Education & Reference Rape

[Simple Jack]

I was looking at the definition of rape as defined by the Crimes Act 1958 and it came up with this...

Crimes Act 1958 - SECT 38

Rape

38. Rape





(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.

All fairly straightforward.
The bit that interested me was the definition of consent..

Crimes Act 1958 - SECT 36

Meaning of consent1

36. Meaning of consent1

For the purposes of Subdivisions (8A) to (8D) consent means free agreement.
Circumstances in which a person does not freely agree to an act include the
following-

(a) the person submits because of force or the fear of force to that
person or someone else;

(b) the person submits because of the fear of harm of any type to that
person or someone else;

(c) the person submits because she or he is unlawfully detained;

(d) the person is asleep, unconscious, or so affected by alcohol or
another drug as to be incapable of freely agreeing;

(e) the person is incapable of understanding the sexual nature of the act;

(f) the person is mistaken about the sexual nature of the act or the
identity of the person;

(g) the person mistakenly believes that the act is for medical or hygienic
purposes.


So my question for the legal eagles on BF is...

Scenario 1, Girl gets drunk at a bar, goes home with random guy while sloshed, has sex, wakes up, regrets it.

Scenario 2, Guy at bar, "Hi there, I am a billionare (or some other lie)", girl is impressed, goes with guy, sex, subsequently finds out the guy lives with is parents.

In either or both of these scenarios, could the girl then report the incident to police and would it technically qualify as rape?

 

[ThePuppetMaster]

i would say no in both cases, obviously it depends on the state of the girl in scenario 1... how drunk is 'sloshed' ... could she walk? talk? move freely? or was she close to unconscious?

wrt scenario 2, the man hasn't decieved the woman in terms of his actual identity ie. she agreed to have sex with him, i don't think it matters if he lied about certain aspects of his life

as long as she didn't agree to have sex with somebody else, yet some guy came in and had sex with her... while she thought it was the other person

or something along those lines

obviously a lot depends on specifics

 

[Caesar]

Scenario 1 is very ambiguous, and 'how drunk is too drunk to consent' is often a point of contention in trials. There's no hard and fast rule (e.g. 0.05 to drive) but it tends to revolve around whether the alleged victim displayed a lack of awareness, whether it can be shown that their ability to form rational judgements was impaired, that sort of thing. The onus of proof is on the prosecutor to demonstrate that the alleged victim was unable to make decisions in their own best interest, don't forget. Nonetheless you will find that lawyers and law students tend to be uncommonly careful not to take undue advantage of intoxicated girls.

Scenario 2 is more about being deceived as to the identity of the person, rather than whether they misrepresent things about themselves. Tends to be stuff like a guy climbs into bed with a girl and has sex with her by pretending to be her boyfriend in the dark. A girl thinking you're a firefighter is not generally regarded as being a similarly crucial and overriding factor in determining consent.

 

[standingroomonly]

I know it's overseas but this case was pretty interesting.

A Palestinian man was convicted of rape after having consensual sex with a Jewish woman who believed he was Jewish as well.

Thirty year-old Sabbar Kashur met the woman in downtown Jerusalem in September 2008, introducing himself as a single Jew. Later that night they had sex. When the woman discovered he was actually Arab, she filed a criminal complaint for rape and indecent assault, later changing it to rape by deception through a plea bargain.

http://www.care2.com/causes/human-r...f-deceit-rape-after-lying-about-being-jewish/

If every bloke who lied about something to get laid then they'd have to build a new court just to deal with the case load.

As for the intox thing goes, who knows where the line is there. According to liquor licensing pretty much everyone who has had a drink is intoxicated. If the girl is incapable of saying no or is saying no then thats obviously ordinary.

It always gives me the creeps to see blokes who are sober or close to it cracking onto really drunk girls. That is where you hope the girls friends have an eye out for each other.

 

[Andre]

If every bloke who lied about something to get laid then they'd have to build a new court just to deal with the case load.

It'd have to have plenty of cells for the legions of slags lying about being on the pill, so they can get welfare and never work a day can join them as lying to get a root.

