Director of Public Prosecutions v Tan Yeong (a pseudonym)[1]

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0056

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
TAN YEONG (A PSEUDONYM)[1]	Respondent

[1]To avoid the possibility of prejudice in the respondent’s trial, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGES:	NIALL, T FORREST and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2022
DATE OF JUDGMENT:	26 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 179
JUDGMENT APPEALED FROM:	DPP v [Yeong (a pseudonym)] (Unreported, County Court of Victoria, Judge Wilmoth, 27 April 2022)

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CRIMINAL LAW – Interlocutory appeal – Respondent charged with rape – Respondent removed condom during sexual intercourse – Complainant stated condom to be worn during sexual intercourse – Whether judge erred in ordering permanent stay of rape charge – Trial judge’s decision granting stay set aside – Leave to appeal granted – Appeal allowed.

Papadimitropoulos v The Queen (1957) 98 CLR 249; R v Mobilio [1991] 1 VR 339, considered.

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Counsel
Applicant:	Ms M Mahady with Mr G Buchhorn
Respondent:	Mr D Dann QC with Ms C Boston
Solicitors
Applicant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Galbally & O’Bryan

NIALL JA
T FORREST JA:

Introduction

The respondent to this interlocutory appeal was charged on indictment with two sexual offences, namely one charge of rape,[2] and in the alternative, one charge of procuring sexual penetration by fraud.[3] On the night in question, the respondent and the complainant became sexually intimate in the home of the complainant after sharing a meal earlier in the evening. On the prosecution case, the complainant agreed to anal sexual intercourse. The prosecution alleges that the complainant freely agreed with the respondent that the respondent could insert his penis into the complainant’s anus provided that the respondent wore a condom. It is alleged that intercourse commenced on that basis. At some point, so the prosecution alleges, the respondent withdrew his penis, removed the condom, and then again penetrated the complainant’s anus. It is that act of penetration that forms the basis of the criminal charges.
[2]Crimes Act1958, s 38 (‘the Act’). Reference in these reasons to the Act and its various sections are a reference to the legislation as it existed at the time of the alleged offence.
[3]Ibid s 57(2).
The prosecution says that the respondent is guilty of rape on the basis that the complainant did not consent to the act of sexual penetration or that his consent was vitiated by the complainant’s mistaken belief, induced by the respondent, that a condom was being worn during intercourse.
On the application of the respondent, a judge of the County Court permanently stayed the charge of rape on the basis that, on the prosecution case at its highest, the complainant consented to the act of penetration and any mistake as to whether a condom was being used was irrelevant to that consent.[4] The Director of Public Prosecutions has sought leave to appeal the Ruling and seeks an order lifting the permanent stay.
[4]DPP v [Yeong (a pseudonym)] (Unreported, County Court of Victoria, Judge Wilmoth, 27 April 2022) (‘Ruling’). The judge certified the Ruling in accordance with s 295 of the Criminal Procedure Act 2009.
For the reasons that follow, we would grant leave to appeal, allow the appeal and order that the interlocutory decision be set aside.

The facts

The following is largely taken from the facts as recorded by the judge in her Ruling.[5]
[5]Ibid [4]–[11].
The respondent and the complainant met in Melbourne in late 2010 and shared some limited intimacy, before the respondent moved to Sydney some months later. In early 2012, they met again in Melbourne, but as time passed they lost contact until 2017. On 26 May 2017, the respondent told the complainant by text message that he was coming to Melbourne on the evening of 23 June and asked if he could stay the night with the complainant. It was agreed that the respondent would stay with the complainant on the night of 23 June and return to Sydney the following evening.
They met for dinner in Melbourne on Friday, 23 June. The meal included alcohol, which they shared. During dinner, the respondent and complainant discussed HIV exposure prophylaxis (‘PrEP’), which is a preventative medication for HIV.
The respondent informed the complainant that he was taking this medication. The complainant stated that he was not and explained why he had decided against it. Specifically, the complainant made clear that he always used a condom during sexual intercourse and that he would continue to do so even if he was to take PrEP in the future.
After dinner they went to the complainant’s house where they drank more wine. Later, they engaged in consensual sexual activity, during which the complainant asked the respondent to wear a condom. The respondent assured the complainant he would not penetrate him without one. The complainant handed the respondent a condom and lubricant, and the respondent applied the condom. He then penetrated the complainant’s anus with his penis.
During sexual intercourse the complainant checked several times that the condom was still in place, and at one stage the respondent told him to stop checking because it was fine and that he was watching it.
Eventually the complainant could no longer feel the condom and asked if it was still okay. The respondent answered that he had taken it off. The complainant immediately stopped the intercourse and saw the condom on the bed. He asked the respondent why he had removed the condom. The respondent said he was sorry and assured the complainant his health was not at risk.
The following morning the complainant recorded his conversation with the respondent. The respondent again apologised and said there was no cause for concern. He said he took the condom off towards the end of the penetration. The respondent then left the house.

Statutory provisions

The relevant provisions pursuant to which the respondent is charged are s 38 and s 57(2) of the Act.[6]
[6]Section 57(2) of the Act was amended by the Crimes (Rape) Act 1991. Section 45 was enacted by the Crimes Amendment (Sexual Offences) Act 2016, and is the equivalent charge to s 57(2).
The objectives of the relevant sub-divisions are under s 37A of the Act:
The objectives of Subdivisions (8A) to (8G) are—
(a)to uphold the fundamental right of every person to make decisions about his or her sexual behaviour and to choose not to engage in sexual activity;
(b)to protect children and persons with a cognitive impairment from sexual exploitation.
Section 38 is found in subdivision (8A) in div 1 of pt 1 of the Act:
38 Rape
(1) A person (A) commits an offence if—
(a)A intentionally sexually penetrates another person (B); and
(b)B does not consent to the penetration; and
(c)A does not reasonably believe that B consents to the penetration.
(2)A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).
(3)A person does not commit an offence against subsection (1) if the sexual penetration is done in the course of a procedure carried out in good faith for medical or hygienic purposes.
In order to understand the above provisions, it is important to refer to some definitions. Section 37C provides that for the purposes of that subdivision, sexual penetration is dealt with in s 37D.
Section 37D relevantly provides:
(1) A person (A) sexually penetrates another person (B) if—
(a)A introduces (to any extent) a part of A’s body or an object into B’s vagina; or
(b)A introduces (to any extent) a part of A’s body or an object into B’s anus; or
(c)A introduces (to any extent) their penis into B’s mouth; or
(d)A, having introduced a part of A’s body or an object into B’s vagina, continues to keep it there; or
(e)A, having introduced a part of A’s body or an object into B’s anus, continues to keep it there; or
(f)A, having introduced their penis into B’s mouth, continues to keep it there.
…
(5)For sexual penetration by the use of a penis, it does not matter whether or not there is emission of semen.
Note
References to A and B are included to help readers understand the definition of sexual penetration. The same technique is used in the offence provisions involving sexual penetration. This does not mean that A and B in this section are the same persons as A and B in the offence provisions.
Section 57 deals with procuring sexual penetration by threats or fraud and provides:
57      Procuring sexual penetration by threats or fraud
(1)A person must not by threats or intimidation procure a person to take part in an act of sexual penetration.
Penalty:         Level 5 imprisonment (10 years maximum)
(2)A person must not by any fraudulent means procure a person to take part in an act of sexual penetration.
Penalty:         Level 6 imprisonment (5 years maximum)
Section 57 does not utilise the definition of ‘sexual penetration’ found in s 37D, but uses the definition in s 35, which is in materially the same terms, and is as follows:
sexual penetration means—
(a)the introduction (to any extent) by a person of his penis into the vagina, anus or mouth of another person, whether or not there is emission of semen; or
(b)the introduction (to any extent) by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes;
Consent, for both ss 38 and 57, is addressed in s 34C in the following terms:
(1)For the purposes of Subdivisions (8A) to (8D), consent means free agreement.
(2)Circumstances in which a person does not consent to an act include, but are not limited to, the following—
(a)the person submits to the act because of force or the fear of force, whether to that person or someone else;
(b)the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;
(c)the person submits to the act because the person is unlawfully detained;
(d)the person is asleep or unconscious;
(e)the person is so affected by alcohol or another drug as to be incapable of consenting to the act;
(f)the person is incapable of understanding the sexual nature of the act;
(g)the person is mistaken about the sexual nature of the act;
(h)the person is mistaken about the identity of any other person involved in the act;
(i)the person mistakenly believes that the act is for medical or hygienic purposes;
(j)if the act involves an animal, the person mistakenly believes that the act is for veterinary, agricultural or scientific research purposes;
(k)the person does not say or do anything to indicate consent to the act;
(l)having initially given consent to the act, the person later withdraws consent to the act taking place or continuing.
Sections 46 and 47 of the Jury Directions Act 2015 (‘the JDA’) deal with the directions that a trial judge may give if requested by either the prosecution or defence under s 12 of that Act. Section 46 relevantly provides:
(1) The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on consent.
(2) In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify—
(a) in the case of a request for a direction on the meaning of consent—one or more of the directions set out in subsection (3); or
(b)in the case of a request for a direction on the circumstances in which a person is taken not to have consented to an act—one or more of the directions set out in subsection (4).
Note
Section 36 of the Crimes Act 1958 provides that consent means free agreement. That section also sets out circumstances in which a person has not consented to an act.
(3) For the purposes of subsection (2)(a), the prosecution or defence counsel may request that the trial judge—
(a) inform the jury that a person can consent to an act only if the person is capable of consenting and free to choose whether or not to engage in or allow the act; or
(b) inform the jury that where a person has given consent to an act, the person may withdraw that consent either before the act takes place or at any time while the act is taking place; or
(c) inform the jury that experience shows that—
(i) there are many different circumstances in which people do not consent to a sexual act; and
(ii) people who do not consent to a sexual act may not be physically injured or subjected to violence, or threatened with physical injury or violence; or
…

The judge’s ruling

The judge accepted the respondent’s submissions, which are set out below, and concluded that the charge of rape should be permanently stayed. The judge noted that s 57 of the Act operates as an alternative to rape and that it continues to have work to do.[7]
[7]Ruling, [42].

The Director’s submissions

The Director submits that the statutory definitions of rape and consent have evolved to reflect community expectations and adopt a communicative model of consent. She submits that importance is placed on the sexual autonomy of each person and their ability to choose with whom and how they engage (and not engage) in sexual activity. She also notes that ‘consent’ encompasses the concepts of both ‘freedom’ and ‘choice’.
In referring to the relevant provisions of the Act and the JDA, the Director submits that the statutory meaning of rape and consent are broad enough to cover instances of sexual penetration such as that with which the respondent is charged.
The Director submits, given how closely proximate and intrinsically linked a condom is to the physical activity of sexual penetration, that sexual penetration with a condom and sexual penetration without a condom are different in a material way, and that consent to penetration with a condom does not necessarily extend to consent to penetration without a condom.

