The Chaotic State of the Law of Rape in Victoria: A Mandate for Reform

Published date01 August 2014
Date01 August 2014
AuthorKenneth J. Arenson
Subject MatterArticles
The Chaotic State of the Law of
Rape in Victoria: A Mandate for
Kenneth J. Arenson*
Abstract This article is intended as a nal commentary and sequel to two
earlier articles in this journal that have examined the arcane and circular
wording of s. 37AA of the Crimes Act 1958 (Vic) and its patent incompatibility
with ss 36 and 38 of that Act that dene the elements of rape. In particular,
this article will revisit many of the essential points raised in the rst two
articles in order to afford readers with an appropriate backdrop against
which the Victorian Court of Appeal’s decision in GC vThe Queen will be
examined. The article concludes with a strenuous recommendation that
s. 37AA be repealed or substantially amended in order to comport with
ss 36 and 38 as well as the Court of Appeal’s decision in NT vThe Queen
that signicantly reshaped the Morgan principle.
Keywords Rape; Consent; Genuine belief in consent; Morgan principle;
Sexual offences
Prior to 1981, rape in Victoria was a common law offence that consisted of
carnal knowledge 1of a woman against her will.2As the words ‘against her
will’ wrongly implied that some form of resistance on the part of the
complainant was necessary for a rape to occur,3the courts ultimately
replaced those words with ‘without her consent’4to accurately reect the
elements of rape as it now exists at both common law and under the
various statutory versions of rape such as, for example, s. 38 of the Crimes
Act 1958 (Vic). It is important to note that acts of forcible sodomy are not
classied as rape at common law because they involve penetration of
orices other than the vaginal cavity.5Thus, such acts were made criminal
only by virtue of the statutory offence of buggery that was inexplicably
* Associate Professor, Deakin University School of Law; e-mail: I
would like to thank my research assistants, Nicole Rowan and Tess Blackie, for their
excellent contributions to this article.
1 At common law, carnal knowledge denotes any amount of penile penetration, however
slight, of the vaginal, anal or oral cavity of a female: Holland vThe Queen (1993) 67 ALJR
946. Thus, the common law crime of rape could only be perpetrated by a man against a
woman as a principal in the rst degree. A woman could be guilty of raping another
woman, but only as a joint principal in the rst degree or as an accessory, whether as a
principal in the second degree or an accessory before the fact: K. J. Arenson, M. Bagaric
and P. Gillies, Australian Criminal Law in the Common Law Jurisdictions: Cases and Materials,
3rd edn (Oxford University Press: Oxford, 2011) 300.
2Arenson, Bagaric and Gillies, above n. 1 at 299, citing Hale’s Pleas of the Crown, vol. 1, 626.
3 Arenson, Bagaric and Gillies, above n. 1 at 299, citing L. Waller and C. R. Williams,
Criminal Law: Text and Cases, 9th edn (LexisNexis: 2001) 89–90.
4 At common law, consent is dened as free and conscious permission: RvWilkes and
Bryant [1965] VR 475 at 480. Thus, if the complainant accedes to sexual penetration out
of force, fear of force or any other type of harm, no consent has been given.
5 Arenson, Bagaric and Gillies, above n. 1 at 299.
The Journal of Criminal Law (2014) 78 JCL 326–340

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