As for the intox thing goes, who knows where the line is there. According to liquor licensing pretty much everyone who has had a drink is intoxicated. If the girl is incapable of saying no or is saying no then thats obviously ordinary.

Why only the bloke in trouble here? Another double standard like the male teacher with student = jail time, female teacher with student = most times slap on wrist? Shouldn't it then be that every bloke who wakes up in the morning after picking up a girl drunk and thinking 'WTF was I thinking?', be entitled to claim he wasn't in a fit state to consent to sex?

 

[Caesar]

I don't think there is a single case in Australian legal history of a woman being convicted of rape on the basis of the male's inability to consent due to intoxication.

Whilst it theoretically cuts both ways I don't think it's surprising that we're talking about it as a male --> female issue.

 

[pacemaker]

Simple Jack
BigFooty Apprentice

St Kilda

Join Date: Jan 2011
Location: Melbourne

Interesting times ahead. Best to find out now than later on in the year I spose.

Now to add to the topic I believe both scenarios impose interesting questions.

 

[Caesar]

Now to add to the topic I believe both scenarios impose interesting questions.

What does that add, precisely?

 

[ben_09]

In perth there was a case of a guy meeting girls online and telling them to have sex with this millionaire (it was himself). Pretty sure he got done, I don't think it was for rape though.

 

[Simple Jack]

...various accurate sounding stuff

Thanks, thats pretty much the sort of answer I was looking for

If every bloke who lied about something to get laid then they'd have to build a new court just to deal with the case load.

Thats pretty much why I was asking. I doubt a high percentage of girls in a bar type situation know the specific wording of the law, so I was wondering if a whole heap technically get 'r*ped' every weekend but just don't know it.

 

[SirJimi05]

I don't think there is a single case in Australian legal history of a woman being convicted of rape on the basis of the male's inability to consent due to intoxication.

Whilst it theoretically cuts both ways I don't think it's surprising that we're talking about it as a male --> female issue.

I recall some years ago reading about a rape case where a number of females were charged with gang raping a guy. I can't recall if they were done or not but they were certainly charged.

 

[jonoman89]

Scenario 1, Girl gets drunk at a bar, goes home with random guy while sloshed, has sex, wakes up, regrets it.

Scenario 2, Guy at bar, "Hi there, I am a billionare (or some other lie)", girl is impressed, goes with guy, sex, subsequently finds out the guy lives with is parents.

In either or both of these scenarios, could the girl then report the incident to police and would it technically qualify as rape?

Just did criminal law last year and had very similar questions thrown up in our exams.

Scenario 1: Depends on whether he knew she was so pissed that she was incapable of giving valid consent. If the bloke knows she's drunk and might not be wanting to go through with it if she was sober, then yes, he's r*ped her.

If she did something on her own accord, i.e. shag the bloke, fully consentually then later regretted it...well, then that's her problem. Not rape.

Scenario 2: It isn't bona fide rape, but procuring sexual penetration by fraud (a type of statutory rape) under s 57 (2) - http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s57.html.

If you consent to sexual penetration then you consent to all types of penetration from that person, unless you have stated/suggested otherwise, regardless of the surrounding circumstances. It doesn't matter whether the person you are boning isn't who they say to be when dealing with s 38 rape.

Interesting case is Papadimitropoulos v R from 1957. A bloke convinced a girl that they were legally married so they could have sex. They weren't - the ceremoney the guy organised was a sham. Guy got off because she consented to the sex...the surrounding circumstances weren't an issue when dealing with s 38 rape.

Similarly, if you tell a woman that you're wearing a condom and are not in fact doing so, that is not rape under s 38 as she is still agreeing to sexual penetration. Still a crime however.

 

[Caesar]

Scenario 1: Depends on whether he knew she was so pissed that she was incapable of giving valid consent. If the bloke knows she's drunk and might not be wanting to go through with it if she was sober, then yes, he's r*ped her.

Hope you didn't write that in your exam. Offender's knowledge as to the victim's state of mind is irrelevant. Issue surrounds taking due care.