The respondent’s submissions

The respondent submits that on his plain grammatical reading, and as they are relevant to the present facts, the effect of ss 38(1), 35 and 34C(1) of the Act is that Person A commits the offence of rape if:
(a)A intentionally introduces (to any extent) his penis into the anus of another person (B), whether or not there is emission of semen; and
(b)B does not freely agree to the introduction (to any extent) of A’s penis into his anus; and
(c)A does not reasonably believe that B consents to the introduction of A’s penis into his anus.
The respondent submits that the complainant freely agreed to the introduction of the respondent’s penis into his anus, and that whether or not the complainant imposed a condition on the penetration that the respondent wear a condom is irrelevant to the elements of the offence of rape.
Next, the respondent submits that the effect of the Director’s submissions is to add a circumstance to the list in s 34C(2) of the Act which exceeds the legitimate role of construction and would require a rewriting of the provision. Further, he submits that the Director’s reliance on s 34C(2)(g), which provides that a person does not consent to the sexual penetration where he or she is ‘mistaken about the sexual nature of the act’, is misplaced. That is because the provision is not designed to capture a mistake about the ‘nature of the sexual act’, but whether the relevant act is sexual in nature.
The respondent submits that his construction arises clearly from the text and is supported by two aspects of context: legislative history and the existence of the specific offence of procuring sexual penetration by fraud.
As to the legislative history, the respondent referred to and relied on his submissions filed in the County Court in support of his application for a permanent stay. Those submissions set out the history of the law of rape, from the common law[8] to the introduction of the statutory form of rape and consent.
[8]Papadimitropoulos v The Queen (1957) 98 CLR 249; [1957] HCA 74 (‘Papadimitropoulos’); R v Mobilio [1991] 1 VR 339 (‘Mobilio’).
The respondent submits that the exercise in statutory interpretation has to concentrate on the words of the legislation – when that exercise is engaged in, there is no support for the Director’s construction of the various provisions or the results she contends for.
In regards to the various legislative attempts to clarify and expand the definition of consent, the respondent notes that none of the circumstances in s 34C of the Act would cover the alleged conduct by the respondent. Further, he notes that Parliament has incrementally clarified what the act of sexual penetration involves, and that over time the act of sexual penetration has been developed to include the introduction of the penis into the anus, and subsequently the introduction of the penis into the mouth. He says that these are different forms of penetration that Parliament has thought necessary to legislate, but that Parliament had not legislated for the type of conduct the respondent is charged with at the time of the alleged offending.
The respondent submits that the plain reading of the statutory language reveals no support for the concept suggested by the Director that the physical accoutrements or connections to the particular act of penetration should be somehow read into the act of penetration. He says to do so would involve importing concepts into the statute that are just not there.
As to the offence of procuring sexual penetration by fraud, the respondent submits that its existence raises even more doubt as to whether the alleged conduct would amount to rape. He submits that non-satisfaction as to conditions or consequences of sexual penetration can be dealt with pursuant to the procuring sexual penetration by fraud offence.
In regards to the international cases referred to by the Director, the respondent submits that the Court should be careful in relation to what assistance can be gained from these decisions given the different legislative schemes that exist.

The prosecution case

On the prosecution case, the complainant agreed to sexual penetration by the respondent, but that agreement was subject to the respondent wearing a condom during intercourse. The prosecution case is that the respondent deliberately removed the condom before the last act of penetration commenced. The prosecution submits that the act of penetration that occurred was different to that to which the complainant consented, with the consequence that he did not freely agree to the act of penetration. Alternatively, the complainant’s apparent consent to the act of penetration was not a real or genuine consent because it was given in the mistaken belief that a condom was worn and he was deceived in that respect by the respondent.
As already noted, the respondent submits that the complainant consented to sexual intercourse and that is what occurred. He says that for the purpose of s 38 of the Act, consent relates to the physical act of intercourse as defined by s 37D and whether or not a condom is used is irrelevant to that question. If the complainant was mistaken as to whether or not a condom was in place, that mistake did not go to the nature or character of the sexual act, which was well understood and agreed to by the complainant, and therefore did not vitiate or undermine the consent that he had given.

The ultimate question for this Court is whether, on the facts that the prosecution would seek to establish at trial, it would be open to a jury, properly instructed, to convict the respondent on a charge of rape in breach of s 38 of the Act as it stood on 23 June 2017. The determination of that question, and therefore the application for leave to appeal, turns on a question of construction.
The principles that must be applied to the construction of legislation generally also apply to criminal statutes.[9] As Kiefel CJ and Keane J explained in R v A2:
A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any ‘loose’ construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction.[10]
[9]R v A2 (2019) 269 CLR 507; [2019] HCA 35.
[10]Ibid 525–6 [52] (citations omitted).
That process requires this Court, in the first place, to consider the text Parliament has used.[11] The text must be understood in the context in which it is found. That context includes the object or purpose of the subject provisions and other provisions of the Act, which must be read so as to provide, to the extent the language allows, a coherent whole. It is legitimate to take into account extrinsic material that may cast light on the purpose and meaning of the provisions. Legislative history, and the form of the law as it was understood at the time of the enactment, or amendment, of the relevant provision, may also provide some assistance in the task. However, the task remains one of construction of the text of the legislation. For that reason, the task must always end with the text.
[11]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ); [2009] HCA 41.

The text

The text of s 38 of the Act, when read with s 34C, requires that the prosecution prove, to the criminal standard, that the accused person introduced his penis into the anus of person B without that person’s consent. Consent means ‘free agreement’, and the subject matter of the consent is the physical act of penetration.
The words ‘free agreement’ convey that the person voluntarily agreed to the act of penetration. The phrase also carries with it the notion that the person consenting to the act is not overborne, that the agreement is genuine, and that it is informed, at least to some extent. It requires that the person has the capacity to understand, and agree to, the physical act, including its sexual dimension. The words imply a freedom of choice and may often be expressed or explained as the antithesis of some other state, such as compulsion, and reflects a freedom from coercion or control.
The implication that s 34C(1) is a reflection of a freedom to choose whether or not to engage in a sexual act is supported by the ‘objectives’ of subdivisions 8A to 8G which are found in s 37A, and include upholding the ‘fundamental right of every person to make decisions about his or her sexual behaviour and to choose not to engage in sexual activity’. It is also supported by s 46(3)(a) of the JDA which allows the prosecution to seek a direction about consent that informs the jury that ‘a person can consent to an act only if the person is capable of consenting and free to choose whether or not to engage in or allow the act’.
There are two other aspects of the text that need to be mentioned: s 34C(2) and s 57 of the Act.
Section 34C(2) does not provide a definition of consent nor does it expressly modify the definition of consent in s 34C(1). Rather, it identifies some circumstances in which there is no consent. Where the prosecution proves that one or more of the circumstances listed in s 34C(2) exists, then the absence of consent is established. In those circumstances, it is not necessary for the trier of fact to go on to assess whether or not there was an absence of free agreement on the part of the complainant.
In some of the circumstances listed in s 34C(2), there may be a form of consent to the physical act but, by operation of s 34C(2), that consent is treated as vitiated or inoperative. That is, there may be apparent but not real consent. In other circumstances, such as where the victim is unconscious, there will be no consent at all, but the provision relieves the prosecution of the need to prove an absence of consent independently of proving the existence of the relevant circumstance on which it relies. It follows that the legislation contemplates that, at least in some circumstances, there will be no consent because an apparent consent is vitiated because of a mistake on the part of the consenting party. The question then arises as to whether the only types of mistake or misunderstanding on the part of a complainant are those expressly provided for in sub-ss 34C(2)(g), (h) and (i). Although s 34C(2) provides for the consequences of certain mistakes, there is nothing in the text that indicates that it is only those mistakes that might be relevant to consent.
Further, in considering the scope of the phrase ‘free agreement’, it is relevant to observe that it is to be applied in the context of intimate human relations that may be associated with feelings ranging from romantic love to diffidence and changing social or cultural norms. For that reason, whether the complainant has freely agreed to the penetration is a question of fact, which in a trial will be for the jury to determine. In that context, and given the width of the language in s 34C(1), there would appear to be no reason to be prescriptive of the kinds of circumstances that might be relevant to whether there is free agreement but which are not specified in s 34C(2).
The express qualification in s 34C(2) that the circumstances include ‘but are not limited to’ the listed matters, suggests that s 34C(2) is not to have a limiting effect on s 34C(1). That does not mean that it is permissible for a court to add to the list by treating an additional circumstance as if it were included on the list. In that sense, the list is exhaustive. What the qualification does make plain, however, is that where the prosecution relies on matters that are not included on the list, it will be necessary for the prosecution to show that the person did not consent in the sense that he or she did not freely agree to the act of sexual penetration, addressing that question under s 34C(1). In assessing that question, the fact that other matters, even if they may bear some similarity to the facts in question, are included on the list in s 34C(2), will not be decisive.
It follows that as a matter of text, the meaning of ‘consent’ in s 34C(1) is not circumscribed or qualified by the fact that one or more circumstances is included in s 34C(2). Indeed, there may be overlap in a particular case. For example, s 34C(1) is plainly capable of capturing the case in which a person is incapable of understanding the sexual nature of the act. However, because that issue is addressed under s 34C(2), there is no occasion to consider whether the fact would fall under the general consent definition in s 34C(1). That does not mean that s 34C(1) should be read down so as to avoid any potential overlap.
The respondent submits that s 34C must be construed in light of s 57 which expressly deals with fraud. He acknowledges that where s 34C(2) refers to the consenting party being mistaken about a certain matter, as in paragraphs (g) to (i), it is possible that the operative mistake may have been induced by the fraud or deception of the other party. To that extent, he accepts that a fraud or deception may be relevant to a charge of rape. However, he submits that s 34C(2) does not treat fraud or deception as a matter that in itself vitiates consent, and that unless the fraud or deception results in one of the stipulated circumstances in s 34C(2), the issue falls exclusively within the rubric of s 57.
We do not accept that submission. Section 34C(2), for the reasons that we have already given, does not cut down or circumscribe 34C(1). Second, it is not possible to treat s 57 as reflecting an intention to deal exhaustively with the matters to which it is directed.
That is so because s 57 covers similar but different ground. Most conspicuously, the absence of consent is not an element of an offence under s 57. A potential overlap between rape and other specific sexual offences also tells against reading s 57 as carving out certain conduct from the reach of s 38. For example, s 45 provides that a person who takes part in an act of sexual penetration with a child under s 16 is guilty of an offence. The absence of consent is not an element of that offence. The existence of that specific offence does not mean that the offence of rape under s 38 is to be read down so as to exclude victims under the age of 16. Rather, the two operate together in accordance with the tenor of their language. The same approach should be taken to reconciling s 38 and s 57.
It is clear that the same conduct might constitute an offence under s 38 and s 57. For example, a person may threaten his victim so as to procure him or her to take part in an act of sexual penetration. This would constitute an offence under s 57. Equally, the making of the threat may mean that the victim is not consenting to the act of sexual penetration and, depending on the person’s belief as to consent, the conduct may also constitute rape pursuant to s 38.
As the respondent acknowledged, a fraud on the part of the accused may mean that the victim is mistaken about the sexual nature of the act. In such a case, the fraud might be relevant to either an offence of rape or under s 57.
Although the respondent submits that his construction of s 34C follows from the plain language of the provision, he also seeks to call in aid the common law as providing a settled understanding on which the provision must be construed. He says that consistently with that history, consent relates to the physical act of penetration and that a mistake will only vitiate consent in a very narrow range of circumstances, namely where the mistake relates to the nature and character of the act.

