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Thursday, 9 March 1978
Page: 513


The PRESIDENT - Order! You must not impute insincerity to an honourable member.


Senator RYAN - I withdraw that remark. I shall rephrase my reservations about the Prime Minister's undertaking in respect of the report. I wonder what he meant when he said that he seeks public participation with respect to the report. I fear that the public participation he seeks will be similar to the public participation he sought on important and controversial matters such as the Criminal Investigation Bill, the Freedom of Information Bill and the Human Rights Commission Bill. We had the experience of seeing a commitment to public debate but no action. We had what might be fairly described as grandstanding rather than public participation.

Because many people throughout the community believe that the Royal Commission has done valuable work which should be considered seriously I raise this matter tonight. I specifically draw attention to a part of the report which I consider to be thorough, sensitive, accurate and constructive in its recommendations. I refer, as I did in the motion I moved, to that part of the report which gives specific suggestions on ways of restructuring the laws referring to rape with a view to reforming the existing legislation. All honourable senators will be aware that the crime of rape and associated crimes of sexual violence against women pose a serious and grave problem in our community today. I think honourable senators will agree that current laws regarding sexual offences against women are totally inadequate. They are inadequate in deterring the commission of such crimes and enabling successful prosecution of such crimes. They are seriously defective in that they substitute for conviction and punishment of the criminal a form of trial and conviction of the victim.

I do not think there will be any disagreement about the unsatisfactory aspects of the laws relating to rape as they are practised throughout the States and Territories of Australia today. As the Prime Minister suggested, laws relating to rape are, in the main, State matters. Reform of these laws will primarily be the function of State legislators except, of course, in the Australian Capital Territory, which I represent, which is still governed by laws either made or approved by the Federal Parliament. However, I do not think that the structure of the State legislatures with regard to rape laws should deter us from giving consideration to the recommendations of the Royal Commission in this regard. I believe that in such a grave and unsatisfactory matter affecting the entire community it is up to the Federal Parliament to consider recommendations which, after all, were drawn up as a result of a motion moved in the Federal Parliament by Mr Fraser when he was Leader of the Opposition.

I believe also- and we hope it to be the casethat the law relating to rape in the Australian Capital Territory is to be reformed and that such reform is to be initiated by the present Government. That is another reason why it is appropriate to consider these matters here. As honourable senators will be aware, the Government has not yet devolved law-making responsibilities and rights on the local Legislative Assembly. Even if a draft Bill to reform this area of the law were debated in the Australian Capital Territory Legislative Assembly, it would have to be confirmed in this place, and, of course, would need the approval of the Cabinet before any reform could proceed. So for that reason also I raise this matter in this chamber.

I should like to give a very brief summary of the current state of the law which relates to sexual offences against women. With the exception of the law in South Australia, all rape laws in Australia define rape as:

.   . having sexual intercourse with a woman, not one 's wife, without her consent.

The need to prove the lack of consent puts the onus on the alleged victim to prove her innocence; it does not require the defendant to prove his intent. Given the recent Morgan decision of the House of Lords in Britain- decisions of the House of Lords do not compulsorily bind Australian courts but have been ignored only twice in Australian courts- we must agree, that the current state of the law with regard to this basic concept of consent is totally inadequate and leads to continual unfair decisions. The situation following the Morgan case is that even if a woman can prove that she did not consent to the act, the crime of rape is not necessarily proved. Considerable publicity surrounded the Morgan case and honourable senators might remember that in that case the facts were that a husband invited three men to rape his wife and told them that she liked to pretend that she was not consenting. The three men were charged with rape and the husband with aiding and abetting rape. The four were convicted and they appealed. The three people who were not the victim 's husband appealed on the grounds that they believed that Mrs Morgan was consenting. They claimed that they believed this because her husband had said that it was so. I repeat that there was no question that the woman had indicated consent; her husband had said that she was consenting and, despite her words and actions to the contrary, the convicted men claimed that they had grounds for believing that she was consenting. They did not win their appeal but the House of Lords upheld the argument. In upholding the argument I think it demonstrated the overwhelming need for a fundamental change in the law.