 

[jonoman89]

Hope you didn't write that in your exam. Offender's knowledge as to the victim's state of mind is irrelevant. Issue surrounds taking due care.

Well then you've got a massive fight with Monash Law School ahead of you

Intention and Recklessness satisfy rape as far as the mental element goes. If you have one inkling of doubt as to whether they're consenting, and they in fact aren't, then you are guilty of rape.

You can't commit a crime such as rape without satisfying the requisite fault element....the offender's knowledge of the victim's state of mind is integral to the whole issue.

You can't intentionally penetrate someone without their consent if you don't know they aren't consenting. Similarly, you can't recklessly penetrate someone against their will without the thought of them possibly not consenting running through your head.

 

[Caesar]

Intention and Recklessness satisfy rape as far as the mental element goes. If you have one inkling of doubt as to whether they're consenting, and they in fact aren't, then you are guilty of rape.

That's not what you said. You said it depends on whether he knew she was incapable of giving consent.

It doesn't. What he knows of the victim's state of mind is irrelevant. The issue is whether the accused was reckless of that possibility (i.e. did not take due care).

You can't commit a crime such as rape without satisfying the requisite fault element....the offender's knowledge of the victim's state of mind is integral to the whole issue.

:facepalm: Maybe you're just expressing yourself badly. See above.

 

[jonoman89]

That's not what you said. You said it depends on whether he knew she was incapable of giving consent.

The statute is clear that one commits rape if they intentionally penetrate someone whilst A) knowing they do not consent or B) knows there is a possibily they do not consent, and C) that the victim does indeed not consent.

The offender's understanding of the victim's mental state is integral in proving intention.

It doesn't. What he knows of the victim's state of mind is irrelevant. The issue is whether the accused was reckless of that possibility (i.e. did not take due care).

If he knows she is not consenting/not capable of consenting, then he has r*ped her as intention has clearly been proven. Intention is just as, if not more, valid in making out rape than recklessness. I don't see what you're trying to get at here?

EDIT: I think i understand what you're saying. In my OP i stated that intention is the way to prove rape (aka through knowing they are not consenting). I didn't mention that reckless indifference was equally as powerful a fault element, my bad.

Should have read as: "Depends on whether he knew/suspected she was so pissed that she was incapable of giving valid consent. If the bloke knows/suspects she's drunk and might not be wanting to go through with it if she was sober, then yes, he's r*ped her."

But i find it confusing that you only suggest recklessness as a way of proving fault under rape. It's pretty clear intention is more powerful a fault element. What an offender knows is incredibly important in determining intention...

 

[Caesar]

I don't see what you're trying to get at here?

It's not complex. You said:

Scenario 1: Depends on whether he knew she was so pissed that she was incapable of giving valid consent.

That is just plain wrong. If you wrote it as a tutorial answer I would give you zero.

It doesn't matter if he didn't know she was incapable of consenting. What matters is whether he was reckless to the possibility. Thus the issue is not knowledge as to the victim's state of mind, it is whether the actions of the accused constitute taking due care.

Your subsequent replies have demonstrated that you understand this (sort of), but doesn't change that the initial statement was incorrect. Which is all I ever took issue with.

But i find it confusing that you only suggest recklessness as a way of proving fault under rape.

I didn't. I merely pointed out that knowledge is not the baseline for culpability.

 

[jonoman89]

That is just plain wrong

Nope.

Knowledge is integral to making out intention, one of the two fault requirement for rape. How are you going to make out the following if you don't take into account the offender's state of mind: "(i) while being aware that the person is not consenting or might not be consenting" ?

This is where you've lost me: it seems as though you have entirely disgregarded intention as an element of making out rape. The fact that the offender knows the victim is not consenting is absolutely integral in making out that provision.

Guy shags a girl knowing she's so drunk she can't validly consent = rape.

Guy shags a girl suspecting she's too drunk to validly consent = rape.

Sure, it's a hell of a lot easier to go down the recklessness route for your fault requirement, but to say only a failure to take due care results in rape is just plain wrong.

 

[Caesar]

Ugh. Put the textbook away for a minute, and look at the actual scenario posed. The question was with regards to the baseline level of culpability for rape and that only requires recklessness.