Legislative history

The crime of rape in Victoria is a statutory offence. For many years, the common law supplied the elements of the offence. Rape was not defined until 1980, and then the definition was confined to the physical act of penetration and did not refer to or seek to further define consent.[12] In 1991, the Act was amended so as to define consent as ‘free agreement’ and to include a non-exhaustive list of prescribed circumstances in which a person does not freely agree to a sexual act.[13] At the same time, the Act was amended so as to require judges to give jury directions in respect of the issues of consent and any delay in reporting the alleged offence.[14] The mandatory jury directions on consent were amended in 2007. At the time of those amendments, the Attorney General said in his second reading speech:
[T]hese amendments seek to clearly support the communicative model of consent. In a rape trial, Victorian law currently requires the prosecution to prove that the accused was aware that the complainant was not or might not be consenting to an act of sexual penetration. This requires the accused to have actively turned their mind to the issue of consent. That is to say, if an accused person effectively does not care one way or the other whether the person they are having sex with is consenting, and therefore does not even turn their mind to this issue, then the offence of rape is not committed. This also applies to a range of sexual offences which have the same fault element.
The community expects that where someone is intending to engage in a sexual act with another person, they will ensure that the other person is freely agreeing to engage in that act. It is not acceptable for a person to engage in a sexual act whilst being completely indifferent to whether the other person agrees. Where there is any doubt in the mind of the person instigating the sexual act, there is a responsibility upon that person to communicate with the other person in order to remove that doubt.
These amendments make it clear that a person will be guilty of the relevant sexual offence both if they are aware that the other person was not or might not have been consenting to the sexual act or if they do not turn their mind at all to the issue of consent.[15]
[12]By s 4 of the Crimes (Sexual Offences) Act 1980, inserting the definition of ‘rape’ into s 2A of the Act. See, eg, ISJ v The Queen (2012) 38 VR 23; [2012] VSCA 321.
[13]Crimes (Rape) Act 1991.
[14]Initially these directions were included in the Crimes Act 1958, ss 37(1) and 61 respectively. At the time of the alleged offending, these directions were, and continue to be, included in the JDA. See, div 1 of pt 5 concerning directions in relation to consent and div 5 of pt 4 and div 2 of pt 5 of the JDA in relation to delay.
[15]Hansard, Legislative Assembly, 22 August 2007, 2859.

The common law

The law has always prohibited rape, although the kinds of conduct that have been captured by that concept have changed over time, often through the mediation of judicial decision. The common law has, in that respect, evolved so as to ‘govern new or changed situations to which an ever developing social order gives rise’,[16] with the consequence, for example, that at common law it became no longer necessary to show that the woman, and it was always a crime for which the victim was female, was overcome by force,[17] and a wife is no longer presumed to have consented to sexual intercourse with her husband.[18]
[16]Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392, 399 (Dixon CJ); [1959] HCA 29; PGA v The Queen (2012) 245 CLR 355, 375 [35] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); [2012] HCA 21 (‘PGA’).
[17]Papadimitropoulos (1957) 98 CLR 249, 261 (Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ); [1957] HCA 74.
[18]PGA (2012) 245 CLR 355; [2012] HCA 21.
The correct approach was made plain by the High Court in the following passage from R v Getachew:
Since the enactment of the Crimes (Rape) Act 1991 (Vic) (the 1991 Act), the elements of the offence of rape – including that most important of elements, the absence of consent – have been statutorily defined. Consideration of any question about the law of rape in Victoria must begin and end in consideration of the relevant statutory provisions. Reference to decisions about the common law of rape (whether those decisions were made before or after the enactment of the 1991 Act) is useful only if such reference assists in construing the applicable statutory provisions.[19]
[19](2012) 248 CLR 22, 27–8 [11] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 10 (emphasis in original) (citations omitted).
As will appear, we have found cases decided under the common law and under different statutory settings, both in this State and in overseas jurisdictions, helpful in teasing out the potential operation and the differing situations in which the relevant provisions of the Act may be applied so as to better understand their meaning. Ultimately, however, as we have said, it is the text that is controlling.
In Papadimitropoulos, the accused man led the complainant to believe that they were married and then had sexual intercourse with her on a number of occasions. The complainant said that she had consented to sexual intercourse on the false premise that they were married. In fact, when the couple had attended the marriage registry they had completed a notice of intention to marry and no marriage ceremony had occurred. A conviction for rape was upheld by majority in the Full Court of the Supreme Court of Victoria but was unanimously overturned in the High Court.
The essential holding of the High Court was that the complainant understood and agreed to the act of penetration knowing its sexual nature. There was no misunderstanding as to the nature of the act, only as to the relationship between the two parties. The High Court rejected the prosecution’s submission that there was a difference that the law of rape should recognise between marital intercourse and fornication, and that the complainant had consented to the former and not the latter.
It is convenient to set out some parts of the reasons for judgment of the Court.
After noting that the critical issue is the nature of the mistake rather than its cause, the Court went on to identify the essential inquiry as follows:
[N]amely, whether the consent is no consent because it is not directed to the nature and character of the act. The identity of the man and the character of the physical act that is done or proposed seem now clearly to be regarded as forming part of the nature and character of the act to which the woman’s consent is directed.[20]
[20]Papadimitropoulos (1957) 98 CLR 249, 260 (Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ); [1957] HCA 74.
The Court continued:
In the present case the decision of the majority of the Full Court extends this conception beyond the identity of the physical act and the immediate conditions affecting its nature to an antecedent inducing cause—the existence of a valid marriage. In the history of bigamy that has never been done. The most heartless bigamist has not been considered guilty of rape.
…
To return to the central point; rape is carnal knowledge of a woman without her consent: carnal knowledge is the physical fact of penetration; it is the consent to that which is in question; such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape.[21]
[21]Ibid 261.
The reasoning in Papadimitropoulos is founded on the long standing approach to rape at common law. At common law, the role of fraud and its effect on whether or not the complainant had consented to the act of sexual intercourse focused on whether the fraud or deception went to ‘essential’ characteristics of the act. In R v Clarence,[22] it was held that a deception would vitiate consent only if it went to the sexual nature of the act or the identity of the partner. In Clarence, a case where the man knew that he had venereal disease but did not disclose that fact to his wife before intercourse, the Court for Crown Cases Reserved had to decide whether ‘connection with a diseased man and connection with a sound man’ were ‘things essentially different’. The Court held that they were not. The facts in R v Williams[23] provide an example of the role of fraud. In that case, a choirmaster induced a pupil to have intercourse with him on the pretence that she needed more air to improve her singing. A conviction for rape was upheld on the basis the victim did not understand the sexual nature of the act.[24]
[22](1888) 22 QBD 23 (‘Clarence’).
[23][1923] 1 KB 340 (‘Williams’).
[24]Ibid. See also, R v Case (1850) 1 Den 580; R v Flattery (1877) 2 QB 410 (‘Flattery’).
In Papadimitropoulos, it was held that sexual intercourse with a counterfeit husband was not a different sexual act to intercourse with a lawful spouse. Another way of expressing the distinction can be found in Papadimitropoulos where the Court referred to the following aphorism with apparent approval: ‘fraud in the inducement does not destroy the reality of the apparent consent; fraud in the factum does.’[25]
[25](1957) 98 CLR 249, 258–9; [1957] HCA 74.

As will emerge, the line that divided deceptions that went to the nature and character of the act, and those that did not, has not always been easy to discern. It is notable that the common law did not look merely on the effect that the deceit had on the mind of the complainant, but focused on the subject matter of the deceit and its relationship to the physical act involved. For that reason, the common law did not capture ‘disingenuous blandishments or common or garden lies’ that might induce a person to agree to sexual relations.[26]
[26]R v Jheeta [2007] EWCA Crim 1699, [24] (Sir Igor Judge P) (‘Jheeta’).
The issue of deception was considered by the Full Court of the Supreme Court of Victoria in Mobilio. In that case, the complainants had, on different occasions, agreed to the insertion of an ultrasound transducer into their vaginas thinking that it was for a medical procedure. The prosecution alleged that the conduct had no medical purpose and was done by the radiographer for his own sexual gratification. The issue was whether the consent that was given was not real or genuine because of the mistaken understanding of the act. The Court considered the ambit of the concept, picked up in Papadimitropoulos, that the complainants understood the nature and character of the act.
The Full Court recognised that, in the context of the insertion of a penis into a complainant’s vagina, the complainant ‘must understand more than what is proposed is the physical act of penetration by the penis.’[27] The additional requirement being an appreciation that the act is one of ‘sexual connection as distinct from an act of a total different character’.[28] Again, that reasoning follows from those cases which focused on the nature and quality of the act, including where the accused persuades a complainant to allow him to insert his penis into her vagina on the basis that it would improve her bodily function. However, the Court went on to say that it was not the man’s purpose in undertaking the relevant act that was relevant, but the complainants’ appreciation of the nature and character of the act.
[27]Mobilio [1991] 1 VR 339, 350 (Crockett, McGarvie and Beach JJ).
[28]Ibid (citations omitted).
When it came to address the nature and character of the act involved in inserting a transducer into the vagina, the Full Court put the sexual motive of the accused to one side. The Court said ‘[t]he actual act to which she consents, the act of sexual intercourse, is not different and has no different effect on her body if the man has one ulterior purpose rather than another.’[29]
[29]Ibid.
Turning to the complainants’ state of mind, the Court concluded that ‘[f]or the consent of a woman of normal intellect to an act to be deprived of reality through difference between the nature and character of the act consented to and that actually done, the difference must be essential.’[30] The applicant was not guilty of rape because:
In this case each of the women consented to the applicant introducing the transducer into her vagina in the performance of the act of conducting a transvaginal ultrasound examination. That is precisely what the applicant did. For the reasons earlier discussed the woman’s consent to the proposed act which she knew to be of the nature and character of the act which was done, was not deprived of reality if she believed the applicant proposed to do the act solely for a medical diagnostic purpose and if he actually did it solely for his own sexual gratification. The applicant did no act which was essentially different from the act which the women knew he proposed to do, and to which they consented.[31]
[30]Ibid 351.
[31]Ibid 352.
The issue of when consent might be vitiated or found to be no consent at all as a result of the deception of the other person has also occupied the Courts in other countries.

