Rape Ruling On Drunken Consent
THE nation's highest court made it clear yesterday that
men must get unambiguous consent to sex or face the risk
of a rape conviction and possible 14-year jail term.
Even if a man reasonably believes it is likely a drunk or
half-awake woman is consenting to sex, he should still make
sure, otherwise he will be considered "reckless" and therefore
guilty of rape in NSW and South Australia.
The findings were made yesterday when the High Court dismissed
an appeal by Stephen Garry Banditt against his rape conviction
on the legal definition of "reckless" in deciding on the issue
Banditt, then aged 27, was sentenced to five years' jail in 2003
for the rape of a 25-year-old woman on October 6, 2001, at
Bellingen in northern NSW.
The pair had been drinking at the same hotel earlier in the evening.
The woman had consumed seven beers, a marijuana joint and a "painkiller".
According to Banditt, she was "vaguely awake" at the time of the assault.
Stephen Odgers SC, representing Banditt, argued that courts in NSW and South
Australia had held that the man was reckless if he was aware of the possibility
the woman's apparent consent was not real consent, and thus had not made
certain she was really agreeing to sex.
The critical argument concerns the legal definition of recklessness in a
Mr Odgers had told the four High Court judges of the hypothetical scenario
of a couple who go on a date on a Saturday night.
The woman at first tells the man she does not want to have sex, but after
a few drinks she consents in no uncertain terms. The man is aware it is
possible the woman's consent is alcohol-related. Is he guilty of rape if
he does not wait for her to sober up before they have sex?
Yesterday's decision confirms that, in NSW and South Australia, a man who
takes the risk and has sex will be guilty of rape if the jury is satisfied
the woman did not really consent. Even if the jury thinks it was reasonable
for the man in the heat of the moment not to make sure the woman's consent
was genuine, the judge must direct them to convict him.
Mr Odgers argued that this direction, given in the original District Court
trial of Banditt, was incorrect.
The High Court judges yesterday unanimously dismissed the appeal, holding
that judge David Freeman's direction to the jury did not misstate the concept
of recklessness. Judge Freeman had told the jury that if an offender were aware
there was a possibility a woman was not consenting, but proceeded anyway, it
amounted to recklessness.
Justice Ian Callinan said that the definition of recklessness, the key question
of the appeal, should be determined by the jury.
"(Whether) one has been reckless as to the willingness of the other strikes me as
quintessentially a jury question, the answer to which a dozen or a thousand words
of elaboration (by lawyers) can add nothing, except perhaps uncertainty," he said.
"'Reckless' means reckless, just as 'beyond reasonable doubt' means exactly that."
The ruling does not apply to other states and territories, because they have
different definitions of recklessness in relation to consent.
Most impose objective tests of the mental element of rape, so that an honest
belief of consent must be reasonably held to negate criminal responsibility.