In Getachew v R [2011] VSCA 164, the court curtailed the operation of s36, by effectively confining its operation to the factual question of whether a person is consenting, and not the allied question of whether the accused was aware the complainant was not or might not be consenting.
According to the complainant in Getachew, she and the accused were sharing a bed and she rebuffed his sexual advances several times. She then went to sleep and awoke to find that the accused had anally penetrated her. The accused gave a no-comment record of interview and remained silent at trial. The main argument at the trial was whether or not the accused had actually penetrated the complainant. The trial judge directed the jury that, on the question of awareness of non-consent:
This element will be satisfied if the prosecution can prove beyond reasonable doubt that the applicant was aware that the complainant was either asleep or unconscious or so affected by alcohol as to be incapable of freely agreeing or aware that she might be in one of those states. This element will also be satisfied if the prosecution can prove on any other basis arising from the evidence, that the accused was aware the complainant was or might not be consenting or freely agreeing to the sexual penetration (emphasis added).
On the appeal, the appellant argued that this direction "conflated the complainant's lack of consent with mens rea". The appellant further argued that the legislation allowed the possibility of an honestly held but unreasonable belief in consent and that:
The legislature contemplated, so it was said, the possibility that the prosecution might fail to prove the mental element of the offence of rape even though a belief and consent on the part of the accused was unreasonable because the accused was aware that the complainant might be asleep (emphasis added).The Court of Appeal (Buchanan and Bongiorno JJA and Lasry AJA) accepted this argument, Buchanan JA holding:
Counsel said that it was open to the jury to be persuaded beyond reasonable doubt that the applicant thought the complainant might be asleep and yet think it reasonably possible that the applicant positively believed that the complainant was awake.
I think that the trial judge erred in his instructions as to the element of mens rea in telling the jury that the requirement to prove mens rea was met if the jury concluded that the applicant was aware that the complainant might be asleep. The jury could be satisfied that the applicant was aware of this possibility but at the same time think that it was a reasonable possibility that the applicant believed the complainant was awakeBongiorno JA in a short concurring judgment noted that while there was no evidence of the accused's belief (and so s37AA of the Crimes Act 1958 did not apply), it was incumbent on the prosecution to prove the mental element:
...
The jury may have concluded that there was no protest by the complainant because she was asleep. Equally, if they had been properly instructed, the jury may have concluded that the applicant thought that the complainant might have fallen asleep but accepted that it was a reasonable possibility that the applicant believed that she had finally consented.
The Crown had to prove that the accused was aware at the time of penetration that the complainant was not consenting or might not be consenting to that act.Lasry AJA also found that the direction was erroneous, but would have applied the proviso and dismissed the appeal, as he considered that, based on the facts and the issues raised in the case, a correct direction would have made no difference to the outcome.
Discussion
This decision adopts a very narrow view of the operation of s36. It claims that an accused can be aware of the existence of a s36 factor, or the possible existence of a s36 factor, and yet hold a belief in the contrary state of affairs. There are two, strangely inconsistent, problems I see with this decision.
First (and this court cannot be blamed for this), it continues the fallacy from Worsnop v R [2010] VSCA 188 at [34]-[35] that a belief in consent necessarily excludes the possibility of an awareness that the complainant might not be consenting. As a matter of ordinary logic, belief and awareness are different things, and a person can believe one thing while being aware that they might be wrong. There are a scale of adjectives associated with belief, ranging from optimistic hope at one end to certainty at the other. The current approach of the law has the virtue of simplicity by only requiring a jury to ask "what did the accused believe", without also asking "was that belief sufficiently strong to rationally exclude the possibility of mistake". As long as the statutory definition of rape includes a state of mind equivalent to recklessness (aware that the complainant might not be consenting), it seems to me that belief for this purpose could only be a sufficiently strong belief that could be described as "certain".
Secondly, Getachew asserts, inconsistently with Wornsop, that the jury could be satisfied that the accused was aware the complainant was or might have been asleep while still accepting the reasonable possibility that the accused believed that the complainant was consenting. This then introduces a disjunction between belief and awareness (which I am critical of Worsnop for failing to do), but places belief as the dominant state of mind. In my view, this gives insufficient weight to the possibility of the prosecution proving rape on the basis that the accused was aware that the complainant might not be consenting. The only way this can be reconciled is if the court accepts counsel's implicit argument that using s36 at the stage of assessing mens rea is to conflate two discrete issues. But this means that a complainant can be found not to consent for the purpose of the factual question of consent by relying on s36, an accused can be aware that, for the purpose the factual question, the complainant is not (or might not be) consenting, due to an awareness of that s36 factor (or awareness of the possible existence of a s36 factor), and yet hold the inconsistent (and arguably irrational) belief that the person was consenting. At its extreme, this would allow a person who obtains consent due to duress to say that he was aware the complainant was only consenting due to duress, but thought that was enough anyway. That surely cannot be the correct operation of s36.
Hopefully this decision will prompt a legislative response, which can also address the difficulties created by Worsnop. This could restore so-called "communicative model" of consent and hopefully implement it in a way that is abundantly clear within the legislative text.
