SEXUAL OFFENCES

RAPE

Pressures in the way of compliments, blandishments etc.

may be legitimately directed towards securing consent.
Olugboja (English Ct of Appeal; not followed yet in SA):
Whether non-violent threats vitiate consent is decided by the
jury using its combined good sense, experience and
knowledge of human nature.

S48(1) CLCA: A person who has sexual intercourse with

another person without the consent of that other person
(a) knowing that that other person does not consent to
sexual intercourse with him; or
(b) being recklessly indifferent as to whether that other
Frauds
person consents to sexual intercourse with him
shall (whether or not physical resistance is offered by that
other person) be guilty of rape and liable to be imprisoned for Papadimitropoulos: Fraud vitiates consent only if it relates to
life.
the nature of the act or the identity of the accused.
*D tricked V into believing that she went through a
PHYSICAL ELEMENTS
marriage ceremony with him.
*V consented to intercourse only because of this belief.
Sexual intercourse
V understood the act of sexual intercourse Ds fraud
did not vitiate consent.
S5: sexual intercourse includes any activity (whether of a
It is the mistake as to the nature of the act or identity of
heterosexual or homosexual nature) consisting of or
the accused, rather than the accuseds fraud, that vitiated
involving:
consent.
(a) penetration of the labia majora or anus of a person by
But Ds fraudulent conduct induced consent
any part of the body of another person or by any object;
punishable under a less serious offence, eg. of procuring
(b) fellatio; or
sexual intercourse by fraud or false pretences.
(c) cunnilingus.
R v Linekar
S73(1): Sexual intercourse is sufficiently proved by proof of
*V prostitute agreed to intercourse because D promised
penetration.
to pay her.
S73(2): No person shall, by reason of his age, be presumed
*D withheld payment.
incapable of penetration.
Ds false pretences did not vitiate consent.
Abraham: Insertion of fingers into a vagina comes within the
SA definition of intercourse.
Medical treatment
R v Murphy: Sexual intercourse is a continuing act,
beginning with penetration and ending with withdrawal.
Mobilio: A mere mistake as to the accuseds purpose is not
So if D becomes aware that V is not consenting after
sufficient to negative consent.
commencing the act, but nevertheless continues, it is
*D doctor penetrated V with a transducer purely for the
rape.
purpose of sexual gratification.
V understood the nature of the act (insertion of
Lack of consent
transducer into vagina) consent not vitiated.
As long as V still knew what was physically being done
Camplin: Lack of consent does not necessarily involve
to them, fraud does not vitiate consent.
resistance (also s48(1) CLCA).
A mistake as to the significance of the act is not
Mayers: A sleeping victim cannot consent to intercourse.
sufficient to vitiate consent.
Francis: A person who is too intoxicated to consent, cannot
CLCA s73(5): Agreement to an act on the basis that it is
give consent. However, lesser degrees of intoxication may be
necessary for the purpose of medical diagnosis, investigation
consistent with consent.
or treatment, or for the purpose of hygiene, is not consent to
Rodin: Intellectually disabled victim can consent to
that act for another purpose.
intercourse only if:
She understands the nature of intercourse, and
Suggested reform for physical element of rape
She is aware of her right to refuse.
Lynch: Mere want of intelligence does not negative the
Take consent out of rape (by relying on the violence of the
absence of consent to a sexual act prosecution must still
accused rather than the agreement of the victim)
prove that V did not consent.
Grade rape (by creating a range of sex offences of greater
Morgan: A person can consent to intercourse only if she has a
and lesser seriousness) & letting jury decide how serious it is.
basic understanding of the sexual character of penetration.
(esp. youths)
FAULT ELEMENTS
Threats and pressures
Hallett: Consent extracted through force or threats of force is
no consent.
Fisse: Threats to a family member will vitiate consent, but
possibly not threats to a stranger.
Egan (SC SA)
Only threats of violence may vitiate consent.
True consent must be free and willing consent.

R v Brown (SC SA): Proof of full subjective fault is required

for both intercourse (the conduct) and lack of consent of the
victim (the circumstance).
S48(1) CLCA: Prosecution must prove knowledge or
reckless indifference with respect to non-consent.
DPP v Morgan: An honest belief in consent will excuse the
defendant.

