Suggestions On Reform Of The Law Of Rape In South Australia

1602 words - 6 pages

IntroductionThe law of rape in South Australia is governed by the common law and the Criminal Law Consolidation Act 1935 SA. Recently, there have been inquiries as to the low conviction rate for sexual assault offences (1.8 per cent of reported rape cases against adult women resulted in convictions in 2002), which might indicate the insufficiency of law in this area .There are many reasons for the low conviction rate. Among all, emphasis will be put on the steps to establish a conviction. That is, the requirement for the prosecution to prove beyond reasonable doubt. In South Australia, the current law requires the finding of fault (mens rea) on the part of the accused. Consequently, it has been argued among commentators that it is very difficult, if not impossible, to establish the mens rea requirement. Also, controversies arise in the process of finding mens rea.In the face of this, it is suggested that the approach of strict liability should be adopted. An offence is a strict liability offence if the Crown only has to prove that physical elements (actus reus) of the offence have taken place. The Crown does not have to prove any fault element, such as a particular intention or awareness on the part of the accused . Obviously, the adoption of strict liability would be more favourable to the complainants. But should the law change? In the following sections, the current law of rape in SA, Queensland, Victoria and New South Wales will be focused, together with some law reform commitment in other jurisdictions outside SA.Current law in South AustraliaAccording to s.48 Criminal Law Consolidation Act 1935,A person who has sexual intercourse with another person without the consent of that other persona) knowing that that other person does not consent to sexual intercourse with him or her;b) being recklessly indifferent as to whether that other person consents to sexual intercourse with him or her,Shall (whether or not physical resistance is offered by that other person) be guilty of the felony of rape and liable to be imprisoned for life.However, consent and recklessness are not defined in the Act, and are governed by common law. To establish mens rea, the prosecution has to prove, beyond reasonable doubt, that the accused knew the non-consent of the complainant (intention). It is somehow difficult to prove such intention as it is a subjective state of mind of the accused at the time of sexual intercourse. The objective standard is not employed.IntentionIn R v Brown , an appeal against for rape, the counsel for the accused successfully rebutted that in order to establish a good defence, the honest belief by the accused should be reasonable. That means, as long as the accused has bona fide belief that the complainant did consent to sexual intercourse, it does not matter whether he has a reasonable ground to support such a belief. The appeal was, however, dismissed because it would be unlikely to have a different verdict despite this misdirection to the...

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