When a matter is before the courts regarding the criminal offence of rape, a central element in regards to the offence is that of consent. All legal matters before the courts are complex, however, cases involving sexual penetration without consent can be of particularly difficulty due to the nature of the offence, the effects on a complainant, as well as the evidence to be adduced. Both the common law and legislation deals with the offence of rape extensively and because the question surrounding consent can go to the heart of such matters, the law has had to define what constitutes consent.
The offence of rape
From the common law, the High Court in Papadimitropoulos v The Queen defined rape as “… carnal knowledge of a woman without her consent: carnal knowledge is the physical fact of penetration; it is the consent to that which is in question; such a consent demands a perception as to what is about to take place; as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape.”
In order for an offence of rape to have been committed there must be penetration, and before the laws were amended penetration was only viewed as penile penetration of the vagina. Now sexual penetration without consent can involve penetrating a vulva, vagina, anus or mouth.
All jurisdictions have laws regarding rape, and we can look towards s 38 of Victoria’s Crimes Act as a legislative example as to the elements which constitute the offence:
“(1) A person must not commit rape.
Penalty: Level 2 imprisonment (25 years maximum).
(2) 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.
(3) A person (the offender) also commits rape if he or she compels a person-
(a) to sexually penetrate the offender or another person, irrespective of whether the person being sexually penetrated consents to the act; or
(b) who has sexually penetrated the offender or another person, not to cease sexually penetrating the offender or that other person, irrespective of whether the person who has been sexually penetrated consents to the act.
(4) For the purposes of subsection (3), a person compels another person (the victim) to engage in a sexual act if the person compels the victim (by force or otherwise) to engage in that act-
(a) without the victim's consent; and
(b) while-
(i) being aware that the victim is not consenting or might not be consenting; or
(ii) not giving any thought to whether the victim is not consenting or might not be consenting.”
Consent
One of the central elements of the offence of rape is the question of whether the complainant consented to the penetration by an accused. Additionally, it should also be noted that the complainant must also have the capability to consent as well.
Chief Justice King in Question of Law Reserved on Acquittal (No 1 of 1993) said:
“The law on the topic of consent is not in doubt. Consent must be a free and voluntary consent. It is not necessary for the victim to struggle or scream. Mere submission in consequence of force or threats is not consent. The relevant time for consent is the time when sexual intercourse occurs. Consent, previously given, may be withdrawn, thereby rendering the act non-consensual. A previous refusal may be reversed thereby rendering the act consensual. That may occur as a consequence of persuasion, but, if it does, the consequent consent must, of course, be free and voluntary and not mere submission to improper persuasion by means of force or threats.”
Some jurisdictions have defined the elements that constitute consent in a sexual case and an example can be found in s 348 of Queensland’s Criminal Code which states:
“(1) In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.
(2) Without limiting subsection (1), a person's consent to an act is not freely and voluntarily given if it is obtained
(a) by force; or
(b) by threat or intimidation; or
(c) by fear of bodily harm; or
(d) by exercise of authority; or
(e) by false and fraudulent representations about the nature or purpose of the act; or
(f) by a mistaken belief induced by the accused person that the accused person was the person's sexual partner.”
Can consent be communicated via the conduct of a person?
The common law has noted that consent may be communicated by conduct, with McPherson JA in R v Millar stating:
“It is the nature of things rare for consensual conduct involving intimacy of this kind to be preceded by formal offer and acceptance. In some instances, consent is capable of being inferred from acquiescence in the continuation of the activity.”
Can consent be given then withdrawn?
We should re-emphasise the judgment of King CJ in the matter of Question of Law Reserved on Acquittal (No 1 of 1993) with his Honour stating: “Consent, previously given, may be withdrawn, thereby rendering the act non-consensual.”
This piece is a brief overview in regards to the law of rape and the element of consent. It is advisable that any person who requires any assistance in relation to a criminal matter should seek the help of a lawyer.