SEXUAL OFFENCES
An honest belief in Vs consent is inconsistent with
knowledge or recklessness as to Vs non-consent
honest belief in consent will excuse the defendant.
But unreasonableness of belief can be evidence against
the view that the honest belief was actually held.
R v Wozniak & Pendry (SC SA): An honest belief that the
woman is consenting will excuse the defendant, even if it is
an unreasonable belief.
Egan (SC SA): reckless indifference requires realisation of
the possibility that the victim is not consenting.
The accused is recklessly indifferent if he realises that
she might not be consenting, but proceeds nevertheless.
So not reckless if D resolves the issue before
proceeding.
[Mere inadvertence to the possibility of non-consent will
not suffice for recklessness.]
Kitchener (NSW Ct of Appeal; not followed in SA): Total
indifference to the victims consent is recklessness for the
purposes of the fault element of rape.

Criticism on the subjective test

Faulkner
DPP v Morgans subjective test protects the individual
rights of the accused, but it neglects public welfare
inappropriate liberal balance between accuseds interests
and victims interests.
Inadvertence as to consent for sex is culpable
supports Kitchener approach.
Victorian Crimes Act requires reasonableness of belief: In
considering the accuseds alleged belief that the complainant
was consenting to the sexual act, it must take into account
whether that belief was reasonable in all the relevant
circumstances.
Canadian Federal SC Pappajohn v R: An honest but
unreasonable mistake may negative liability, only where
there was evidence from sources other than the accused.
NZ Crimes Amendment Act (No. 3) 1985 rejects Morgan &
states that belief in consent must be reasonable.

(b) by false pretences, false representations or other

fraudulent means;
is guilty of an offence & liable to be imprisoned up to 7
years.
[This is used where the victim has consented to intercourse, but
only because of a false pretence etc.]

INDECENT ASSAULT
S56: A person who indecently assaults another is guilty of an
offence & liable to be imprisoned up to 8 years (or 10 years
if V was under 12 yrs old).
[Used where intercourse didnt occur]
Physical elements
Beal v Kelley: An indecent assault is an assault that is itself
indecent, or is accompanied with circumstances of
indecency.
Harkin: The test for indecency is the ordinary standards
of morality of respectable people within the community.
Assault is established by threat of use of force, or the
actual use of force, with knowledge or recklessness as to
victims non-consent. (see notes)
Donovan: Lack of consent must also be proved.
Age affecting ability to consent:
S57(1): No person under 18 yrs is deemed capable of
consenting to any indecent assault committed by any
person who is his/her guardian, teacher, schoolmaster or
schoolmistress.
S57(2): Subject to s57(3), no person under 17 yrs is
deemed capable of consenting to any indecent assault.
S57(3): Where the person is between 16 & 17 yrs old,
his/her consent is a defence to a charge of indecent
assault if the accused proves that, at the time of the
indecent assault,
(a) he was under 17 yrs; or
(b) he believed on reasonable grounds that the
person was at least 17 yrs old.
Fault elements

ATTEMPTED RAPE
Fault elements
R v Evans: The fault elements for attempted rape are:
Intention to have sexual intercourse with the victim, and
either:
Knowledge that the victim does not consent; or
Reckless indifference as to whether the victim consents.
Physical elements
Usual test of proximity applies.

PROCURING SEXUAL INTERCOURSE

S64: Any person who procures any person to have sexual
intercourse
(a) by threats or intimidation; or

Court: Fault elements for indecent assault are:

an intention to assault the victim; and
an intention for the assault to be indecent.
Kimber: Recklessness as to the victims consent will suffice.
Indecent assault as an Alternative Verdict to Rape
S75: If, on a trial for rape or attempted rape, the jury:
(a) is not satisfied that the accused is guilty of the
offence charged; but
(b) is satisfied that the accused is guilty of an indecent
assault or a common assault, or an attempt to do so,
the jury must find the accused not guilty of the offence
charged, but may find the accused guilty of the lesser
offence.
Salmon: The accused should only be convicted of indecent
assault on a trial for rape, when the alleged indecent assault
arises out of the same facts as those alleged to constitute
rape.