Rape in Victoria as a Crime of Absolute Liability: A Departure from Both Precedent and Progressivism
| Author | Kenneth J. Arenson |
| Published date | 01 October 2012 |
| DOI | 10.1350/jcla.2012.76.5.795 |
| Date | 01 October 2012 |
| Subject Matter | Article |
Rape in Victoria as a Crime of
Absolute Liability: A Departure
from Both Precedent and
Progressivism
Kenneth J. Arenson*
Abstract In recent decades, a disturbing trend has emerged in Victoria and
elsewhere that has witnessed the emergence of statutory rules that accord
preferential treatment to prosecutors and complainants in instances
where allegations of rape are made. This article examines not only the
manifestations of such treatment in the form of Victorian crime legisla-
tion, but the means by which the statutory crime of rape in Victoria has
been transformed into an offence which, though technically one of mens
rea, can effectively be prosecuted as an offence of absolute liability. The
piece concludes with a discussion of the likely reasons for this trend as well
as the implications of allowing such a serious offence to be prosecuted as
one of absolute liability.
Keywords Sexual assault; Preferential treatment; Strict and abso-
lute liability; Presumption of innocence; Legislative reform
Although reasonable minds may differ on the question of which crimes
are amongst the most heinous on the criminal calendar, there are few
who would dispute that aside from murder or perhaps treason, rape is
very near the top of the list. In fact, there may be no crimes, with the
possible exception of those that deal with the sexual abuse of children,
which engender more opprobrium upon conviction than the crime of
rape.
Notwithstanding the seriousness of the crime or crimes with which an
accused is charged, and subject to some rare exceptions such as offences
relating to terrorism and national security,1the adversarial system of
justice has adhered to the notion that considerations of fairness, decency
and the desire to avoid wrongful conviction require that an accused be
accorded certain procedural and substantive safeguards which include,
but are not limited to the following: the right to trial by jury in instances
* Associate Professor, Deakin University; e-mail: ken.arenson@deakin.edu.au. I wish
to thank my research assistant, Tess Blackie, for her excellent contribution to this
piece.
1 See, e.g., the Terrorism (Commonwealth Powers) Act 2002 (Cth); the Anti-
Terrorism Act 2004 (Cth); Anti-Terrorism Act (No. 2) 2005 (Cth). Persons held on
suspicion of these types of crimes can be held in custody for longer periods of time
without trial.
399The Journal of Criminal Law (2012) 76 JCL 399–420
doi:10.1350/jcla.2012.76.5.795
where indictable offences are alleged;2that both the evidential and legal
burdens of proof be reposed on the prosecution with regard to the
constituent elements of the offence or offences as well as the identity of
the accused as the perpetrator;3the presumption of innocence that
exists until such time, if ever, as it is overcome by evidence that satisfies
the fact-finder that the constituent elements of the crime or crimes and
the accused’s complicity therein have been proved beyond reasonable
doubt;4and the right of an accused to cross-examine the witnesses
against him or her and/or challenge various other forms of evidence
tendered by the prosecution.5Succinctly stated, the common law and
the various legislative bodies who enact crime legislation have generally
eschewed the notion that these and other rights should either be ex-
panded or contracted, depending on the seriousness or degree of oppro-
brium associated with any particular crime.6Accordingly, an accused
charged with relatively minor offences such as theft or malicious mis-
chief has been accorded the same procedural and substantive rights as
an accused charged with the most serious offences such as rape, kidnap-
ping, arson, robbery, drug trafficking, treason, voluntary manslaughter
and murder.
Though the introductory comments above carefully enumerated the
purposes sought to be achieved in this article, it is equally important to
emphasise what this piece will not endeavour to achieve. First, it will not
address any statistical compilations concerning the percentage of convic-
tions in prosecutions for rape or other sexual assault crimes, and the
same is true of any statistical compilations regarding the percentage of
cases in which evidence of past sexual conduct is ruled admissible
notwithstanding the existence of ss 339–352 of the Criminal Procedure
Act 2009 (Vic), often referred to as ‘rape shield’ provisions. Moreover,
2 See, e.g., s. 80 of the Commonwealth Constitution which mandates that all
Australian Commonwealth indictable offences be adjudicated by a jury (emphasis
added). Although s. 80 applies only to Commonwealth indictable offences, there
are laws which require that state and territorial indictable offences must also be
adjudicated via trial by jury in the absence of legislation permitting the accused to
waive his or her right to a jury trial in favour of a bench trial: Juries Act 1927
(SA), s. 6; Supreme Court Act 1933 (ACT), s. 68A; Criminal Procedure Act 1986
(NSW), s. 131; Criminal Code 1899 (Qld), s. 604 and District Court of Queensland
Act 1967 (Qld), s. 65; Criminal Code 1924 (Tas), s. 361; Criminal Procedure Act
2004 (WA), s. 92; Criminal Code (NT), s. 348; Juries Act 2000 (Vic), s. 22(2).
3 K. J. Arenson and M. Bagaric, Rules of Evidence in Australia: Text and Cases, 2nd edn
(LexisNexis: 2007) 14–15, 21, 26 (‘Rules of Evidence in Australia’).
4Momcilovic v The Queen [2011] 280 ALR 221; [2011] HCA 34; Packett v The Queen
(1937) 58 CLR 190 (the first case where the presumption of innocence was
applied in Australia). See also A Ligertwood, Australian Evidence, 4th edn
(LexisNexis: 2004) 86–8, 102; J. D. Heydon, Cross on Evidence, 8th edn (LexisNexis:
2010) 293 (hereafter ‘Cross’).
5 See generally Cross, above n. 4 at 511–661; see also Rv Chin (1985) 157 CLR 673
at 678 (Gibbs CJ and Wilson J); J. L. Glissan, Cross-examination: Practice and
Procedure, 2nd edn (LexisNexis: 1991) 75: ‘Prima facie any witness may be cross-
examined by any party against whom he has testified’.
6 This is not to say that it is only in regard to crimes of sexual assault that special
rules apply. See, e.g., Terrorism (Commonwealth Powers) Act 2002 (Cth); Anti-
Terrorism Act 2004 (Cth); Anti-Terrorism Act (No. 2) 2005 (Cth). These Acts
provide for special rules that the Commonwealth Parliament deemed necessary to
deal with crimes of terrorism or threats to national security.
The Journal of Criminal Law
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