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Crimes Amendment (Rape) Bill 2007
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Preliminary
Clause 1 sets out the purpose of the Bill, which is to amend the Crimes
Act 1958 to further provide for--
· the offence of rape and certain other sexual offences
that require the prosecution to prove that the accused
was aware that the victim was not consenting or might
not have been consenting to a sexual act; and
· the use of jury directions on consent and on the
accused's awareness in trials relating to charges for such
offences.
Clause 2 provides that the Act will commence on 1 January 2008 if it is
not proclaimed before that date.
Jury Directions
Clause 3 substitutes section 37 of the Crimes Act 1958. Section 37(1)
provides that, where relevant to the facts in issue in a proceeding,
the judge must direct the jury on the matters set out in the new
sections 37AAA and 37AA. These sections provide for
directions in relation to two elements of rape and related
offences--namely, the complainant's lack of consent and the
accused's awareness of the absence (or possible absence) of
consent respectively.
Section 37(2) provides that the judge must not give a direction to
the jury of the kind referred to in section 37AAA and 37AA if it
is not relevant to the facts in issue in the proceeding.
561068 1 BILL LA INTRODUCTION 21/8/2007
Sections 37(2) and 37(3) respond to a finding of the Victorian
Law Reform Commission in its Final Report: Sexual Offences
Law & Procedure, that there is an inconsistency in the approach
taken by judges in directing juries in relation to matters of
consent and the accused's state of awareness where those matters
are clearly relevant to the facts in a proceeding. They seek to
ensure that such directions as are relevant to the facts in issue are
always given.
Section 37(3) provides that the judge must relate any direction
given under section 37AAA and 37AA to both the facts in issue
and the elements of the offence being tried. This section
responds to the decision of the Victorian Court of Appeal in R v
Yusuf [2005] VSCA 69 regarding the need to relate any direction
only to the facts in issue.
Clause 4 inserts new sections 37AAA and 37AA into the Crimes
Act 1958, which separate out jury directions relating to consent
and those directions which relate to the accused's awareness.
Section 37AAA sets out, for the purposes of section 37, the
directions which a judge is to give to the jury in relation to
consent, where relevant to the facts in the particular case.
This section requires that the judge direct the jury as to the
meaning of consent in section 36. Where one of the factors set
out in section 36 is raised by the evidence, the judge must give
the directions set out in sections 37AAA (a), (b) and (c), in
addition to any other relevant directions. An example of how this
is intended to operate follows.
In a case where there is evidence that the complainant was so
affected by alcohol or another drug as to be incapable of freely
agreeing at the time of the act of sexual penetration, the judge is
required to direct the jury to the effect--
· that consent means free agreement;
· that the law deems a circumstance where the
complainant was so affected by alcohol or another drug
as to be incapable of freely agreeing at the time of
sexual penetration to be a circumstance where the
complainant did not consent;
· that if the jury finds beyond reasonable doubt that the
complainant was so affected by alcohol or another drug
as to be incapable of freely agreeing at the time of
sexual penetration, the jury must find that the
complainant was not consenting; and
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· any other direction relevant to the evidence, for
example, where there is evidence of prior consensual
sexual activity, the jury is not to regard a person as
having freely agreed to a sexual act just because on an
earlier occasion the complainant freely agreed to engage
in another sexual act with that person.
In circumstances where the evidence does not raise one of the
factors set out in section 36, the judge is to direct the jury on the
meaning of consent as well as the directions in sections
37AAA(d) and (e) where relevant to the evidence in the case.
Sections 37AAA(d) and (e) replicate the current sections 37(1)(a)
and (b) of the Crimes Act 1958 respectively.
Section 37AA sets out, for the purposes of section 37, the
directions which a judge is to give to the jury in relation to an
accused person's awareness, where relevant to the facts in the
particular case. This section provides guidance to a jury about
matters to take into consideration when determining whether the
prosecution has proven beyond reasonable doubt that the accused
was aware that the complainant was not or might not have been
consenting.
The section seeks to assist the jury with the task of assessing
what, in their view, was inside the mind of the accused when
determining whether the prosecution has proven beyond a
reasonable doubt that the accused was aware that the complainant
was not or might not be consenting.
The section specifically relates to cases where evidence has been
led or an assertion made that the accused believed that the
complainant was consenting. This evidence or assertion is most
likely to arise either when police interview the accused or when
the accused is giving testimony. In these situations, the jury will
need to make an assessment of that evidence or assertion in order
to come to a conclusion about whether the prosecution has
proven this element of the offence.
Accordingly, the section gives some guidance to the jury when a
belief in consent is asserted or raised by the evidence, by
providing directions to the jury on matters relevant to
consideration of this evidence, specifically, the reasonableness of
the alleged belief in all the relevant circumstances. Such
circumstances include the accused's awareness of the existence of
one of the factors set out in section 36 of the Crimes Act 1958
and whether the accused person took any steps to ascertain
whether the complainant was consenting.