United Kingdom

In the United Kingdom (‘UK’), the issue came up in the context of the extradition of Julian Assange from the UK to Sweden. The Swedish authorities alleged that Mr Assange was guilty of ‘sexual molestation’; in that he ‘consummated unprotected sexual intercourse’ in circumstances where the complainant had expressed as a prerequisite to intercourse that a condom be used. The issue arose as to whether that conduct was an offence in the UK for the dual criminality aspect of extradition law, which requires that the conduct be a crime in both jurisdictions.
The issue of dual criminality arose in the particular statutory context provided by the Sexual Offences Act 2003 (UK) (‘UK Act’). Section 2 of the UK Act sets out the offence of assault by penetration and consent is dealt with in three sections: ss 74, 76 and 95. Section 74 provides a general definition of consent in these terms:
For the purposes of this Part, a person consents if he agrees by choice and has the freedom and capacity to make that choice.
Section 76 prescribes conclusive presumptions in relation to consent as follows:
(1)If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—
(a)that the complainant did not consent to the relevant act, and
(b)that the defendant did not believe that the complainant consented to the relevant act.
(2) The circumstances are that—
(a)the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b)the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
Following an earlier decision of the UK Court of Appeal in Jheeta, the Court held that s 76 of the UK Act applied in narrow circumstances, which the Court thought likely to be rare, in which the victim is deceived as to the ‘nature or purpose’ of the form of intercourse. Importantly, the Court held that s 76 did not provide an exhaustive code in relation to deception and added that where s 76 does not apply, it was still open to assess whether in a given case there was consent determined in accordance with s 74.[32] Thus, although s 76 was not engaged, the case fell to be determined applying the ‘general consent’ provision under s 74. The Court explained as follows.
… The question of consent in the present case is to be determined by reference to s 74. The allegation is clear and covers the alternatives; it not an allegation that the condom came off accidentally or was damaged accidentally. It would plainly be open to a jury to hold that, if AA had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom without her consent. His conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003, whatever the position may have been prior to that Act.
It might be said that Mr Assange’s conduct in having sexual intercourse with AA without a condom (or in continuing sexual intercourse with AA after removing, damaging or tearing the condom) was deceptive. Assuming it was deceptive, then in our view it was not deceptive as to “the nature or quality of the act”. We accept it could be argued that sexual intercourse without a condom is different to sexual intercourse with a condom, given the presence of a physical barrier, a perceived difference in the degree of intimacy, the risks of disease and the prevention of a pregnancy; moreover the editors of Smith & Hogan (12th edition at p 866) comment that some argued that unprotected sexual intercourse should be treated as being different in nature to protected sexual intercourse. It seems to us, however, that s 76 should be given a stringent construction, because it provides for a conclusive presumption. The issue of the materiality of the use of a condom can be determined under s 74 rather than under s 76.[33]
[32]Assange v Swedish Prosecution Authority [2011] EWHC 2849, [90] (Sir John Thomas) (‘Assange’).
[33]Ibid [86]–[87].
The earlier case of Jheeta is instructive. In that case, the accused employed an elaborate system of deception in which he pretended to be several police officers in order to pressure the complainant into having sexual intercourse with him. The Court of Appeal held that this deception was not caught by s 76. In giving the judgment of the Court, Sir Igor Judge P said:
In our judgment the ambit of section 76 is limited to the ‘act’ to which it is said to apply. In rape cases the ‘act’ is vaginal, anal or oral intercourse. Provided this consideration is constantly borne in mind, it will be seen that section 76(2)(a) is relevant only to the comparatively rare cases where the defendant deliberately deceives the complainant about the nature or purpose of one or other form of intercourse. No conclusive presumptions arise merely because the complainant was deceived in some way or other by disingenuous blandishments or common or garden lies by the defendant. These may well be deceptive and persuasive, but they will rarely go to the nature or purpose of intercourse. Beyond this limited type of case, and assuming that, as here, section 75 has no application, the issue of consent must be addressed in the context of section 74.[34]
[34][2007] EWCA Crim 1699, [24] (emphasis in original).
Using examples drawn from the common law, the Court referred to instances of rape where sexual intercourse had been induced by the defendant telling the complainant that intercourse would break ‘natures’ string’ and provide a cure for fitting[35] or, in another case, to cure a problem with breathing to help the victim with her singing.[36] Cases such as those provided examples of where the victim had been deceived as to the nature and character of the act.
[35]Flattery (1877) 2 QBD 410.
[36]Williams [1923] 1 KB 340.
Section 76 had no application because the complainant had been pressurised into having intercourse, but ‘[s]he was not deceived as to the nature or purpose of intercourse, but deceived as to the situation in which she found herself.’[37]
[37]Jheeta [2007] EWCA Crim 1699, [28].
Although s 76 was held not to apply, the Court held that the accused person’s plea of guilty to rape must stand on the basis that the deception meant that there was no ‘free choice or consent’.[38]
[38]Ibid [29].
The issue of consent under s 74 of the UK Act arose again in the Court of Appeal in a slightly different context. In R (on the application of F) v DPP,[39] a complainant applied for judicial review of a refusal by the Director of Public Prosecutions to prosecute a man for rape. In that case, the complainant alleged that she had consented to intercourse with her former partner on the express understanding that he would not ejaculate inside her vagina. She claimed that the evidence showed that the man deliberately ignored the basis of her consent to penetration as a manifestation of his control over her. Lord CJ held that on these facts, there was no consent to penetration. He explained:
In law, the question which arises is whether this factual structure can give rise to a conviction for rape. Did the claimant consent to this penetration? She did so, provided, in the language of s 74 of the 2003 Act, she agreed by choice, when she had the freedom and capacity to make the choice. What Assange underlines is that ‘choice’ is crucial to the issue of ‘consent’, and indeed we underline that the statutory definition of consent provided in s 74 applies equally to s 1(1)(c) as it does to s 1(1)(b). The evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad commonsense way. If before penetration began the intervener had made up his mind that he would penetrate and ejaculate within the claimant’s vagina, or even, because ‘penetration is a continuing act from entry to withdrawal’ (see s 79(2) of the 2003 Act) he decided that he would not withdraw at all, just because he deemed the claimant subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.[40]
[39][2013] EWCH 945; [2014] QB 581 (‘R (on the application of F)’).
[40]Ibid [26].
The dividing line of when fraud and deception vitiates consent is not clear. This has been seen in a number of cases involving different factual scenarios where rape has been alleged, including Jheeta, Assange and R (on the application of F).
In McNally v R,[41] the Court upheld a conviction for rape where the complainant was deliberately deceived into thinking the appellant was male. The Court noted that deception as to gender can vitiate consent.[42] In R v EB,[43] a conviction of rape was quashed on the basis that the non-disclosure of the appellant’s HIV status did not vitiate the consent to sexual intercourse. In R v Linekar,[44] Justice Morland found that the complainant had consented to sexual intercourse with the appellant. The fact that she had not been paid as agreed for her services did not vitiate that consent.
[41][2013] EWCA Crim 1051; [2014] 1 QB 593.
[42]Ibid [27] (Lord Justice Leveson).
[43][2006] EWCA Crim 2945.
[44][1995] QB 250.
The issue of whether fraud or deception vitiates consent has also arisen in a number of cases where a medical practitioner or person pretending to be a medical practitioner has obtained the consent of the person to being touched. In both Flattery and Williams, the Court upheld convictions for rape where intercourse took place after the defendant in each case deceived the complainant into having sexual intercourse to cure a medical problem (in Flattery, a remedy for fits; and in Williams, a problem with the complainant’s breathing). In Mobilio, the Full Court allowed an appeal on three counts of rape after the applicant, during the course of his employment as a radiographer, introduced an ultrasound transducer or probe into the vaginas of three women.
The case law on deception, and its potential impact on consent, is informed by a reluctance not to over criminalise sexual offending and the aetiology of the offence of rape. It is for that reason that in many contexts, conduct that may be described as deceptive or fraudulent has been dealt with under the procuring offences, such as procuring sexual penetration by fraud.
It appears from those decisions, and others dealing with deception,[45] that the critical focus of s 74 of the UK Act is whether the decision to engage in the sexual activity is a free choice and whether the person had the freedom and capacity to make that choice. In some cases, the existence of deception or control on the part of the alleged perpetrator may render the decision to engage in sexual activity other than a free one. Whilst s 76 of the UK Act echoes the narrow common law approach, as reflected in cases such as Flattery, R v Lambert,[46] Papadimitropoulos and Mobilio, the courts have accepted that s 76, narrowly construed, is not exhaustive. It is plain that the courts of the UK have given s 74 an operation that is wider than that of the common law.
[45]McNally v R [2013] EWCA Crim 1051; [2014] QB 593; R v Linekar [1995] QB 250; Williams [1923] 1 KB 340.
[46][1919] VLR 205.

