The law and sexual offences against adults in Australia
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- Reporting and conviction rates
- Alternative Models of Justice
- Evidence about past sexual experiences
- Protection of counselling communications
- Outline of Offences
- Non-consent of the victim-complainant
- What the accused thought
- Incest provisions
- Tables - Sexual offense laws and procedures in Australia
What the accused thought
Prior to the reforms, rape could only be committed where the accused intended to have sexual intercourse with the knowledge that the victim-complainant was not consenting, or might not be consenting. The accused's belief about consent was therefore a crucial element of the offence. The prosecution had to prove beyond reasonable doubt that the accused knew that the victim-complainant was not consenting (the mens rea requirement).
The Australian states and territories have taken very different approaches to the law concerning the mental state of the accused person. In the following description, jurisdictions are grouped together where they share relatively similar approaches on this issue.
Australian Capital Territory
In the ACT an accused can be convicted of sexual assault in the first, second or third degree without the prosecution needing to prove that the accused knew (or realised it was possible) that the victim-complainant was not consenting. The legislation presumes that a person who has injured, assaulted or threatened someone else with the intention that they, or someone assisting them in the assault, will have sexual intercourse realises that the person they injured, assaulted or threatened was not consenting to sexual intercourse.
The offence of "sexual intercourse without consent" requires proof that the accused either knew that the victim-complainant was not consenting to sexual intercourse, or thought about consent and decided to persist with sexual intercourse whether the victim-complainant was consenting or not.26
Where the accused knows that the victim-complainant consented to sexual intercourse because of force, threats, drugs, fraud or abuse of authority, the law treats the accused as knowing that the victim-complainant was not consenting.
If an accused argues that he or she mistakenly believed that the victim-complainant consented to a sexual act, the judge must direct the jury that they may consider whether the belief was reasonable in the context.
New South Wales
In order to be found guilty of "sexual assault" in NSW, it must be proved beyond reasonable doubt that the accused knew that the other person was not consenting to sexual intercourse or was aware of the possibility that the other person was not consenting to sexual intercourse and proceeded with sexual intercourse with that awareness. An accused who did not think about whether or not the other person was consenting to sexual intercourse at all will also be guilty of sexual assault (provided the risk of non-consent would have been obvious to someone with the accused's mental capacity).27
If the accused knew the other person consented to sexual intercourse only because they were mistaken about the accused person's identity, they mistakenly believed they were married to the accused, the accused had deceived them into believing that the act was required for a medical or hygienic purpose, or they held a mistaken belief about the nature of the act that was brought about by the accused's fraud, then the law treats the accused as knowing the victim-complainant was not consenting.
In the NT, SA and VIC, a conviction for "sexual intercourse without consent" or "rape" requires the prosecution to prove that the accused intended to have sexual intercourse with the victimcomplainant knowing that they did not consent or realising that it was possible they were not consenting.
Northern Territory, South Australia and Victoria
In the NT, SA and VIC, a conviction for "sexual intercourse without consent" or "rape" requires the prosecution to prove that the accused intended to have sexual intercourse with the victim-complainant knowing that they did not consent or realising that it was possible they were not consenting.28 As a result, if there is reasonable doubt about whether the accused believed that the victim-complainant was consenting, the accused should be found "not guilty". The accused's belief in consent does not need to be reasonable in order to form a complete defence; it only needs to be honestly held.29
In the NT, where an accused has become voluntarily intoxicated through alcohol or other drugs, it is presumed that they foresaw "the natural and probable" consequences of their actions.
In SA, if the accused was intoxicated by alcohol or other drugs at the time of the alleged offence, the jury must take that intoxication into account in deciding what his or her level of awareness of consent was.30 If the accused realised the victim-complainant was not or might not be consenting, in spite of being intoxicated, they should be convicted. However, if the intoxicated accused honestly believed the victim-complainant was consenting (even though a sober person would have realised they were not), they should be acquitted.
In VIC, where the accused has given evidence that she or he believed that the victim- complainant was consenting, a judge must direct the jury to consider whether that alleged "belief was reasonable in all the relevant circumstances".31 The judge must help the jury understand this instruction by drawing connections between this statement and the specific case they are considering.
Queensland, Tasmania and Western Australia
In QLD, TAS and WA, the prosecution must prove that the accused intentionally penetrated the victim-complainant. However, there is no additional requirement for the prosecution to prove that the accused knew the victim- complainant was not consenting. If the accused argues that they believed the victim-complainant was consenting, that belief is only a defence if it was an honest and reasonable belief.
