Three Cases of Accessorial Absurdity?
| Author | David Lanham |
| Published date | 01 January 1990 |
| Date | 01 January 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01792.x |
Three Cases of Accessorial Absurdity?
David
Lanharn"
It is always a pleasure to have one's work discussed by Professor Glanville Williams even
when the discussion takes the form of an attempt at thorough devastation. In his article
'Which of you did it?'' Professor Williams devotes a hard-hitting paragraph to the
refutation of my suggestion that a parent who fails to prevent his or her young child from
making a serious attack on another child in the parent's presence might be guilty of the
crime committed in failing to prevent it.2 Professor Williams concedes that the control
principle which I espouse might appear to work satisfactorily in some cases, but rejects
it on the ground that it would lead to absurdity in other cases. Two cases of alleged absurdity
are identified and then a third case which he thinks falls outside the control principle is
added, possibly to indicate the incoherence of that principle. I will examine the three cases
and attempt to show that far from revealing absurdity or incoherence, they can be easily
and comfortably accommodated.
Case
1:
The Case
of
the
Pre-pubescent Rapist
Professor Williams asserts that 'it would be absurd to say that a father who stands by
while his son, aged 13, rapes a girl
ol'
similar age is guilty of rape.'3 If there is any
apparent absurdity in the result, it comes about because of the laws of accomplice liability
generally, not because of the control principle.
A
reasonably well-informed lay-person
would probably think of rape as sexual penetration by a male of a female without her
consent. Such a lay-person might think it absurd to say that a woman who had never been
within a thousand miles of the female victim might be held guilty
of
raping the victim,
but once it is explained that people can be found guilty of a crime not only by doing it
but
also
by aiding, abetting, counselling or procuring it, the apparerit incongruity melts away.
Where, then, is the absurdity in the case of the father of the 13 year old rapist? It may
be that, in selecting 13 as the age of the rapist, Professor Williams has in mind the supposed
common law immunity which boys under
14
enjoy in the case of rape4 and similar sexual
penetration offences. It is difficult to know how to handle the full implications of
so
quaint
an immunity, one that Professor Williams himself has castigated as a doubly silly
ficti~n,~ but it obviously presents difficulties for accomplice liability, quite outside the
question of the control principle. On a conventional accessorial approach the father could
not be found guilty of aiding and abetting the rape by his 13 year old son, even if he
actively encouraged it, for the simple reason that the son would not be guilty of the crime
of rape.
As
there would be no principal offender there would be no secondary offender.
Nor could the problem be easily solved by reference to the doctrine of innocent agency.
Quite apart from the oddity about the idea of having sexual intercourse through an agent,6
the fiction that a boy under
14
cannot achieve an act of sexual intercourse means that
in the eyes of the law no penetration has taken place.
So
once again the father would not
be liable even on the basis of actual encouragement. Since the control principle goes no
*Professor
of
Law, University of Melbourne.
1
(1989) 52 M.L.R. 179.
2
3
4
5
6
The
Modern
Law
Review
53:l January
1990
0026-7961
'Drivers Control and Accomplices' 119821 Crim. L.R.
419
at p. 428.
52 M.L.R. 179 at p. 182.
R.
v
Groombridge
(1836) 7 C.
&
P.
582.
Textbook
of
Criminal
Law
(2nd ed, 1983
at
p.
237).
A
point taken by Professor Williams himself:
ibid
at
p. 371.
75
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