Conclusion

In our view, the common law and the English cases help expose, but not resolve, the constructional question as to the reach of s 34C(1) of the Act. For that reason, little purpose is served by a survey of decisions in other jurisdictions under different statutory regimes.[47]
[47]See, eg, R v Kirkpatrick [2022] SCC 33; R v Kirkpatrick [2020] BCCA 136; R v Hutchinson [2014] 1 SCR 346.
We accept that the text of s 38 and s 34C gives rise to two alternative constructions. On the one hand, is a narrow construction, reflecting the common law, in which there will be free agreement to the penetration if the person agrees that penetration can occur and the person understands the nature and sexual character of the act. On the other, is a broader conception of ‘free agreement’ that reflects a capacity to make an informed decision as to whether or not sexual activity should take place and the conditions on which it does so.
Based on the text of the provisions, and having regard to their purpose and the deliberate departure from the common law, we conclude that the Act encompasses a broader conception of consent than the common law. That broader construction is not tied to a narrow focus on whether the complainant understood and agreed to the physical act of penetration. We do not accept that the procuring sexual penetration by fraud offence in s 57 of the Act calls for a narrower construction. As noted above, the two offences have different elements and s 57 provides no sound reason to read down the notion of consent as it applies to s 38.
We accept that whether a condom is or is not used is not a component of the defined physical act of penetration. Whether or not a condom is used does not render an act of penetration a different form of penetration for the purposes of s 37D. It does not follow from the fact that the legislation relevantly focuses on a particular act of penetration that the use of a condom is, in every case, irrelevant to the question whether there is consent. In this context, it is important to recall that the actus reus of the offence is the physical act of penetration without consent.[48] For that reason, it is erroneous to isolate the physical act of penetration from the circumstances in which the consent is given. That approach is apt to ignore the combination of the physical act and the consent that forms the relevant act. Further, it tends to treat the act of penetration as simply a physical connection without any more significant connotation, whereas, for the purposes of assessing whether there is free agreement, the provisions, read as a whole, make it clear that the physical contact does not just have a physical dimension and that there may be a variety of factors that may undermine or vitiate consent.
[48]David Ormerod and Karl Laird, Smith, Hogan and Ormerod’s Criminal Law (Oxford University Press, 15^th ed, 2018) [17.2.1].
The only relevant act of penetration here is the insertion of the respondent’s penis into the anus of the complainant. It is not to the point to ask whether the complainant consented to a different form of penetration. Rather, the question is whether, in the circumstances that happened, the complainant gave free agreement to the act of penetration that occurred, namely the insertion of the respondent’s penis into his anus. Another way of looking at the issue is whether the non-satisfaction of the express condition precedent on which that consent was given, vitiates or negates the complainant’s otherwise free agreement. The issue can thus be framed as one of apparent consent,[49] where the complainant consents to the physical act but on an erroneous understanding induced by the conduct of the other party.[50]
[49]R v Hutchinson [2014] 1 SCR 346, [4] (Rothstein CJ and Cromwell J).
[50]See, eg, Williams [1923] 1 KB 340 above at [65].
There seems little doubt that the complainant agreed that the respondent could insert his penis into the complainant’s anus, and did so willingly and understanding the sexual nature of the act. The express condition was that a condom be worn. As just observed, the issue is whether non-satisfaction of that condition means that the complainant did not freely agree to the act of penetration that in fact occurred. In our view, it would be open to a jury to conclude that the complainant did not consent to the act of penetration on the basis that the condition that a condom be used was, from the perspective of the complainant, essential to the physical act of penetration and that non-satisfaction of the condition vitiated any consent that was otherwise freely given. We reach that conclusion because free agreement extends to the freedom to choose the manner in which physical penetration is to occur, and the requirement to wear a condom may be from the perspective of a participant inextricably bound up with the act of penetration and inseparable from the issue of consent.

A condom acts as a physical barrier between the two participants. It may guard against the transmission of disease and is a prophylactic against pregnancy in the case of heterosexual intercourse. The use of a condom is not only concerned with the consequences of the act of intercourse but also how the act is to be performed and the nature of the physical connection between the participants. In that sense, mistakes as to whether other forms of contraception are being used or how the risk of pregnancy is being addressed may be different. On the respondent’s approach, ss 34C and 38 are indifferent to whether or not a condom is used and consent to intercourse with a condom must always carry with it consent to intercourse without a condom. We do not agree. That approach does not accord with the primacy that the Act gives to sexual autonomy and choice, and the connection between the act of intercourse and the wearing of a condom. On the prosecution case, had the complainant been aware that the respondent was about to insert his penis without a condom in place, he plainly would have stopped that from occurring in the exercise of his free choice to engage in the sexual activity. In assessing the question of free agreement, it would be anomalous if that choice was negated because the act of penetration without a condom occurred surreptitiously and without his knowledge. To deny him free agreement in that way, is inconsistent with the text and scheme of the Act.
That is the approach taken in the UK to the broad consent provision in s 74 of the UK Act and also best fits the statutory provisions that this Court must construe.
We would add that, for similar reasons, even on the narrower conception advanced by the respondent, whether or not a condom is used forms part of the nature and character of the act as explained by the High Court in Papadimitropoulos.
It is not necessary to determine the boundaries in which consent might be vitiated by a misunderstanding on the part of the consenting party. Whether there is an absence of free agreement depends on the nature of the misunderstanding and perhaps its cause. A mistake or misunderstanding on the part of a consenting party will not vitiate consent merely because it was given on the basis of a misapprehension or a mistake. For example, Mrs Papadimitropoulos’ consent was not vitiated merely because she would not have given it if she had known the true position. The matters that underpin the caution that the common law has displayed in this area of the law are not irrelevant to the application of s 34C in the myriad of circumstances in which it might arise. However, that caution does not inform the outcome in this case.
For the reasons given above, the prosecution case on the charge of rape is not foredoomed to fail. The judge erred in granting a permanent stay of the charge.
We would make the orders indicated earlier in these reasons.

MACAULAY JA:

The critical element of the offence of rape that is in question on this application for leave to appeal an interlocutory decision[51] is set out in s 38(1)(b) of the Act: that is, that ‘B does not consent to the [sexual] penetration’ by A. ‘Sexual penetration’ was, at the time of the alleged offending, defined in s 37D by reference to a highly delineated list of acts.[52] The Director's case on appeal requires that the component of 'consent', then defined in s 34C,[53] be so construed as to recognise and apply to a version of the act of penile penetration of the anus[54] that does not exist within that highly delineated list. That construction should be rejected.
[51]Judge Wilmoth certified under s 295(3) of the Criminal Procedure Act 2009 that the decision was of sufficient importance for it being determined on an interlocutory appeal.
[52]Reference in these reasons to the Act and its various sections are a reference to the legislation as it existed at the time of the alleged offence, 23 June 2017. The definition of ‘sexual penetration’ is now found in s 35A of the Act.
[53]The definition of ‘consent’ is now found in s 36 of the Act.
[54]An act of sexual penetration by virtue of s 37D(1)(b).
For the reasons that follow, I would grant leave to appeal but dismiss the appeal.
There are two grounds of appeal in which, in terms, there is no argument directed towards the construction of s 37D. In substance those grounds are:
•First, the judge failed to properly construe s 34C in that the judge:
(a)should have found that there is no free agreement to sexual penetration if there is a non-consensual removal of a condom (that is, non-consensual penetration without a condom) − focusing on s 34C(1); and
(b)should not have found that s 34C(2) contained an exhaustive list of consent-vitiating circumstances and, so finding, exclude non-consensual removal of a condom as a vitiating circumstance.
•Secondly, the judge wrongly treated s 57 (procuring sexual penetration by fraud) as the only appropriate offence triable against a person accused of engaging in sexual penetration involving the non-consensual removal of a condom.
Although there are two proposed grounds of appeal, there is one single issue: viz, whether the judge was wrong to rule that the prosecution case could not succeed because, despite conditioning consent upon the use of a condom and the accused intentionally failing to use one, the complainant consented to penile penetration of the anus.
The issue to be decided turns almost entirely on statutory construction. As stated in R v Getachew,[55] since the enactment of the Crimes (Rape) Act 1991 (the 1991 Act) the consideration of any question about the law of rape in Victoria must begin and end in consideration of the relevant statutory provisions. While the 1991 Act (and subsequent amendments to it) did not codify the common law of rape, decisions about the common law of rape are useful only if such reference assists in construing the applicable statutory provisions.[56]
[55](2012) 248 CLR 22, [11]; [2012] HCA 10.
[56]Ibid [11]–[12].
I gratefully adopt the broad description of the relevant facts, statutory provisions and the parties’ arguments as set out by Niall and Forrest JJA.

Statutory provisions

As stated, for present purposes, the critical element of the offence of rape is that 'B does not consent to the penetration'.[57] Within that phrase, 'consent' (a verb) refers to the operating mindset of the complainant and ‘the penetration' (a noun) refers to the physical act which is the object of the complainant's consent (or lack of it). Both ‘consent’ and ‘sexual penetration’ are each more particularly defined in the Act.

Consent[58]

[57]See above at [15], ‘the penetration’ being a reference to the intentional sexual penetration of B by A, as stipulated in s 38(1)(a).

[58]See above at [20].

'Consent' was defined in s 34C in two parts: sub-s (1) states what consent means, viz, 'free agreement', and sub-s (2) lists 12 (non-exclusive) circumstances in which a person does not consent to an act. Several things should be noticed about s 34C:
(a)First, it applies to subdivisions 8A to 8D which, variously, cover rape, sexual assault, incest, sexual penetration and indecent acts against children, and sexual offences against cognitively impaired persons. Collectively those subdivisions concern a range of different physical acts. Thus, the language of s 34C applies distributively to each of the relevant 'acts' with which those subdivisions are concerned;
(b)Secondly, s 34C(2) concerns circumstances in which a person does not consent to an act, which I take to mean any one of the relevant acts specified in the four subdivisions. The relationship between the consent and the act is emphasised by the fact that in every paragraph (except (d)) the phrase 'to the act' is repeated.[59] This repetition reinforces the point, already mentioned, that the role of consent is to supply the relevant mindset of the complainant 'to the act'. The relevant variable is the quality of the state of mind of the complainant depending on which of the paragraphs of sub-s (2) is engaged on the facts of the case. But ‘the act’ is fixed, determined by the particulars of the offence which is charged. What this highlights is that the attributes of 'the act' stand apart from and are independent of the quality of the complainant's free agreement. The two are quite distinct concepts although, of course, they must operate together as set out in s 38(1)(b);
(c)Thirdly, in circumstances where force, fear of harm, detention, unconsciousness, alcohol and mental incapacity are operative, the cause of the particular lack of consent is identified: but, where lack of consent is due to mistaken belief on the part of the complainant, no cause is identified or required. Consistently with that scheme, there is (presently)[60] no category for fraudulently-induced mistaken consent 'to the act'; and
(d)Fourthly, consistent with the notion of consent being concerned only with the 'mindset' of the complainant 'to the act', there is no vitiating circumstance hinging upon any difference (physical or otherwise) between the act actually performed and the act to which the person gave their consent. That is logical because, as appears below, each different form of penetration (proscribed without consent) is individually defined in s 37D, and the performance of a different form of penetration (so defined) would require a separate consent. Section 34C does not purport to deal with the object of the consent, only the existence of the mindset that constitutes consent.

