Monday, December 19, 2011

The continued unhappy state of the law of consent

The High Court has listed the appeal hearing in R v Getachew for the end of February and the outline of submissions for both the DPP and the accused are now available on the High Court website. It looks like the DPP is using the occasion to take a shot at the earlier authority of Worsnop, as it argues that the Victorian Court of Appeal has misstated the law with its focus on belief in consent, rather than the statutory language of knew that the complainant was not or might not be consenting.

Despite that development, the Court of Appeal is still handing down decisions dependent on the line of authority developed in Worsnop. The latest is GBD v R [2011] VSCA 437, a decision which highlights the absurdity of the current state of the law in this area. In a strongly worded judgment, Harper JA said of the principal offender that he
abandoned any concept of decency he might otherwise have had. The appellant was some distance behind; but his conduct was nevertheless such that nobody with any sense of responsibility to others would have engaged in it. The conduct of both men was abhorrent to all notions of civilised behaviour.
The principal offender plied two young girls of 13 and 14 with significant quantities of speed before engaging in extensive sexual conduct with them. GBD was a friend of the principal offender and was invited to join in this behaviour. The issues at trial concerned his belief in the age of the girls and his belief in consent. Ashley JA granted leave for the appellant to make a Worsnop argument, and the Crown, consistent with the state of the law as it stands under Worsnop initially conceded the point. At the leave hearing, Tom Gyorffy SC, fresh from writing the DPP's submissions to the High Court for Getachew, sought to withdraw that concession and argue that Worsnop was wrongly decided. Sadly, this point received only the following treatment:

After hearing argument, the Court refused the application.
It is disappointing that such a significant issue is dismissed in such a summary fashion.

On the substantive issue of whether to allow the appeal, Harper JA stated:
Section 36 of the Crimes Act 1958 provides that, for the purposes of those subdivisions of the Act which deal with rape and indecent assault, incest, sexual offences against children and sexual offences against persons with a cognitive impairment, consent means free agreement. Furthermore, the section goes on to provide that circumstances in which a person does not freely agree to an act include those in which the person is so affected by drugs as to be incapable of freely agreeing. Emphasis is given to the importance of these provisions by s 37A, which sets out the objects of the relevant subdivisions. These are (a) to uphold the fundamental right of every person to make decisions about his or her sexual behaviour, and to chose not to engage in sexual activity; and (b) to protect children, and those with cognitive impairments, from sexual exploitation.
26 Those objectives were trashed on 13 December 2008. That is strong language, but it is used deliberately. To groom two girls, a mere 14 and 13 years of age respectively, with alcohol and drugs, to then take them to a private home and, in the laundry of that house, inject them with more drugs, and then to indulge with them in a wide variety of sexual acts over an extended period, is exploitation of the worst kind. It is no excuse that they were thought to be a little older. They were strangers. The law should strongly discourage any adult in those circumstances from taking risks.
27 Y has been punished for his part in this affair. The gravity of the appellant’s misconduct was considerably less. On the other hand, the appellant knew something of the episode in the laundry, and either knew of the general nature of the activities being indulged in by Y, or deliberately shut his eyes to them. There being no evidence to the contrary, it was open to her Honour to find for sentencing purposes – indeed, the conclusion was inevitable – that he knew that the drugs were administered to the complainants for the purpose of inducing their consent to whatever acts, however gross, he and (more especially) his co-offender, were minded to subject them.
28 It was in these circumstances that he, on his own admission, digitally penetrated the vagina of one of the two victims. The jury might well have concluded that she did not give her free consent. Anyone with a normal capacity for insight would have known for a certainty that this was so. Even assuming that the appellant was not endowed with the usual capacities of humankind, and believed that she was consenting, he must have known that she might not be giving her free consent to that act; that was the point of what must have been significant expenditure on the acquisition of speed, and of her subsequently being injected, by the appellant’s friend and to the appellant’s knowledge, with methylamphetamine. Nevertheless, on the authority of Worsnop, the law cannot, so long as the Crown fails to prove the absence of his belief in her consent, convict him. Accordingly, the appeal must on this ground be allowed and the conviction on count 19 must be quashed. But, in my opinion, the gap in the law which was identified in Worsnop cries out for the remedial intervention of the legislature.
As far as I am concerned, paragraph 28 perfectly demonstrates how appellate authority in this area has gone wrong. Despite section 36section 38, introduces an unjustified limitation on the efficacy of the definition of consent in section 36 and effectively introduces a fifth element of disproof of belief in consent which is not found anywhere in the language of the offence, and is barely discernible in the language of section 37AA. As Harper JA says, this is a matter that cries out for intervention. Time will tell whether the respite from this unsatisfactory state of the law comes from the High Court or the Victorian Parliament.

1 comment:

  1. Based on the HCA transcript, it looks like the CoA is going to get a drubbing!