Melbourne University Law Students Society

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Melbourne University Law Students
Society Student Tutorial Service Criminal Law
and Procedure 730-368 Freya Dinshaw
Sponsoring Partners Clayton Utz Mallesons
Stephen Jaques Leo Cussen Institute
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DISCLAIMER These tutorials and the notes are
designed to assist students in their learning.
The tutorials and the notes are not a substitute
for the course material, nor should they be
relied upon as representative of the subject
matter of the course. Neither the Melbourne
University Law Students Society nor the student
tutor of these tutorials will take responsibility
for any consequences flowing from the use of the
material provided in the tutorials or in the
notes.
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Tutorials Schedule

• Email f.dinshaw_at_unimelb.edu.au

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Sexual Assault

• Plan for today
• Rape (s 38(1) Crimes Act)
• Indecent assault (s 39(1) Crimes Act)
• Other sexual offences
• Assault with intent to rape (s 40)
• Procuring sexual penetration by threats or fraud
  (s 57)
• Child sexual offences (s 45, s 47)
• Hypothetical
• Essay question

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Rape

• Maximum penalty 25 years
• Definition in s 38(2)
• Actus reus
• (1) Sexual penetration by A of V
• Can be any introduction by a person of penis to
  vagina, mouth or anus OR introduction of any
  other object to vagina or anus (excluding good
  faith medical procedures) S 35(1)
• Vagina includes eternal genitalia and
  surgically constructed vagina s 35 (1)
• Includes compelling one to penetrate themselves
  or another (for male rape) s 38(3)(a)
• Includes compelling one to continue penetrating
  another regardless of consent s 38(3)(b)
• Includes failure to withdraw s 38(2)(b)

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Rape

• Actus reus
• (2) V does not consent
• S 36 Consent means free agreement
• Must be positive in Vs mind
• Jury directions in s 37AAA
• (d) Fact that V does not do anything is enough to
  indicate lack of consent (applies if silence)
• (e)(iii) Fact that on an earlier occasion V
  freely agreed to engage in sexual activity with A
  no indication of consent
• (e)(i)(ii) Fact that no protest, physical
  resisting or physical injury sustained no
  indication of consent
• S 36 Lists factors that will negate consent
• (a)-(c)Fearing force or harm to V/3rd person
• Olugboga v R
• (d) V unconscious/intoxicated (includes sleeping)
• (e) V incapable of understanding nature of act
• (f) V is mistaken about sexual nature of act or
  identity of A
• Papadimitropolis v R
• (g) V mistakenly believes act for medical purpose
• Mobilio

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Rape

• Mens rea
• 3 considerations in s 38(2)
• Penetration must be intentional AND
• A knew that V was not consenting or might not be
  consenting
• Knowledge/recklessness
• DPP v Morgan, Zilm no need for belief to be
  reasonable, but must be honestly held. However
  can consider reasonableness
• Note jury direction s 37AA(b)(ii) can have
  regard to whether A took any steps to ascertain
  whether V was consenting
• A did not give it any thought
• Tolmie suggests no one has no thought to consent
  during sexual activity

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Indecent Assault

• Max Penalty 10 years
• Defined in s 39(2)
• Actus reus
• A assaults V in indecent circumstances
• Must show CL assault (either limb), show actus
  reus and mens rea
• Assault can be indecent, or else surrounding
  circumstances can be indecent
• Consider this according to ordinary standards of
  morality of respectable people within the
  community. Must have sexual connotation
  (Harkin)
• Relevant areas are genitals/anus for male/female
  and breasts for female (Harkin) ? too narrow?

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Indecent Assault

• Actus reus
• Three types of scenarios with indecent
  circumstances (Harkin, influenced by R v Court)
• Inherently indecent circumstances
• Consider As knowledge of this
• Eg. Removing Vs clothes, exposing ones self
• Circumstances capable of being indecent
  depending on As knowledge/intent
• R v Court spanking
• Circumstances incapable of being indecent
• Objective test does not involve knowledge of A
• Eg. Removing Vs shoe, even if A found this
  sexually gratifying (R v George)

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Indecent Assault

• Mens rea
• A must be aware that V was not consenting or that
  they might not be consenting, or must not give
  any thought (s 39(2))
• Similar to assault if no defence of consent
  raised, then additional mens rea requirement
  probably present (Harkin)

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Other Sexual Offences

• Assault with intent to rape (s 40)
• Show intent s 31(1) assault
• Compelling sexual penetration (s 38A)
• the offender compels the victim to introduce (to
  any extent) an object or a part of his or her
  body into his or her own anus or, in the case of
  a female victim, her own vagina OR bestiality
• Procuring sexual penetration by threats or fraud
  (s 57)
• Show penetration threat (10 years) or
  fraudulent means (5 years) no mens rea

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Other Sexual Offences

• Child Sexual Offences
• Sexual penetration of a child under the age of 16
  (s 45)
• Penalties in sub-s 2
• Strict liability
• Need to show penetration underage no defences
• Defences
• If people are married (sub-s 3)
• Consent (sub-s 4) AND
• (a) A believed on reasonable grounds that V was
  16 or over (balance of probabilities) or
• (b) A was not more than 2 years older than V
• (c) A believed on reasonable grounds they were
  married to the child
• If defence relating to consent shown, prosecution
  has onus of proving lack of consent (s 4A)

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Other Sexual Offences

• Child Sexual Offences
• Indecent act with child under age of 16 (s 47)
• Act or commission of act must be wilful
• Indecent act must be with child or in their
  presence
• Consent defences in (2) same as for s 45
• If defence raised, prosecution bears burden of
  proving lack of consent in (3)