Of course it's rape if he knows she can't consent. Nobody is arguing that. The point is that he doesn't NEED to know. He just needs to show reckless disregard towards the question (hence the "might not" in the legislation).

Therefore, when you said that whether it was rape hinged on whether he knew she was incapable of consent, you were quite wrong.

Do you understand? Fucking students.

 

[jonoman89]

Ugh. Put the textbook away for a minute, and look at the actual scenario posed. The question was with regards to the baseline level of culpability for rape and that only requires recklessness.

Of course it's rape if he knows she can't consent. Nobody is arguing that. The point is that he doesn't NEED to know. He just needs to show reckless disregard towards the question (hence the "might not" in the legislation).

Therefore, when you said that whether it was rape hinged on whether he knew she was incapable of consent, you were quite wrong.

Do you understand? ****ing students.

I understand perfectly. What i dont understand is how you are quick to judge what i said as incorrect when intention is just as valid as recklesness in the same situation. Recklessness or course is more likely a proposition in that scenario, but intention is equally as valid a method of finding for rape in that scenario as well.

In fact, looking back on it i said if he 'knew' she wasn't consenting or that she 'might not' be consenting. I was covering both intention and recklessness, albeit in not the best worded answer (it was 2am). I didn't raise the issue regarding not thinking whether they are consenting or not. You are talking about a completely different avenue of finding fault to me. It is an avenue for prosecution of course, but so is actual intentention or recklessness (the subjects i touched on).

And congrats on pulling the traditional "i'm a lawyer and know the law perfectly, and am going to quickly shut down someone with a different interpretation to me even if they might be correct" routine. Really hate that kind of attitude, and it's almost universal amongst all law students and lawyers.

And from reading your previous posts you have stated you're a commercial lawyer. Don't play the know everything card on a completley different area of expertise. You've probably done as much criminal law as most law students out there...

If you wrote it as a tutorial answer I would give you zero.

But you never would be in a position to give me a mark, would you? So what are you trying to prove here? That you're amazing and i'm an idiot using a condescending remark? Nice one.

I'm pretty happy with my crim marks, so i think i'll stick with what i'm doing thanks...regardless of the (i'm sure) much respected tick of approval from a resident legal eagle on a footy forum.

 

[Caesar]

Cripes. I just felt I should point out the correction because you set yourself up in a position of authority with your post. If you hadn't prefaced it with 'I'm a law student' I probably wouldn't have bothered.

The tutorial remark was part of a wider comment outlining the rationale for the answer being incorrect in the context of the scenario you were addressing, as in how I would have evaluated your answer if you had been in one of my classes. If it rankled with your ego then I apologise - it wasn't intended to be personal.

I'm not trying to put you down or claim I know more about criminal law than you - if you've read my posts on these boards you know I'm the first to disclaim areas that are not my field of practice. I was just pointing out a factual error for the benefit of those reading. Again, sorry if I caused offence.

 

[jonoman89]

Cripes. I just felt I should point out the correction because you set yourself up in a position of authority with your post. If you hadn't prefaced it with 'I'm a law student' I probably wouldn't have bothered.

The tutorial remark was part of a wider comment outlining the rationale for the answer being incorrect in the context of the scenario you were addressing, as in how I would have evaluated your answer if you had been in one of my classes. If it rankled with your ego then I apologise - it wasn't intended to be personal.

I'm not trying to put you down or claim I know more about criminal law than you - if you've read my posts on these boards you know I'm the first to disclaim areas that are not my field of practice. I was just pointing out a factual error for the benefit of those reading. Again, sorry if I caused offence.

Appreciated. Thanks.

I don't profess to know everythhing, i definitely do not. But the frequent "OMGGGGG YOU'RE TOTALLY WRONGGGG!" calls that are made by people i interact with at law school or at law firms is incredibly off-putting. It's an in-built characteristic of a good lawyer to pounce upon an incorrect statement, but i think a lot of people take it way too far (such as in informal situations like this).

Seems more or less we were arguing the same thing from a different angle anyway.