Ignorance of the Law as a Defence to Rape: The Destruction of a Maxim
| Published date | 01 August 2012 |
| Author | Kenneth J. Arenson |
| DOI | 10.1350/jcla.2012.76.4.784 |
| Date | 01 August 2012 |
| Subject Matter | Article |
Ignorance of the Law as a
Defence to Rape: The Destruction
of a Maxim
Kenneth J. Arenson*
Abstract In DPP v Morgan, the House of Lords correctly concluded that an
accused who entertained a genuine belief that a woman was consenting to
carnal knowledge of her person could not be convicted of the common
law crime of rape as such a belief and the requisite mens rea to convict were
mutually exclusive of one another. Though England and Wales have
resiled from this position by virtue of the Sexual Offences Act 2003,
s. 1(b), which allows for conviction upon proof that the accused did not
reasonably believe that the complainant was consenting, the Morgan
principle has retained its vitality at common law as well as under the
various statutory crimes of rape that exist throughout Australia, most
notably the provisions of s. 38 of the Crimes Act 1958 (Vic). Despite a long
line of Victorian Court of Appeal decisions which have reaffirmed the
Morgan principle, the court has construed s. 37AA(b)(ii) of the Act as
leaving open the possibility of an acquittal despite the fact that the accused
acted with an awareness that one or more factors that are statutorily
deemed as negating consent under s. 36(a)–(g) of the Act were operating
at the time of his or her sexual penetration; specifically, the court held that
the foregoing factors do not necessarily preclude a jury from finding that
the accused acted in the genuine belief that the complainant was consent-
ing. This article endeavours to explain how the accused could be aware of
such circumstances at the time of penetration, yet still entertain such a
belief. The article ultimately concludes that such an anomaly can only be
explained through a combination of the poor drafting of s. 37AA(b)(ii)
and the court’s apparent refusal to follow the longstanding precept that
ignorance of the law is never a defence to a crime, ostensibly prompted by
its adherence to the cardinal precept that legislation is not to be construed
as superfluous.
Keywords Rape; Defence of consent; Honest and reasonable belief
in consent; Ignorance of the law
In DPP vMorgan the House of Lords enunciated the principle that an
accused cannot be convicted of the common law offence of rape if the
criminal act of carnal knowledge was accompanied by an honest, though
not necessarily reasonable belief that the complainant was consenting.
This belief, according to the House of Lords, necessitates an acquittal
because it cannot be reconciled with the mens rea for rape that requires
proof that the accused intended to have carnal knowledge of the com-
plainant without her consent. In Morgan, this mens rea was construed to
mean that at the time of the criminal act, the accused was aware that the
complainant was not or might not be consenting. Although the Morgan
* Associate Professor, Deakin University, School of Law; e-mail: ken.arenson@deakin.
edu.au. I would like to thank my research assistant, Tess Blackie, for her excellent
contribution to this piece.
336 The Journal of Criminal Law (2012) 76 JCL 336–347
doi:10.1350/jcla.2012.76.4.784
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