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Hypothetical

• Based on R v Porteus
• Porteus was the proprietor of a remedial massage
  business in East Maitland. Two complainants
  attended for massages, separately and some months
  apart.
• C1 attended on Porteus by appointment. C1
  removed his clothes for the massage and towel was
  placed over his backside. In the course of the
  massage the towel was slowly moved ... up, and
  in massaging C1s inner thighs Porteus brushed
  C1s scrotum a few times. C1 thought nothing
  of it and said nothing about it, and Porteus
  said nothing about it. Porteus massaged C1s
  buttocks. C1 had not invited or agreed to that,
  but did not object, thinking that Porteus is a
  professional and knows what to do. C1 was asked
  to roll over, and did so. The towel was placed
  over his genitals. Porteus massaged C1s upper
  body and legs, and C1 was feeling pretty drowsy
  really out of it. Porteus said that the next
  stage was to stretch C1s legs and pushed his
  legs up to his chest and then returned them this
  displaced the towel. Porteus wiped C1 down with
  the towel, then washed his hands. C1 was lying on
  the table with his eyes closed.
• Porteus returned to the table and, according to
  C1, began sucking on my penis. At this point
  C1s penis was not erect. C1 said that he froze,
  I just couldnt do nothing, like, was just in
  shock. This process took about 5 minutes in
  all. C1 ejaculated, and Porteus continued sucking
  on his penis for about another 30 seconds.
  Porteus told C1 basically the massage was over,
  and C1 got up from the table. Before he dressed
  Porteus came behind him and started kissing me
  on the neck, and then he reached from behind me
  and grabbed my genitals from behind while I was
  standing there. Porteus said that C1 would be
  the most relaxed man in East Maitland. C1 did
  not call out or say No to Porteus at any time.
  He said I was just in shock. I just froze. He
  agreed that he could have got off the table and
  pushed Porteus away, and that he had not done so.
  
• C2 attended on Porteus without an appointment,
  seeking a massage of his shoulder. Porteus did
  not just massage his shoulder but down to his
  knees. In the course of the massage Porteus
  touched C2 on the penis. Porteus touched him
  again on the penis. C2 said he thought he said
  Ah and shook his head but didnt know whether
  Porteus heard. Porteus continued to touch C2s
  penis and started to masturbate it. C2 did not
  protest because Ive got injuries and I didnt
  want to put up no fight because I thought this is
  going to be worse so I just laid there and said
  nothing. Porteus continued until C2 had an
  erection. C2 then felt Porteuss mouth on his
  penis, and then Porteus kept on going until I
  ejaculated but I didnt want to put up a fight
  because it already ... .
• C2 did nothing because he decided to wait until
  its over and then I will try and - when I can
  make my way away then I will - I will make it
  clear that I want to leave then. His left side
  was a bit paralysed. He did not call out - I
  wasnt game because I thought things would be
  only worse. I thought Ill wait until I can find
  a - wait until I can find a chance and Porteus
  finished and Ill get out because I didnt want
  to start a fight because Ive got - Ive got
  injuries and it would only make it worse. I
  thought that would be the best thing to do in
  that matter. He said that he did not leave
  immediately because Porteus was supposed to work
  on my shoulder.
• What crimes has A committed?

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Hypothetical - Answer

• Rape (as created by s 38(1))?
• Penalty Level 2 imprisonment (25 years)
• Defined in s 38(2)
• Has there been penetration?
• Can be any introduction by a person of penis to
  mouth (s 35(1))
• Here C1 and C2 were penetrating, so could fall
  under s 38(3)(a) compelling penetration of
  another
• Lack of consent?
• S 36 free agreement?
• Presence of negating factors?
• C2 fear of force/harm if did not consent? S
  36(a)/(b)
• Other considerations?
• Jury directions s 37AAA(d) C1 and C2 did not
  say anything is enough
• (e)(i)/(ii) No consent just because no physical
  struggle/injury
• Look at what was happening in minds of Cs. Is
  what they say supported by their behaviour?
• C2 longer lead up? More chance of showing no
  consent?

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Hypothetical - Answer

• Rape
• Mens rea present as defined in s 38(2)?
• Penetration intentional? Yes.
• Did P know that Cs were not consenting/might not
  have?
• Like Zilm? Actions speak louder than words,
  maybe because there was no protest to the
  penetration? Belief must be honestly held, not
  reasonably. But here was belief reasonable?
• Jury direction s 37AA(b)(ii) can have regard
  for steps taken to ascertain consent. Here no
  steps so maybe belief in consent not honest.
  Wilful blindness?
• P did not give any thought as to consent?
• Caught up in the moment? However happened twice,
  maybe more?

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Hypothetical - Answer

• Indecent assault (created in s 39(1))?
• Max penalty 10 years
• Defined in s 39(2)
• Assault?
• Actual physical force?
• C1 kissing on neck? Grabbing genitals?
• Unwanted? Yes (although some contact in massage
  was consensual, eg brushing scrotum)
• Intent to apply force? Yes.
• Indecent circumstances?
• ordinary standards of morality of respectable
  people within the community
• Relevant areas? Genitals indecent. Neck? Does
  not fall into Harkin areas but kissing makes it
  indecent?
• Which category? Difficult because of intimate
  set up of massage.

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Hypothetical - Answers

• Indecent assault
• Mens rea aware C1 was consenting/might not be
  consenting? No thought given?
• Same as for rape if mens rea for rape, would be
  same for assault here.

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Essay Question

• 2008 Sem 2 exam