A conviction for "incest" requires proof of a smaller number of elements than a conviction for "sexual assault" or "rape", where consent is a complete defence. The requirement of proving beyond reasonable doubt that the complainant did not consent can result in lengthy cross-examination of the victim-complainant in trials for rape and sexual assault offences.
However, in TAS, a mistaken belief in consent will not be accepted as a defence if the accused was intoxicated by self-administered alcohol or other drugs and would not have made this mistake if they had been sober, or the accused was reckless about whether the victimcomplainant was consenting or not; or the accused did not take reasonable steps to find out whether or not the victim-complainant was consenting.
These provisions were brought in after review of Tasmanian law showed that the mistaken belief defence had continued to allow evidence of irrelevant matters based in victim-blaming myths that would not have been allowed in relation to other crimes. Expert advice to the review found that "a just and balanced position requires that the accused must have taken actual and reasonable steps to ascertain that the complainant was consenting" in order to have a defence (Task Force on Sexual Assault and Rape in Tasmania 1998: 31).
Attempted rape, aggravated sexual assaults
ACT, NSW and WA have specific offences of "aggravated sexual assault" which carry heavier penalties than non-consensual sexual intercourse, which does not involve aggravating factors such as additional violence, injury, or multiple perpetrators. Every jurisdiction has an offence of "attempt" which allows a charge of "attempted rape" or "attempted sexual assault". Every jurisdiction has the capacity to charge assaults or injuries in addition to non-consensual sexual intercourse as separate offences.
How does it work in practice?
The Northern Territory parliament has indicated its intention to review the law which establishes the mental state of the accused in NT law (Gray 2005). This decision appears to have been taken after a decision of the High Court 32 which placed this aspect of the law beyond doubt, finding that the prosecution must prove that the accused knew the victim-complainant was not, or might not have been consenting.
Victorian law requires the judge to instruct the jury that when deciding whether the accused believed that the victim-complainant was consenting, "it must take into account whether that belief was reasonable in all the relevant circumstances". 33 Recent evaluation has shown that this direction is given in 75 per cent of cases (VLRC 2004). However, the same evaluation found that in some cases, jury instructions imply that the victim-complainant's prior sexual activity is relevant to the accused's belief in consent, a suggestion that is inconsistent with the communicative model of the consent established by the legislation.
The Victorian Law Reform Commission has recommended changes to the mental element which would bring it closer to the Canadian model. If these changes were implemented, the prosecution would need to prove the accused intended to sexually penetrate the victim-complainant. A defence of honest belief in consent would be available. This model would be closer to the current law of QLD, TAS and WA. However, the Victorian proposals go further still. In order to use the defence, the accused would need to provide some evidence, rather than a mere assertion of honest belief in consent. A judge would not be able to place the defence of honest belief in consent before the jury unless there was sufficient evidence of a mistaken belief for it to go to the jury. No defence would be available where the accused had not taken reasonable steps to assess consent, the accused did not turn their mind to the question of consent at all, or circumstances which invalidate consent (such as force, threats or fraud) were present, and the accused was aware of them. Any intoxication of the accused would not be taken into account (VLRC 2004).
26 These are the terms of a direction the court found to be unobjectionable in Turrise v R  ACTCA 23.
27 R v Kitchener (1993) 29 NSWLR 696; R v Tolmie (1995) 37 NSWLR 660.
28 Director of Public Prosecutions (NT) v WJI  HCA 47; McMaster v R  NTSC 33; R v Brown (1975) 10 SASR 139; Wozniak and Pendry (1977) 16 SASR 67, 175: reckless indifference involves "a determination to proceed with advertence to the possibility of non-consent".
29 Although a defence of honest but mistaken belief in consent is available in the NT, it will now be of little relevance to this offence. s 32 Criminal Code Act 1983 (NT).
30 Evans (1987) 30 A Crim R 262. s 269 Criminal Law Consolidation Act 1935 (SA) establishes specific rules concerning directions on intoxication where the defendant has not specifically requested jury directions on this issue.
31 S 37 (1) (c) Crimes Act 1958 (Vic).
32 Director of Public Prosecutions (NT) v WJI  HCA 47. See also McMaster v R  NTSC 33.
33 S 37 (1) (c) Crimes Act 1958 (Vic).