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The directions make it clear that evidence or an assertion of a
belief in consent is to be taken into account when determining
whether the prosecution has proven beyond a reasonable doubt
that the accused was aware that the complainant might not be
consenting. Evidence of, or an asserted belief in, consent, even if
accepted by the jury, is not necessarily determinative of whether
the prosecution has met this burden.
That is to say, belief in consent and awareness of the possibility
of an absence of consent are not mutually exclusive. In
circumstances where the prosecution has satisfied the jury
beyond a reasonable doubt that an accused person was aware that
the complainant might not be consenting, if the jury are equally
satisfied in relation to the other elements, then they should
convict irrespective of whether they accept the evidence or
assertion that the accused believed the complainant was
consenting.
This section is not intended to prohibit the judge from making
other relevant directions to the jury regarding the accused's
awareness where relevant to the circumstances of the case where
no evidence is led or belief in consent is asserted by the accused.
A flowchart of the elements of the offence of rape and the
required statutory directions is provided as a guide below.
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Rape Elements and Statutory Directions Flowchart
(Note: this table refers to rape; however, relevant parts of it may also be
applied mutatis mutandis to other sexual offences)
Did the accused No
FIRST sexually penetrate the
ELEMENT complainant? Not Guilty or consider
(Sexual Yes alternative verdict
penetration) under s.425(1)
Was the penetration No
intentional?
Yes
Yes
Were any of the circumstances Did the complainant
SECOND
in s.36 present? freely agree to the
ELEMENT No
sexual penetration?
(Absence of (Directions in s.37AAA(a), (b)
consent) and (c) and where relevant (d) (Directions in
and (e)) s.37AAA(a), (d) and
(e))
Yes
No
Did the accused give any
thought to whether or not the
THIRD complainant was consenting or
ELEMENT might not be consenting? No
(Accused's
non- Yes Guilty
advertence
or awareness Was the accused aware that the
of [possible] complainant was not or might not be Yes
lack of consenting?*
consent)
(Any relevant directions)
No
Not Guilty or consider
alternative verdict under
s.425(1)
*If accused asserts a belief in consent directions in s.37AA.
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Amendment to Fault Element
Clause 5 amends the offence of rape (under section 38 of the Crimes
Act 1958). Subclause (1) adds a new alternate fault element to
ensure that a person is also guilty of the offence of rape in
circumstances where that person intentionally sexually penetrates
another person whilst not turning their mind or giving any
thought to whether or not the person is consenting or might not
be consenting. Subclause (2) makes an identical amendment to
the fault element in relation to rape constituted by compelling
sexual penetration. That is to say, a person will also be guilty of
rape if he or she compels (by force or otherwise) another person
to engage in a sexual act of the kind referred to in section 38(3)
without the victim's consent while either being aware that the
victim is not or might not be consenting or alternatively not
turning their mind to the issue of consent.
Clause 6 amends the offence of compelling sexual penetration (under
section 38A of the Crimes Act 1958) to add a new alternate fault
element to provide that a person is guilty of the offence of
compelling sexual penetration if he or she compels (by force or
otherwise) another person to engage in a sexual act of the kind
referred to in section 38A(2) without the victim's consent while
either being aware that the victim is not or might not be
consenting or alternatively not turning their mind to the issue of
consent.
Clause 7 amends the offence of indecent assault (under section 39 of the
Crimes Act 1958) by adding a new alternate fault element to
ensure that a person is also guilty of the offence of indecent
assault where that person assaults another person in indecent
circumstances whilst not turning their mind or giving any thought
to whether or not the person is consenting or might not be
consenting.
Clause 8 amends the offence of incest (under section 44 of the Crimes
Act 1958) by adding a new alternate fault element to ensure that
a person is also guilty of the offence of incest where that person
compels (by force or otherwise) the victim to engage in an act of
sexual penetration whilst not turning their mind or giving any
thought to whether or not the victim is consenting or might not be
consenting.
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General
Clause 9 inserts a new section into the Crimes Act 1958 to provide
transitional provisions.
Clause 9(1) provides that an amendment made by section 3 or 4
of the Bill to the jury directions apply to any trial that
commences on or after the commencement of the Bill regardless
of when the offence to which the trial relates is alleged to have
been committed.
Clause 9(2) provides that the amendments made by section 5, 6, 7
or 8 of the Act applies only to offences alleged to have been
committed on or after the commencement of this Bill.
Clause 9(3) provides that for the purposes of section 9(1), a trial
commences on arraignment of the accused.
Clause 10 provides for the automatic repeal of this amending Bill on
1 January 2009. As suggested by the Scrutiny of Acts and
Regulations Committee, all amending Bills now contain an
automatic repeal provision, which will save the time and expense
of having to repeal amending Acts in statute law revision Bills.
The repeal of this Bill does not affect in any way the operation of
the amendments made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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