Sexual penetration[61]

[59]In para (d), however, the phrase is logically implied because by reason of being unconscious or asleep the person is incapable of consenting to the act.

[60]But see s 3(1), Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022 (‘the Bill’).

[61]Part of s 37D is set out above at [17].

By comparison with the definition of consent in s 34C, the definition of sexual penetration in s 37D has a narrower application. For those offences in subdivision 8A that involve sexual penetration,[62] sexual penetration is defined in s 37D. For those offences in subdivisions 8B–8G that involve sexual penetration, sexual penetration is defined in a more abbreviated fashion in s 35.
[62]Namely, rape (s 38), taking part in a sexual act (s 37F) and compelling sexual penetration (s 39).
Several things should be noted about s 37D:
(a)First, headed 'sexual penetration', the section sets out 18 different forms or methods of sexual penetration, including where a person (A) sexually penetrates another person (B) (8 forms), or themselves (4 forms), or an animal (6 forms);
(b)Secondly, s 37D very particularly defines what sexual penetration is, subdividing it down to granular species of penetration: the introduction of a body part or an object into a vagina or an anus; or a penis into a mouth; or, having introduced something into a vagina or an anus, continuing to keep it there; or having introduced a penis into a mouth, keeping it there. The section further descends to stipulate (sub-s (5)) that the occurrence or otherwise of penetration, through the use of a penis, is not affected by whether there is the emission of semen;
(c)Thirdly, careful distinctions are made so that, for example, the introduction of a penis, body part or object into the vagina or anus is sexual penetration; but, where the mouth is concerned, only the introduction of a penis (not another body part or an object) amounts to sexual penetration;
(d)Fourthly, given that each of the acts identified in s 37D amounts to a separate form of sexual penetration, for the purpose of s 38(1)(b) each form of penetration requires its own specific consent. Thus, for example, consent to penile penetration of the vagina will not amount to consent to penile penetration of the anus. Consent to digital penetration will not amount to consent to penile penetration, or penetration by an object, and so on; and
(e)Finally, it follows from sub-s (5), that consent given to penetration by use of the penis would be effective whether or not there was emission of semen. The words 'it does not matter' appear to mean that the emission (or not) of semen does not change the act from being a singular act of 'sexual penetration' for which only one, undifferentiated consent is required.

Statutory objectives[63]

[63]See above at [14].

Section 37A specified the objectives of various subdivisions including 8A which creates the offence of rape. Relevantly, the objective is to 'uphold the fundamental right of every person to make decisions about his or her sexual behaviour and to choose not to engage in sexual activity'.
Because that objective relates to a number of subdivisions which, collectively, refer to numerous forms of illegal sexual conduct (penetration, touching, indecent acts, etc), the general terms 'sexual behaviour' and 'sexual activity' are apt to ensure the applicability of the objective to all the different forms of conduct covered by the relevant subdivisions. But the use of those general terms in that context does not provide any proper basis to supplement the list of the acts constituting 'sexual penetration' in s 37D or to modify the described features of those acts.
The objective states the policy that underlies, for example, the idea that a person has the right to decide precisely which sexual behaviours among the individual forms of penetration identified in s 37D that he or she will engage in, and those he or she does not. That right is implemented by the 'communicative model of consent' enshrined in s 34C which insists on 'free agreement' and expressly negates consent if a person does not positively say or do anything to indicate consent to the act.[64]
[64]Section 36(2)(k).
Put shortly, s 37A is meaningful without enlisting it to support an argument that, harnessed with 'free agreement' in s 34C(1), the 'fundamental right' moulds the meaning of 'the act' to which the consent of a person must be given in order to avoid that act being rape.

Jury Directions Act, ss 46, 47[65]

[65]See above [21].

Directions on consent given to a jury in relation to sexual offences underscore the notion of free agreement and choice. In particular, s 46(3)(a) of the Jury Directions Act requires a judge (if requested by counsel) to inform the jury that a person can consent to an act only if the person is capable of consenting and free to choose whether or not to engage in or allow the act.
That requirement is consistent with the scope and structure of the sexual offence provisions in the Act in that it directs attention to the choices a person must be free to make among the various 'acts' which the criminal provisions describe. It would be drawing a long bow, however, to employ those provisions as a means of enlarging the definition of the 'acts' which, without free agreement, are proscribed.

Competing arguments

The Director's argument focused almost exclusively on the 'consent' element of s 38(1)(b) as the issue upon which the resolution of the question turned. Both limbs of ground 1 are directed to that element and, by implication, so is ground 2. Accordingly, the Director's argument proceeded from the content of 'free agreement', the fundamental right to choose and make decisions about sexual behaviour, and the communicative model of consent. By contrast, the respondent's argument concentrated on the legislative definition of the object of that consent, namely what constitutes the sexual penetration.

Director's argument

In more detail, the Director's case proceeded from a 'starting point' that, for rape under s 38 of the Act: (1) consent means 'free agreement', which reflects the 'communicative model of sexuality' ushered in by the 1991 Act;[66] and (2) the Act promotes the right to choose not to engage in sexual activity (relying upon s 37A(a)). Therefore, the Director argued, the requirement of free agreement to any act of sexual penetration must logically imply the requirement of free agreement to any ‘form’ of performing that penetration where that particular form is ‘intrinsically linked’ to the physical act in question.
[66]ISJ v R (2012) 38 VR 23, [22]–[25].
For example, in written submissions the Director argued:
The above analysis reveals that the statutory offence of rape is aimed at ensuring every person is empowered to freely make decisions about whether to engage in - or not engage in - a specific act of sexual penetration. Sexual penetration can be varied and involve important physical differences, and consent to one form of sexual penetration is not consent to another form. Given how closely proximate or intrinsically fundamental condom-use is to the physical activity of sexual penetration, sexual penetration with a condom (protected sex) is different to sexual penetration without a condom (unprotected sex) in a material way. As such, consent to protected sex does not extend to unprotected sex.
Similarly, the Director orally submitted:
… it is part and parcel of free agreement and this idea that a person is entitled to agree, to put conditions on the form of sexual penetration that they are engaging in.
A person is entitled to communicate the agreement as it relates to sexual penetration. … the use of the condom is intrinsically linked to that penetration. It must, in my submission, logically flow that if a person says, I consent to the penetration only on the basis that a condom is worn, if that condom is deliberately removed during the penetration … it must… logically flow that it [ie. the consent to sexual penetration] has been breached.
In other words, the object of the required consent extends not just to the 'act' of sexual penetration as defined in s 37D, but to the 'manner' or 'form' in which such act is performed.

Respondent's argument

The respondent's argument was that:
(a)The text of the legislation is very specific about the act (s 37D) to which the lack of consent (s 34C) must attach for the crime of rape (s 38) to be established. The text of the legislation does not descend to the manner of performing, or the accoutrements of, the act of penetration (for example, with or without a condom).
(b)Cases such as Papadimitropoulos v The Queen[67] (pretended marriage) and R v Mobilio[68] (pretended medical purpose) make clear that the focus of consent in the law of rape is confined to the physical act, identity of the actor and sexual purpose (nature) of the act, but it does not extend to the method or manner of performing the act.
(c)This common law forms the background to the subsequent (and contemporaneous) development of the statutory law and informs the proper construction of the terms used in the Act. Because the legislation has been enacted, re-enacted and incrementally amended, repeatedly, against that common law background, Parliament is to be taken to have understood the distinctions made in Papadimitropoulos and Mobilio in doing so.
(d)Finally, the object of the criminal law is to create certainty and to convey a clear indication to the community as to what is a crime. The discussion in argument revealed the potential for massive uncertainty if the Court were to accept the Director's invitation to incorporate an unstated dichotomy between protected and unprotected sexual penetration into the definitional characteristics of rape. Any such dichotomy should be left to the Parliament.
[67](1957) 98 CLR 249 (‘Papadimitropoulos’).
[68][1991] 1 VR 339 (‘Mobilio’).

Consideration

I broadly agree with the respondent's approach.
The distinction between — and the separate roles of — the two critical components of 'consent' and 'the penetration' in s 38(1)(b) must be respected, not conflated. The notion of 'free agreement' in s 34C does not incorporate within it a wider range of objects of the agreement than is contained in the definition of 'sexual penetration' in s 37D. Nor should the construction of 'free agreement' be the avenue by which the content of 'sexual penetration' be extended or supplemented.

The need to respect (and not conflate) the distinct roles of the two components is evident, as a matter of statutory construction, from a number of indicia:
(a)First, the various manners and forms of sexual penetration are so particularly defined in s 37D that the natural inference is that, as a matter of policy, Parliament has carefully and deliberately identified those acts for which individual consent is required to avoid criminal liability;
(b)Secondly, the reference to 'an act' or 'the act' in s 34C(2) must or should be construed as a reference to the various acts identified in sub-divisions 8A to 8D;
(c)Thirdly, every paragraph in s 34C(2) expressly (or at least implicitly) directs attention to the complainant's state of mind toward 'the act', a concept with a particular statutory meaning and not at large;
(d)Fourthly, it may be accepted that the list of circumstances in s 34C(2) that do not satisfy the quality of consent is not an exclusive list. Other circumstances may potentially be held to not satisfy the quality of consent. But acknowledging this does not gainsay the proposition that common features of all of the listed circumstances may provide some constructional clue as to the ambit of the meaning of 'free agreement'. What is common among them is that all concern a state of mind directed toward a specified object, being 'the act'; and further, by necessary consequence, none contemplate a vitiation of consent because the act performed is a different act or form of act to the one consented to. A circumstance of that nature would look like an outlier in s 34C(2) in its current formulation; and
(e)Fifthly, the absence of any consent-vitiating circumstance in s 34C(2) based upon the act performed being different to the one consented to, is harmonious with the notion that s 37D supplies the definition of the relevant physical act and s 34C is concerned only with the complainant’s state of mind toward that act.
By arguing that the object of 'free agreement' extends to specific forms of sexual penetration or the specific manner in which the penetration is performed, the Director, in effect, argues that the meaning of 'sexual penetration' as defined in s 37D is not fixed. The Director's argument broadens the requirement that there be 'free agreement to sexual penetration' to a requirement that there be 'free agreement to each specific manner of sexual penetration' or 'free agreement to sexual penetration subject to any condition imposed about the physical manner of performance'. Doing so amounts to conflating the distinct roles played by the words ‘consent’ and ‘to the penetration’ within s 38(1)(b).
In my view the Director’s approach is not permissible as a matter of statutory construction. The Act conditions rape upon the lack of free agreement to 'sexual penetration' as defined, not some broader notion of 'a sexual act'.
The question for the Court is not whether, as viewed in the community generally, unprotected sex is a different form or manner of sexual penetration than protected sex. It very well may be. The real question is whether the term 'sexual penetration' in the Act can be construed as being further subdivided below the forms presently set out in s 37D: that is, whether the defined term of 'sexual penetration', in its sub-meaning of penile penetration of the anus, can be further subdivided into (1) protected or (2) unprotected penile penetration of the anus, each requiring distinct 'free agreement' in order to avoid the penetration being rape.
If it can be so subdivided, such a distinction is not to be found in the definition of 'consent'. Put another way, the lack of distinction between 'forms' or 'manner' of sexual penetration in s 37D cannot or should not be remedied by discerning such a distinction in the consent component, in order to achieve the result that rape is established by the absence of consent to sexual penetration performed in a particular manner.

