Intro to sexual offences

• Can be thought of as the harm these offences entail
  • Affronts sexual autonomy, and integrity
• At common law, sexual crimes were classified as labels such as rape, sodomy, fornication and indecent assault
• Rape is not a result crime; crime has to be defined to draw distinction as sexual penetration is a serious crime when consent is missing.

Common law rape

• Common law rape involved non-consensual penetration, however slight, of the vagina by the penis.
• Neither complete penetration nor ejaculation is necessary - Holland v R (1993) 117 ALR 193; ALJR 946
• Non consent means offence could be committed through a conscious refusal or where a woman was unconscious
• If woman was fully conscious + mental capacity not in doubt, important the jury is aware that rape is only committed when:
  • act of penetration was against her will - R v Wilkes and Briant [1965] VR 475
• Women and gays cannot be guilty under common law;
  • However, woman can be convicted as an accomplice to an act of rape performed by a man - R v Ram and Ram (1893) 17 Cox CC 609

Irrebuttable provisions:

• Boy under the age of 14 was incapable of rape - R v Waite [1892] 2 QB 600
• Husband cannot be guilty of rape -

Statutory provisions

• s 35A - sexual penetration
• s 35B - touching
• s 36 - consent
  • s 36(2) - advances on communicative model of consent, prosecution needs to prove how a person does not consent.
• s 36AA - circumstances in which a person does not consent