I shall now quote from the report of Royal Commission on Human Relationships, which commented on the Morgan case. Page 266 of volume 5 of the report states:

The decision in . . . Morgan's Case excited interest and discussion amongst lawyers and non-lawyers alike. This case raised the issue of whether an accused is entitled to an acquittal if he believed the victim was consenting, notwithstanding that his belief was unreasonable, or whether he had to show reasonable grounds in order to rely on a defence of mistaken belief. The House of Lords, by a three-two majority, held that a mistaken belief in the consent of the victim would constitute a defence even if there was no reasonable basis for it.

I think that that comment on the Morgan case really goes to the crux of the unsatisfactory nature of the current law and the fundamental aspect of the law which must be changed- not just modified, but absolutely changed- if this law is to be as other laws in our community are, namely, for the protection of potential victims or for the satisfactory prosecution of guilty persons. I know of no other case in which unreasonable belief about a certain matter is a defence. I think that acceptance by the House of Lords that any belief, reasonable or unreasonable, is a defence brings into focus the whole question of consent and the area where the law must be changed.

Associated with the Morgan case was the issue of drunkenness. Again, a very disturbing comment about the drunkness was made in the House of Lords debate. On page 269 of volume 5 of the Royal Commission report the following comments appear in respect of the Morgan case:

One of the real problems associated with this case is that it appeared to give a completely new dimension to a possible defence based on drunkenness. Previously it had been established in a number of leading cases that in a crime such as rape, which does not have a specific intention included in its definition, self-induced drunkenness can only provide a defence if it renders the person temporarily insane in a legal sense. It is rare indeed that a person becomes intoxicated to this extent. Nevertheless, the decision in Cogan'sCase appears, at first sight, to provide a back door way of allowing drunkenness as a defence in rape, in situations where the accused, through intoxication, is unable to appreciate that the victim is not consenting. This extension of the defence of drunkenness would be significant in rape, as many offenders are affected by alcohol at the time of the offence.

Again, because the British law still constitutes the basis of decisions which are made in Australian courts, I draw the attention of the Senate to that comment with respect to drunkenness as a defence, which has been so clearly commented on the report of the Royal Commission. Indeed, subsequent to the House of Lords making its decision in the Morgan case, there was a case in which drunkenness was successfully used as a defence. That was Cogan's case. In that case a husband invited a person named Cogan to have intercourse with his wife, Mrs Leak, who did not consent and made her lack of consent clear to Cogan. Cogan was charged with rape and convicted. He appealed to the English Court of Appeal after the Morgan decision was handed down. He won his appeal on the grounds that he had honestly believed in Mrs Leak's consent, even though he had no reasonable grounds for doing so. His drunkenness formed a part of the evidence he put forward in order to win his appeal.

I think it should be clear to honourable senators that these United Kingdom cases demonstrate the total inadequacy of the existing rape law in Australia, because in all States rape law is based on English common law. The Cogan case introduces the possibility of the defence of drunkenness in rape cases. This, of course, would weaken the position of a victim in the rape cases which come to trial in Australia. It is possible that following the decision in this case we will see in Australia a rash of acquittals on the grounds that the defendants were too drunk to notice what their victims were saying or doing. That, I suggest, is a very serious consequence and one which must be averted by a proper and fundamental reform of the law.

The second matter which I think requires fundamental change is that of corroborative evidence. Currently rape law requires corroborative evidence. The problem is that rapists typically do not commit the assault so as to be seen by witnesses. Evidence of assault should be useful in proving rape, but often the rape charge is dropped and an assault charge is substituted. I think that any honourable senators who are familiar with the workings of the law in this respect will be familiar with the activity known as 'plea bargaining', where because of the extreme difficulty of establishing the crime of rape, even though it did take place, victims are often persuaded to reduce the charge to that of assault. This is partly because of the requirement for corroborative evidence and the difficulty in presenting evidence of rape.

One of the very distressing consequences of this requirement is that many women believe that they must have been beaten half to death if they are to get the court to believe that they have been subjected to assault. This is one probable outcome, yet at the same time lawyers, policemen and other persons in authority often advise women not to resist sexual assault once it begins so that they will not be as severely beaten and will not be subjected to even increased violence. The situation for women who find themselves victims of an attack of this kind is totally contradictory.

Debate interrupted.







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