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Article Excerpt
[This article examines 'reckless' rape in light of the November 2007 amendment to s 38(2) of the Crimes Act 1958 (Vic). It distinguishes three tapes of recklessness awareness that the complainant might not be consenting ('possibility recklessness'), indifference as to whether the complainant is consenting ('indifference recklessness') and failure to give any thought as to whether the complainant is consenting ('inadvertence recklessness')--and examines whether each of these is, and should be, sufficient to satisfy the fault element for rape in Victoria. In doing so, the author seeks to clarify the concept of recklessness in Victorian rape law, arguing that these types of recklessness are often inadequately distinguished. The author also expresses concern about the precise test of inadvertence recklessness adopted in Victoria and argues for explicit recognition of indifference recklessness. Finally, it is contended that possibility recklessness is more problematic than is commonly thought, although a way of alleviating the problems with this type of recklessness is suggested.]
CONTENTS I Introduction II Section 38(2) of the Crimes Act 1958 (Vic) III Inadvertence and Indifference Recklessness A Inadvertence Recklessness B Indifference Recklessness IV Possibility Recklessness V Looking beyond s 38(2) VI Conclusion
I INTRODUCTION
In recent years, there have been numerous calls to reform the fault element for rape in Victoria. Several options have been touted. Some commentators have suggested that the prosecution should have to show only that the accused did not reasonably believe that the complainant was consenting (rather than having to show that the accused was aware that the complainant was not or might not have been consenting). (1) Others have suggested that the prosecution should not have to show either of these things and that a defence should instead be created which enables the accused to avoid liability if the accused honestly and reasonably believed that the complainant was consenting. (2)
The push to change the fault element for rape in Victoria gained further momentum with the final report of the Victorian Law Reform Commission ('VLRC') on sexual offences) The VLRC recommended that the law be changed so that, to satisfy the fault element, the prosecution need show only that the accused intended to sexually penetrate the complainant. This would be supplemented by a new defence enabling the accused to avoid liability if they honestly believed that the complainant was consenting. The accused would have to satisfy an evidential burden before this defence could be considered by the jury and there would be circumstances in which the defence could not be made out (including where the accused did not take reasonable steps to ascertain whether the complainant was consenting). (4)
While the Victorian Parliament implemented most of the VLRC's other recommendations, it did not implement this recommendation. Indeed, it did not change the fault element in any of the ways mentioned above. Instead, in November 2007, it amended s 38(2) of the Crimes Act 1958 (Vic) ('the Act') by creating a new way of satisfying the fault element for rape--namely, where the accused fails to give any thought to whether the complainant is not or might not be consenting. (5) I shall argue that this is best conceived of as a type of recklessness. If this is so, Parliament responded to the calls for reform by expanding the categories of recklessness recognised in Victorian rape law.
As a result of this amendment, there are three types of recklessness that could arguably satisfy the fault element for rape in Victoria:
(1) awareness that the complainant might not be consenting ('possibility recklessness');
(2) indifference to whether the complainant is consenting ('indifference recklessness'); and
(3) failure to give any thought to whether the complainant is consenting ('inadvertence recklessness').
One might baulk at the characterisation of these three states of mind as types of 'reckless rape'. In particular, one might regard 'inadvertence recklessness' as a type of negligent rape, since the accused is being punished for the absence of a certain state of mind (that is, for failing to consider whether the complainant is consenting), rather than for the presence of a particular state of mind (such as awareness that the complainant might not be consenting). However, 'inadvertence recklessness' is best regarded as a type of reckless rape because the focus is on the presence or absence of a particular mental state, rather than on whether the accused met a standard of reasonableness imposed by the law. (6) More generally, while the word 'reckless' does not appear in the relevant provisions of the Act, 'reckless rape' is a useful label for a certain type of rape case--that is, one in which the accused was not aware that the complainant was not consenting, and yet is still liable because of the accused's state of mind at the time. This is quite different to liability being imposed for failing to meet a standard of reasonableness imposed by the law.