Common law

In R v Lambert[69] and Papadimitropoulos, the courts were prepared to broaden the scope of the enquiry whether a complainant had consented to penetration by taking into account contextual circumstances (the assumption that penetration was occurring in the context of marriage: Papadimitropoulos) or a circumstance personal to the complainant (a mental impairment which limited capacity to appreciate the sexual nature of the act: Lambert). It had also long been accepted that consent to penetration was not truly given if it was given in the mistaken belief about the identity of the sexual partner.[70] Against that background, in Papadimitropoulos the High Court emphasised that the ‘essential inquiry was whether apparent consent was not real consent because it was not directed to the ‘nature and character of the act’, explaining further that:[71]
[t]he identity of the man and the character of the physical act that is done or proposed to be done seem now clearly to be regarded as forming part of the nature and character of the act to which the woman’s consent is directed.
[69](1919) VLR 205.
[70]See Papadimitropoulos (1957) 98 CLR 249, 255–257.
[71]Papadimitropoulos (1957) 98 CLR 249, 260.
Given the background against which that statement was made, it is plain in my view that ‘nature and character of the act’ was a reference to the sort of contextual and personal circumstances affecting the complainant’s understanding of the sexual nature of the act, the identity of the partner and the relationship environment in which the act was undertaken, but not the physical attributes of the act itself. The Appeal Division of this Court applied the same understanding of that expression in Mobilio,[72] a decision given in June 1990 shortly before the introduction of the 1991 Act. To my knowledge, the expression was not used, prior to the 1991 Act or since, as if it related to any feature of the physical act of penetration or the manner of performing it.
[72][1991] 1 VR 339, 350.
Consistently with that history and background, paragraphs (f), (g), (h) and (i) of s 34C(2) contain statutory expressions of circumstances in which consent is vitiated because of the nature and character of the act. They concern the complainant’s understanding about, or capacity to understand, the sexual nature of the act (as opposed to some non-sexual nature), or a mistaken belief about the identity of the sexual partner. None of them draw any distinction between the physical or intrinsic aspects of the act of sexual penetration to which consent was given, and those of the act actually performed.
In short, in so far as the common law of Australia might assist in the construction of the relevant statutory provisions in this case, it would not be correct to apply the common law’s reference to the ‘nature and character of the act’ as if it related to the physical features of or the manner of performing the act of penetration to which the consent is directed. To the contrary, the common law would support a more limited application.

Canadian decisions

Significant care must be taken when looking at overseas cases that have dealt with the so-called practice of ‘stealthing’. Because, as stated, the issue here is to be determined primarily by the tools of statutory construction, little is to be gained by drawing any direct guidance from cases decided upon other statutes and subject to different common law principles. Nevertheless, if only to highlight the important features of the Victorian legislation by contrasting them with those considered when deciding similar cases overseas, there is some use in discussing those cases.
Attention was given in argument to a decision of the Canadian Supreme Court in R v Hutchinson.[73] A female complainant had consented to sexual intercourse on the condition that her male partner wore a condom. The male partner sabotaged the condom by puncturing it, as a result of which the complainant become pregnant. At trial the partner was convicted of aggravated sexual assault under the Criminal Code RSC, 1985 (the Code).
[73][2014] 1 SCR 346 (‘Hutchinson’).
The Code differs from the Victorian legislation in important respects, but it also shares some structural similarities. Under the Code there is no separate offence for rape. Instead, rape is embraced by the offence of 'sexual assault' which, in turn, is a sub-group of the general offence of 'assault'.[74] The offence of assault (including sexual assault) occurs if a person, without the consent of another, applies force intentionally to another.[75] The Code applies different penalties to different grades of sexual assault depending on whether the assault was accompanied by the infliction of actual physical or mental harm, or the use of a weapon.[76] The notion of 'consent', as it applies to all assaults, excludes consent that has been obtained by force, threats, fraud or the exercise of authority.[77] As it applies to sexual assault in particular, consent 'means voluntary agreement of the complainant to engage in the sexual activity in question'.[78] There is no definition of 'sexual activity in question': rather, it takes its meaning from the facts of the case that constitute the alleged sexual assault. Further, for sexual assault, 'consent' is additionally defined by a provision that excludes consent in any of a number of listed circumstances,[79] which are not unlike those set out in s 34C(2) of the Act.
[74]Code, s 265(1), (2).
[75]Code, s 265(1)(a).
[76]Code, ss 217, 272 and 273.
[77]Code, s 265(3).
[78]Code, s 273.1(1).
[79]Code, s 273.1(2).
The two legislative schemes are similar in that the relevant crime in each case consists of the absence of consent to an intentional act, and consent is defined as either the ‘voluntary’ or 'free' agreement to the act. Crucially, the schemes are different in their respective approaches to the identification of the act to which the consent must be given. Under the Code, the act is no more fully defined than 'sexual activity', whereas the Victorian legislation is significantly more prescriptive about the particulars of the act.
In Hutchinson, the Supreme Court applied a two-step approach to determining whether the complainant had given consent to the sexual activity. The first was to enquire whether there was voluntary agreement to engaging in the sexual activity in question and, if yes, the second was to enquire whether any of the consent vitiating circumstances applied. The whole court agreed that the male partner was guilty of sexual assault however they split 4:3 on the reasoning.
The majority confined the meaning of the 'sexual activity in question' to the basic physical act of sexual intercourse,[80] found that complainant had given her voluntary agreement to engaging in that activity,[81] but held that her consent was vitiated by having been induced by the male partner's fraud.[82] The minority, on the other hand, decided there had been no voluntary agreement to the sexual activity in question because the use of an intact condom was part of the ‘sexual activity’ and included in the manner in which the complainant had consented to being touched: she had limited her consent only to intercourse with the (proper) use of a condom.[83]
[80]Hutchinson [2014] 1 SCR 346, [64].
[81]Ibid [65].
[82]Ibid [74]. As mentioned at [133] above, consent obtained by means of fraud did not constitute consent for the purpose of the offence.
[83]Ibid [92], [97], [100].
Usefully, the majority distinguished the two competing approaches to the question of what constitutes 'voluntary agreement to the sexual activity in question':
(a)The first approach (in substance, the minority approach) extends the defined sexual activity beyond that basic act to 'conditions and qualities of the act or risks and consequences flowing from it, provided these are "essential features" of the sexual activity'.[84]
(b)The second (the majority approach) defines the sexual activity more narrowly, limited to the basic physical act agreed to at the time, its sexual nature and the identity of the partner.
[84]Note: at [92] the majority disputes this characterisation and says their approach is to enquire whether the complainant consented to the identity of the sexual partner, the sexual nature of the touching and the manner in which the sexual touching was carried out.
This dichotomy provides a useful analytical framework in which to consider and weigh the competing arguments in the case before us. Seen this way, the Director's approach in this case broadly equates to the first of the two approaches identified in Hutchinson: that is, by extending the defined sexual activity beyond the basic act of sexual penetration as defined. Importantly, I would emphasise, according to the Director’s argument the mechanism for doing so is by reference to the component of consent, not by reference to the defined act component which is the object of the consent. The respondent's argument more closely equated to the second approach in Hutchinson.
Very recently, the Canadian Supreme Court revisited the issue again in R v Kirkpatrick.[85] There, the complainant had made it clear to the accused, Kirkpatrick, that she would only agree to have sex with him if he wore a condom. Despite this, during their second episode of intercourse, Kirkpatrick did not wear a condom. The complainant only realised that Kirkpatrick had not been wearing a condom after he ejaculated inside her. Based on these events, he was charged with sexual assault. Kirkpatrick initially obtained an acquittal by successfully arguing that, on the evidence led, the Crown failed to prove the absence of the complainant’s consent to the actus reus of sexual assault. After the Court of Appeal overturned the acquittal, Kirkpatrick appealed to the Supreme Court.
[85][2022] SCC 33 (‘Kirkpatrick’).
All judges of the Supreme Court agreed that the appeal should be dismissed but split 5:4 on the reasoning. The majority held that, ‘[a]t the actus reus stage of sexual assault, placing a condition of condom use on consent defines the sexual activity voluntarily agreed to’.[86] The minority, on the other hand, regarded the Court has being bound by the authority of Hutchinson. On that authority, the enquiry whether the complainant consented to the sexual activity in question was confined to whether there was consent to the touching, its sexual nature and the identity of the partner. Mistakes on the complainant’s part (however caused) in relation to matters such as the use of measures for birth-control or to protect against sexually transmitted disease were not relevant to that enquiry.[87]
[86]Ibid [99] (underlining added).
[87]Ibid [135].
In effect, in Kirkpatrick the court (by majority) appeared to apply the opposite reasoning to that which had been applied in Hutchinson (by majority), although there was a significant disagreement between the judges as to what Hutchinson decided.
Putting that issue aside, a study of Hutchinson and Kirkpatrick reveals a lively debate as to whether the use of a condom may be regarded as part of the relevant sexual act when evaluating, for the purpose of the criminal prosecution, whether the complainant consented to that act. What is particularly interesting is the contrast between the definition of the actus reus under the Canadian legislation and that which appears in the Victorian legislation. They could not be more different. On the one hand, there is a broadest of phrases, viz ‘the sexual activity in question’; on the other, there is an itemised list of methods of performing sexual penetration which, itself, is only one among several forms of sexual offence.
If ever there was scope to construe the physical act to which consent is to be directed as extending to the manner or form of its performance, such scope may perhaps exist where the statutory definition of the act is broad and general as with the phrase ‘sexual activity’.[88] But, even with such a broad definition of the sexual act, the Canadian cases illustrate some powerful reasons to resist incorporating within that conception the manner of its performance or anything extending beyond the basic physical act itself.
[88]Interestingly, in the 1980s the Canadian Criminal Code was 'fundamentally restructured' including by shifting away from 'categorising sexual offences based on the nature of the sexual act': Kirkpatrick [2022] SCC 33, [26].
Observing that debate in the context of such a generally described sexual act highlights, by way of contrast, the importance to be attached to the categorised approach which the Victorian Parliament has taken to describing the physical act component in the rape offence. The strong implication in that categorized approach is that the sexual act in respect of which the consent of a complaint is to be assessed is confined to those acts defined in the legislation.

