be a worldwide trend (Kaspiew R, 1995), but for the purposes of this essay, we will focus on the weaknesses and potential areas for reform in the Victorian trial procedure. I will not touch on the initial stages (ie the original report of sexual assault to the police) of the prosecution process, although there is controversy surrounding evidentiary standard required by police before they are willing to formulate initial charges.
In 1988-89, seventy (33percent) of the 210 accused committed to the Victorian County Court on rape charges entered a plea of guilty to one or more of these charges. This is well below the overall County Court guilty plea rate of 79 per cent (Brereton & Willis 1990). The low guilty plea rate for rape is one of the most striking differences between this offence and other serious criminal offences.
Clearly the low guilty plea rate for rape requires serious attention. Obviously the role of admissions is important but other issues, such as how accused persons perceive their chances of acquittal and the extent to which pleas are encouraged by the DPP also require investigation.
Obviously, no one expects that the conviction rate in rape trials, or any other trials for that matter, should be 100 per cent. Some accused who stand trial may well be genuinely innocent. Others may have committed the offence by the evidence does not establish this beyond reasonable doubt. Unless this evidentiary standard associated with protection for the accused are abandoned, it seems inevitable that guilty people will walk free. This is the price we choose to pay for minimizing the risk that people will be wrongfully convicted of serious criminal offences.
This is also reflected in the understandable concern that juries have in their reluctance to convict without evidence of injuries or admissions. Although there were some cases in which is was established beyond reasonable doubt that a rape had been committed, there have been other cases in which the decision by the jury to acquit has been surprising to say the least (Temkin J, 1987 pp12). No doubt it is possible to find examples of ‘surprising’ acquittals throughout the criminal law, but this hardly justifies doing nothing about the problem as it arises in relation to rape.
Unfortunately this is not a problem that lends itself to easy solutions. Research indicates that doing away with the accused’s right to give unsworn evidence or replacing the mental element of rape with an objective standard, would not have a significant impact on overall conviction rates – whatever the other arguments for or against these reforms (Kaspien R, 1995). Other measures, such as getting rid of juries, reversing the onus of proof or not allowing the complainants evidence to be properly tested in court are not acceptable. Such measures would be very unfair to those accused charged with rape. Also, once adopted, it would be very hard to confine these practices to a single area of criminal law.
There are however some worthwhile measures that can be taken. In it’s report the Commission proposed that the Victorian Crimes Act define ‘lack of consent’. The Crimes (Rape) Act 1991, which was largely drafted by the Commission, gave effect to this recommendation. This Act makes it absolutely clear that to prove lack of consent it is not necessary for there to be evidence that the complainant protested or physically resisted, or that she sustained physical injuries. Judges are now required to direct juries along these lines.
Another area, which needs to be examined, is the area of legitimate cross-examination. The aim, ideally should be to ensure that material is only put but before juries when it is properly relevant to the issues in the case. This is note so much a matter of legislation as of educating judges and barristers to think more critically about what is and what is not pertinent to the issues of consent, or the complainant’s credibility as a witness. It also requires a serious analysis of what are, and are not, legitimate cross-examination techniques.
In the long run, perhaps the factor, which will have the greatest impact on conviction rates in rape trials, will be changes in community attitudes (VAGD Annual Report, 1996). On this point there may be room for a note of guarded optimism. In Victoria there has recently been an outcry about the comments made by a County Court judge in sentencing a man for raping a prostitute, after the woman had indicated that she did not want to continue to have sex with him. It is understandable that many people should have been upset at the judge’s suggesting that the accused should get a lesser sentence because the victim was a prostitute. Nonetheless, it also must be kept in mind that the jury found the accused guilty. Even a few years ago, it would have been unlikely that such a case would have found its way to court, let alone resulted in a conviction.
References
Australian Bureau of Statistics 1983, Crime Victims Survey 1983, Cat. No. 4505.0, Canberra
Brereton, D & Willis J 1990, The Committal in Australia, AIDA, Carlton
Brett, Waller and Williams’s 2001 Criminal Law: Text & Cases (9th Edition) Ch 4
Kaspiew R 1995 Rape Lore: Legal Narrative and Sexual Violence Melbourne University Law Review
Mackinnon C 1983, Fieminism, Marxism, Method and the State: Towards Feminist Jurisprudence
Morgan J 1991, Rape in Medical Treatment
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Papidemitropoulos v R (1957) 98 CLR 249
R v Galliene [1964] NSWR 919
R v H (1995) 81 A Crim R 88 (Sentencing)
R v Morgan [1970] VR 337
R v Olugboja [1981] 3 WLR 585 CA Appeal petition dismissed [1981] 1 WLR 1982
R v Saragozza [1984] VR 187
Rush P & Yeo S 2000, Criminal Law Sourcebook Butterworths Australia Sydney pp 213 - 280
Schafran 1993, Maiming the Soul: Judges, Sentencing and the Myth of the Non-Violent Rapist Fordham Urban Law Journal 439, pg 443 - 447
Smart C 1989 Feminism and the Power of Law, Concluding remarks
Temkin J 1987, Rape and the Legal Process, Sweet and Maxwell, London, pp 8-16
The Real Rape Coalition 1991, No Real Justice: The Interim Report of a Confidential Phone0In on Sexual Assault, Victoria, July
Victorian Attorney General’s Department (unpublished data), Management Information Section, Courts Division
Victorian Community Council Against Violence 1991, Source Book of Victorian Sexual Assault Statistics 1987-1990, Victoria, April
Victorian Law Reform Commission 1991, Rape: Reform of Law and Procedure: Interim Report and Appendices, Report no. 42, Law Reform Commission of Victoria, Melbourne
Victorian Law Reform Commission June 1988, Sexual Offences Against People with Impaired Mental Functioning, Report No. 15 June 1988, Paras 33 - 40
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