As Parliament has responded to the calls for reform by expanding the categories of reckless rape recognised in Victorian law, now is an opportune time to explore the topic of reckless rape. My aim in doing so is twofold. First, I seek to clarify the concept of recklessness in Victorian rape law, particularly in light of the recent amendment to s 38(2) of the Act. I argue that the three types of recklessness listed above are not always properly distinguished. For example, while inadvertence recklessness now satisfies the fault element in Victoria, it is unclear whether indifference recklessness is sufficient, precisely because Parliament did not carefully distinguish between these two states of mind. Secondly, I will assess whether--if the fault element for rape must consist of either intention or recklessness, as Parliament has effectively decided--the current law governing reckless rape is satisfactory. In other words, if there is to be no objective test in this area, should any or all of the three states of mind distinguished above be sufficient to satisfy the fault element for rape? I will argue that both indifference and inadvertence recklessness should be sufficient, although I will express some concerns about the precise test of inadvertence recklessness adopted in Victoria. I contend, however, that possibility recklessness is more problematic than is commonly thought, before suggesting a way of alleviating the problems I identify.
II SECTION 38(2) OF THE CRIMES ACT 1958 (VlC)
First, we need to consider in more detail the recent amendment to s 38(2) of the Act. Section 38(2) now states:
A person commits rape if--
(a) he or she intentionally sexually penetrates another person without that person's consent--
(i) while being aware that the person is not consenting or might not be consenting; or
(ii) while not giving any thought to whether the person is not consenting or might not be consenting; or
(b) after sexual penetration he or she does not withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting.
As a result of this change, the fault element for rape differs depending on whether the physical element is satisfied by an act of sexual penetration ('sexual penetration' cases) or by a failure to withdraw from a person who is not consenting ('failure to withdraw' cases). In sexual penetration cases, there are now three ways to satisfy the fault element:
(i) awareness that the other person is not consenting;
(ii) awareness that the other person might not be consenting; or
(iii) not giving any thought to whether the other person is not consenting or might not be consenting.
The change is represented by (iii). Previously, only (i) or (ii) was sufficient to satisfy the fault element for rape. (7) Now, the fault element will also be satisfied if the accused sexually penetrates the complainant without giving any thought as to whether the complainant is not, or might not be, consenting.
With reference to my taxonomy in Part I of the article, (i) is generally regarded as intentional, rather than reckless, rape, and so falls outside the scope of this article. By contrast, (ii) is possibility recklessness, while (iii) is a variant of inadvertence recklessness. (8) Thus, before the recent change to s 38(2), possibility recklessness was the only type of recklessness that clearly satisfied the fault element for rape in Victoria; as a result of this change, a variant of inadvertence recklessness is now also sufficient in sexual penetration cases.
By contrast, the fault element in failure to withdraw cases has not been changed. It remains the case that only (i) or (ii) is sufficient to satisfy the fault element in such cases. I consider in Part Ill(A) below why Parliament did not change the fault element in failure to withdraw cases.
The motivation behind the change to s 38(2), as explained by the Attorney-General, was 'to clearly support the communicative model of consent.' (9) While there is disagreement about the precise content of this model, the basic idea is that consent is not demonstrated by the absence of a refusal or physical resistance, but rather by the presence of verbal or non-verbal indications that one agrees to the sexual act. (10) This is reflected in the new s 37AAA(d), which requires the judge (in an appropriate case) to direct the jury that:
the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person's free agreement ...
The Attorney-General did not explain precisely how the change to s 38(2) supports the communicative model of consent. Presumably, the thought is that by requiring one to consider whether the other person is consenting before engaging in an act of sexual penetration, the new s 38(2) encourages one to communicate about whether consent exists. Showing that such communication took place is the most persuasive way of showing that one considered whether the other person was consenting.
III INADVERTENCE AND INDIFFERENCE RECKLESSNESS
As a result of the recent change to s 38(2), a variant of inadvertence recklessness now satisfies the fault element for rape in sexual penetration cases. I shall consider in Part III(B) whether indifference recklessness is also sufficient. First, however, I shall consider whether inadvertence recklessness should satisfy the fault element for rape.
A Inadvertence Recklessness
In its final report into sexual offences, the VLRC stated that '[n]o accused should be acquitted just because he has completely failed to turn his mind to the question of consent.' (11)
Similarly, in R v Kitchener, Kirby P stated:
To criminalise conscious advertence to the possibility of non-consent, but to excuse the reckless failure of the accused to give a moment's thought to that possibility, is self-evidently unacceptable.... Such a law would simply reaffirm the view that our criminal law, at crucial moments, fails to provide principled protection to the victims of unwanted sexual intercourse, most of whom are women. (12)
I agree. Inadvertence recklessness--that is, a failure to consider whether the complainant is consenting--should be treated as...
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