Indeed! The facts of Getachew are also a great example of how dangerous an over-emphasis on beliefs can be in practice. The following passage in Buchanan's judgment is eye-opening:
ReplyDelete"In my opinion, however, there were facts deposed to by the complainant that were capable of founding an inference that, at the moment when the penetration commenced, the applicant believed the complainant was consenting. The complainant said that she protested twice when the applicant touched her. The applicant then placed his body immediately behind the complainant, raised her skirt and pulled down her underwear and commenced to penetrate her. Critically, during these manoeuvres, which involved a degree of physical manipulation by the applicant, there was no demur on the part of the complainant. The jury may have concluded that there was no protest by the complainant because she was asleep. Equally, if they had been properly instructed, the jury may have concluded that the applicant thought that the complainant might have fallen asleep but accepted that it was a reasonable possibility that the applicant believed that she had finally consented. Unfortunately the trial judge’s charge apparently precluded the latter conclusion"
But, as Lasry points out in his dissent, common sense precludes the latter conclusion. How could a person who is aware that someone might be asleep form a belief that her complete lack of response to physical advances is consent? Moreover, why was such an unlikely scenario on the table at all given that the defendant's defence was based entirely on an absence of penetration?
I agree that the evidence of a belief in consent was so slight that it is hard to see why this was even on the table.
ReplyDeleteIt is, however, consistent with the very strict approach Victorian courts tend to take to the obligation from Pemble to direct the jury on all issues that arise on the evidence. The VLRC called for reforms to that issue, despite serious opposition from criminal barristers and it is an issue where, in my opinion, there are powerful and persuasive views on each side. The presumption of innocence may mean that the prosecution must establish every element regardless of the position of the defence, even those elements that are not contested because it would require the defence to run mutually inconsistent defences.
Unexpectedly, Getachew v R has even managed to excite the Herald Sun, which today included several comments from victims of crime support personnel condemning the decision.
ReplyDeleteI was also surprised that Getachew seems very slimly reasoned on this point. The reason for that may have been revealed today, as Neal v R [2011] VSCA 172 deals with the same point. Here is what the court (Nettle and Redlich JJA and Kyrou AJA) have to say:
"Section 37AAA(c) provides that, if a jury is satisfied that a circumstance specified in s 36 exists in relation to a complainant, the jury must find that the complainant was not consenting. If s 37AAA(c) stood alone, it would be logical to suppose that, if a jury were satisfied that an accused was aware that a circumstance specified in s 36 existed in relation to a complainant, the jury should also find that the accused was aware that the complainant was not consenting. But s 37AAA(c) does not stand alone. Section 37AA provides that, in deciding whether the accused was aware that the complainant was not consenting, the jury is to have regard inter alia to any evidence of belief and, in the case of a proceeding in which the jury finds that a circumstance specified in s 36 exists, to whether the accused’s belief was reasonable having regard to ‘whether the accused was aware that that circumstance existed in relation to the complainant’. Section 37AA was introduced to ensure that the directions to a jury were sufficiently focussed upon circumstances relevant to disproof by the prosecution of an accused’s asserted belief that the complainant was consenting. This accords with the conventional approach that reasonableness of belief bears upon the question of whether the belief was held. The applicant’s awareness of the relevant s 36 circumstance informs the reasonableness of any belief that the applicant claimed to have held as to the complainant’s consent. Section 37AA thus contemplates the possibility of cases in which an accused was aware that a s 36 circumstance existed in relation to a complainant but, because of evidence that the accused believed the complainant was consenting, then notwithstanding that s 36 circumstance, the jury may not be satisfied beyond reasonable doubt that the accused knew that the complainant was not consenting or might not be consenting. Read in the context of s 37AA, s 37AAA(c) cannot be taken to mean that it will be enough to establish that an accused was aware that a complainant was not consenting or might not be consenting to show that the accused was aware that a circumstance specified in s 36 existed in relation to a complainant."
This reasoning is more compelling than the court deployed in Getachew, I still considered it flawed. Section 37AA does require the jury to consider whether the accused was aware of the existence of a s36 factor when considering whether the accused's belief in consent was reasonable. But this is no more than a statement of the obvious, for an awareness of a s36 factor makes a belief in consent patently unreasonable and it is only proper that the jury should consider that issue when deciding whether the accused was aware that the complainant was not consenting. Indeed, I would say it makes the belief unsustainable, and if the legislation had not mentioned awareness of s36 as part of s37AA, the argument would be made that this was a deliberate omission and so s36 is irrelevant to that question. And the court goes close to acknowledging at paragraph 80 that awareness of a s36 factor makes belief in consent unsustainable but regretably, still holds that it was an error take the issue away from the jury.
Wow, Neal is a very interesting case. I agree with you that the belief point is better reasoned there, and I agree that it is still wrong.
ReplyDeleteBut on the Pemble point, I query whether it applies. The mens rea element of rape is still 'aware or might be aware in non-consent'. 'Belief in consent' is, if Worsnop is right, merely a defence. So the accused has to discharge an evidential burden before it is left to the jury. (I wrote an article about this in 1994, citing many jurisdictions, notably Canada and, in its common law days, Victoria..) What evidence was there in this case of Getachew's beliefs?
I'm very happy that the Hun has picked up this ( and not that surprised.) the facts could not raise the law reform issue more clearly and the poor reasoning of the VCA recalls the bad old pre-reform days. I'd be surprised if statutory reforms don't follow eventually.