Assange

Justices Niall and Forrest have set out the facts and most of the statutory provisions relevant to the UK High Court decision in Assange v Swedish Prosecution Authority.[89] The question in that case was whether Assange could be guilty of the crime of rape under the Sexual Offences Act 2003 (UK) on the facts alleged. Those facts were, in substance, that the complainant had agreed to have sexual intercourse on the condition that a condom was worn and Assange, aware of that condition, allegedly penetrated the complainant’s vagina with his penis without using a condom.
[89][2011] EWHC 2849.
For present purposes, the relevant elements of rape under the UK Act were that a person (A) ‘intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else’ and ‘B does not consent to the penetration’.
The Court accepted that it may be argued that sexual intercourse without a condom is different to sexual intercourse with a condom.[90] Nevertheless, the Court took the view that if the complainant made it clear that she would only have sexual intercourse if Assange used a condom then it would be open to a jury to find that ‘there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom without her consent’.[91] In substance, in the case before us the Director presses upon us the same view.
[90]Ibid [87].
[91]Ibid [86].
In Assange, the debate turned upon whether the issue of the complainant’s consent to the penetration was answered by considering only whether consent was given according to the basic definition of consent (s 74), or by further reference to the consent-vitiating factors set out in s 76 (including intentional deception as to the ‘nature or purpose’ of the act). The Court adopted the former approach. No (or at least little) attention was given to the question whether the meaning of ‘penetration’, central to the act of sexual intercourse, incorporated any distinction between the use or non-use of a condom. I also note that the expression of the actus reus under the UK Act was relatively general compared to the expression of it in the Victorian Act.
In my view, where the condition imposed is one which relates to the attributes or features of the physical act of sexual penetration, it is not correct to portray such a condition as a mere qualification to the free agreement to engage in the act independently of (and ignoring) the defined character of the act to which the agreement is directed. The Canadian Court fronted up to that problem by choosing to accept that the use of the condom was ‘part’ of the sexual activity to which consent was directed. The English Court conflated the two considerations.

Conclusion

To the extent that the judge held that stealthing was not rape simply because it was not included in a circumstance listed in s 34C(2), I think the judge was in error. Her Honour's concentration on the list of circumstances in s 34C(2) reflects the (misdirected) focus on 'consent' as the source of the answer to whether non-consensual removal of a condom amounted to sexual penetration without consent. But it was not necessary to adopt that analysis to reach the ultimate conclusion that the charge could not be sustained on the facts presented.

The judge may also have been wrong if she considered that the existence of the crime of sexual procurement by fraud (s 57) meant that, as a matter of construction, stealthing could not be rape. There are circumstances that could establish both the crime of rape and the crime of procurement: a person (A) who deceives another (B) to believe that a penetration is necessary for medical purposes, when it is not, would be guilty of both, providing that it was established that A did not reasonably believe that B consented to a penetration of a sexual nature. But, again, I do not think that reasoning was necessary to reach the ultimate conclusion that was reached. I do not think it is necessary to say anything further about the existence of s 57 in order to construe ss 38, 34C and 37D in the way I suggest they ought to be construed.
Sexual intercourse is, to state the obvious, a widely practised activity between adults. The methods, modes and moods by and in which (lawful) sexual activity is performed is as diverse as the diversity of human temperament and preference. Of course, that is not to ignore the propensity of some to abuse and misuse sexual activity and, by doing so, inflict terrible harm on victims, leading to the need to outlaw egregious abusive conduct. But, great care should be taken not to inadvertently criminalise behaviour that would not generally be regarded as unlawful, or assume that the criminal law is the only tool to be used to denounce and deter reprehensible sexual behaviour.[92] The consideration of these imperatives serves to emphasise that the line to be drawn between lawful and criminal sexual intercourse is a particularly delicate subject, of uncommonly broad interest to all members of the community.
[92]See R vWinchester [2014] 1 Qd R 44, [113]; Hutchinson [2014] 1 SCR 346, [18], [21].
In argument before us, numerous permutations and combinations of circumstances were raised to test the line between legal and criminal behaviour assuming that the point of departure from agreed conditions of the act was expressed to be, say, a departure from a condition 'intrinsic to the physical act of penetration'. That discussion exposed real dilemmas and uncertainty as to where the line would or should be drawn.
As the recent Victorian Law Reform Commission (VLRC) report[93] illustrates, if 'stealthing' is to be incorporated into the crime of rape, there are a variety of different means of achieving that outcome legislatively, depending on the language of existing legislative scheme in question and the policy approach adopted by the legislature.[94] Each version might have wider or narrower consequences. NSW and the ACT now have particular provisions that illustrate approaches limited to the use of a condom (but by quite different statutory means).[95] The recommendation of the VLRC is somewhat wider, referring to 'devices to prevent sexually transmitted infections or a contraceptive device';[96] although the recently introduced Bill to the Victorian Parliament has preferred a narrower formulation than the one which was recommended.[97] At the time of writing, it remains to be seen what final form the new law will take, if it is passed.
[93]VLRC, Improving the Justice System Response to Sexual Offences: Report, September 2021 (‘the VLRC report’).
[94]Ibid, paras 14.87–14.89, 14.94–14.96, and Recommendation 51.
[95]Crimes Act 1900 (NSW), s 61HI(5) in which condom use is given as an example of a circumstance in which consent to ‘a particular sexual activity’ (with a condom) is not of itself consent to another (without a condom); Crimes Act 1900 (ACT), s 67(1)(j) which lists, amongst consent-vitiating circumstances, the situation where a person is induced to participate in the act by an intentional misrepresentation about the use of a condom.
[96]VLRC Report, Recommendation 51, 308.
[97]Bill, s 3(1), which would insert in the Act, after s 36(2)(k), ‘(ka) the person engages in the act on the basis that a condom is used and either— (i) before or during the act, any other person involved in the act intentionally removes the condom or tampers with the condom; or (ii) the person who was to use the condom intentionally does not use it’.
These developments illustrate the point that the extent to which behaviour is criminalised in this delicate area is singularly nuanced, and sensitive to the finest of variations to the expressions of the rule. Since 1991, Parliament’s approach to defining the crime of rape has been increasingly prescriptive, manifesting deliberate, incremental development reflective of Parliament’s perceptions of community values. This approach implies an intention that incremental extensions to the statutory offence of rape are, at a fundamental level, to be effected by legislation.
In argument before us, the Director accepted, and indeed argued, that sexual penetration using a condom is different in a material way to sexual penetration without a condom, and that consent to one form of penetration is not consent to another. In this, there is an implicit acceptance that it is the form of the physical act which, on the facts of this case, is the true focus of the element, ‘consent to the penetration’.
The form of the physical act takes its meaning from the definition of ‘sexual penetration’ in the Act. For the purpose of s 38(1)(b), the form of physical act does not take its meaning from any condition subjectively imposed by one of the parties to it. This is where I must part company with Niall and Forrest JJA. I do not accept that the ‘non-satisfaction of the express condition precedent on which consent was given vitiates or negates the complainant’s otherwise free agreement’,[98] once you add to the act of sexual penetration. Nor do I accept that the analysis I prefer isolates the physical act of penetration from the circumstances in which the consent is given.[99] In my opinion, my analysis accepts that ‘consent to the penetration’ is a composite phrase, but it respects and applies the different roles which each term plays in that phrase.
[98]Above [92].
[99]Compare above [90].
The gravamen of Niall and Forrest JJA’s view is found in the statement that ‘free agreement extends to the freedom to choose the manner in which physical penetration is to occur, and the requirement to wear a condom is inextricably bound up with the act of penetration and inseparable from the issue of consent’.[100] For the purpose of the phrase ‘consent to the penetration’, to my way of thinking this analysis employs the mindset of the complainant (consent) to effect a refinement to the physical character of the act, the sexual penetration. At the risk of oversimplification, the verb (consent) performs the work of the noun (penetration).
[100]Above [92].
Giving effect to a qualification to ‘free agreement’ which goes to the physical manner in which sexual penetration is to be performed, is tantamount to refining the meaning of the sexual penetration to which that agreement is to be given. In the context of the Act, in which the boundaries of sexual penetration are so closely defined, this construction of s 34C(1) is not available. It may be available within a different statutory context — such as in Canada where, under the Code, the object of the agreement is very loosely described — but not here.
And while I accept that the list of consent-vitiating circumstances in s 34C(2) is not exclusive so that the categories are not closed, equally, the door is not left widely ajar. In the version of the Act under scrutiny, for the reasons I have explained, that door is not open widely enough to permit the implied addition to s 34C(2) of a category that hinges on the physical manner in which sexual penetration is performed.
In my opinion, the meaning of the Act can be discerned by applying the analysis I have preferred. But, even if after applying the ordinary rules of construction[101] there is, at least, real doubt or ambiguity about the proper interpretation of s 38(1)(b) in its full statutory context, then, as the last resort, the matter should be resolved by preferring the construction that does not extend the crime of rape to the practice of ‘stealthing’.[102]
[101]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–47, [47]; [2009] HCA 41.
[102]Beckwith v The Queen (1976) 135 CLR 569, 576; [1976] HCA 55; Waugh v Kippen (1986) 160 CLR 156, 164; [1986] HCA 12; R v A2 (2019) 269 CLR 507, 525–526, [52]; [2019] HCA 35. See also Herzfeld and Prince, Interpretation, 2^nd ed, [10.90]; Pearce and Geddes, Statutory Interpretation in Australia, 8^th ed, [9.9].
In short:
•The Crimes Act defines rape, relevantly, as the penile penetration of a person's anus without that person's consent.
•Here, the complainant consented to his anus being penetrated by the accused's penis.
•With his penis, the accused did sexually penetrate the complainant's anus believing the complainant consented to him doing so.
•On those facts, the accused cannot be guilty of the crime of rape. That is, even if the complainant conditioned his consent to the act of penetration upon the accused wearing a condom, despite the accused’s intentional failure to wear a condom during penetration while aware of that condition the complainant nevertheless consented to the penetration for the purpose of s 38(1)(b) of the Act.
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[2022] VSCA 179

26 August 2022