ACUS REUS

Legislation now recognises that ‘sexual intercourse’ can take a variety of forms in contrast to common law definition (penetration of the vagina with the penis. There is now no way of limiting the application to specific types and emphasis is on the fact of the violation not the nature of the act.

Definition in s 61H Crimes Act 1900 (NSW) is very broad including continuation of any of the activities defined as ‘sexual intercourse’ or ‘sexual penetration’. Broadened the definition by replacing the word ‘vagina’ with ‘genitalia of a female person’. (s61H(1)(a)).

Consent (s61R)

Remains an integral part of the actus reus – one of parties not consenting at the time the sexual intercourse took place. Whether the absence of consent is treated as inseparable from the physical act or as a relevant circumstance (He Kaw Teh (1985) per Brennan ), is central to the definition of sexual conduct as criminal. Evidence of non-consent invariably focused on complainant’s conduct, with assumption that she must have demonstrated her lack of consent in some manner such as objectively observable physical resistance.
•    S77- consent no defence in certain cases.

•    Physical Resistance
S61R(2)(d) of Crimes Act 1900 provides that ‘a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact to be regarded as consenting to the sexual intercourse’.

•    Mistake of physical identity
S66 – offence of procuring carnal knowledge by fraud (i.e. by false pretence or representation, or use of intoxicating drug woman procured to have illicit carnal connection with a man)

S61R(2)(a) – about mistaken belief of identity of other person or mistaken belief about marriage not amounting to consent to sexual intercourse.

Papadimitropoulos v R (1957) – High Court
FACTS: The defendant fraudulently represented to a young Greek woman recently arrived in Australia that she had gone through a marriage ceremony with him. This was not true. The defendant had simply given notice of his intention to marry at the Melbourne Registry Office. There was some evidence that the young woman never intended to consent to intercourse outside marriage.

DECISION: The High Court in Papadimitropoulos traced the historical development of the principles governing vitiation of consent. The High Court emphasised that it was the victim's mistake as to the nature and character of the act or identity of the accused (rather than the accused's fraud) which would vitiate consent. This is a significant shift in the law. The present common law focuses on the victim's state of mind, rather than the defendant's conduct. This approach to consent is open to criticism. Papadimitropoulos focuses the legal process on the victim's perceptions; what type of mistaken belief she held (whether it related to the nature of the act or the identity of the other party) and how she came to hold it. This approach focuses the investigation and the trial upon the victim and her state of belief, rather than the defendant's conduct.

On the facts of Papadimitropoulos the question is whether the mistake made by the young woman related to the nature of the act. Her mistake was that she believed she was consenting to marital intercourse. The High Court held that her mistake did not relate to the nature of the act. The Court rejected the approach of the Victorian Supreme Court which had attempted to extend nature of the act. As the young woman had understood the physical character of the act (that the act was an act of sexual intercourse) the defendant was therefore not guilty of rape. The High Court recognised that the defendant's fraudulent conduct, although not rape, could be punished under as another less serious criminal offence, namely, procuring sexual intercourse by fraud or false pretences. This offence exists in (s 66, Crimes Act 1900). (also under s61R (2) –mistaken as to marriage)

R. v. Galliene (1963) 81 WN (Pt 1) (NSW) 94 - the accused entered the victim's bedroom when her husband wasn’t there and they had sex on the basis that the woman thought it was her husband. (covered by section 61R(2) Crimes Act –mistaken belief that offender was married to her?)

R v Linekar [1995]
FACTS: Victim consented to sexual intercourse for fee of $25 but the accused fled without paying her.
PRINCIPLE: Fraud must go to the nature of the act and the person committing it. Therefore it was not considered rape but only possible charge was theft.

•    Mistake of nature of act
Note: s66 – procuring carnal knowledge by fraud; also s 61R(2) (a1)-consenting under mistaken belief that sexual intercourse is for medical or hygienic purposes.

R v Clarence (1888)
In Australia, Clarence has been applied in the context of rape by the High Court in Papadimitropoulos.
FACTS: Under the common law, the effect of fraud on consent was unclear until Clarence settled the issue. The defendant had intercourse with his wife, failing to disclose to her that he was infected with gonorrhoea. He was convicted of inflicting grievous bodily harm and assault occasioning actual bodily harm. The defendant raised her consent as a defence. The Court of Crown Cases Reserved established that only certain types of fraudulent behaviour vitiate consent.

DECISION: Stephen J. recognised that the principle "that fraud vitiates consent in criminal matters" required qualification. Stephen was concerned that an unqualified principle that fraud vitiates consent would make many acts of seduction an adultery rape. Having reviewed earlier authorities, Stephen J. concluded that consent would only be vitiated where the fraud related to "the nature of the act itself, or as to the identity of the person who does the act". In this case, the husband could not be guilty of assault, and by implication rape, since the wife's consent was "as full and conscious as consent could be. It was not obtained by any fraud either as to the nature of the act or the identity of the agent." – decision now reversed in NSW by section 61R(2)(a)(ii) of the Crimes Act 1900 provides that a person who consents to intercourse "under a mistaken belief that the other person is married to the person" is to be taken not to consent to intercourse.

Williams [1923] KB
FACTS: Appellant was choir master engaged to give singing lessons to 16 yr old girl and had sexual intercourse with her under pretence that her breathing was not right. Assured her it was “alright” and that he told her parents. She made no resistance, and submitted under belief, fraudulently induced by appellant, that she was being medically and surgically treated.

DECISION: She did not consent therefore a misdemeanour (false representations) amounted to a felony  rape.

R v Linekar (see above)
•    R v Mobillio
FACTS: The defendant was a radiographer. He had conducted a series of internal vaginal examinations upon several female patients using ultrasound transducers. These internal scans had absolutely no medical value, and were done for the defendant's own sexual gratification. He was charged and convicted of three counts of rape under the extended definition of sexual intercourse in Victoria which covers penetration with an object.

DECISION: The Court of Criminal Appeal considered whether the women had consented to intercourse and whether their consent had been vitiated. Applying Papadimitropoulos, the court held that to negate consent, a person's mistake must relate to the nature and character of the act or identity of the person. A mere mistake as to the man's purpose (which induces that consent) would not be sufficient. Applied to the facts of Mobilio, as each patient had understood the nature of the physical act their consent had not been vitiated. This demonstrates how narrowly the courts construe the term "nature of the act". The decision is strongly criticised by Jenny Morgan, "Rape in Medical Treatment: The Patient as Victim" (1991) 18 Melbourne University Law Review 403. (Decision now reversed by s 61R(2)(a1))

R. v. Flattery (1877) - CCR - the accused, while pretending to practice as a doctor, had sexual relations with a 'patient' claiming that it was medical treatment.

VITIATING CONSENT
•    Morgan
•    S66A-offence of sexual intercourse with child under 10
•    S66C offence of sexual intercourse with child b/w 10 & 16
•    S66F sexual intercourse where vulnerable (intellectual disability/ or by someone with authority over intellectually disabled person)

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