R v A
[2002] NZCA 394
•1 August 2002
| ORDER PROHIBITING PUBLICATION OF NAMES OR PARTICULARS IDENTIFYING APPELLANTS UNTIL AFTER TRIAL | |
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA144/02 CA145/02 |
THE QUEEN
V
“A” AND “B”
| Hearing: | 17 July 2002 |
| Coram: | Tipping J Glazebrook J Williams J |
| Appearances: | S P France for Appellant F D Steedman for Respondent Ms A D G Harvey for Respondent Mr B |
| Judgment: | 1 August 2002 |
| JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J |
Issue
The issue in this appeal is whether a woman can be charged with unlawful sexual connection occasioned by the penetration of her genitalia by a penis without the male’s consent. In a reserved judgment (R v A and B, T22/01, HC Palmerston North, 3 May 2002) Neazor J quashed a charge to that effect against the appellant, Ms A, pursuant to the Crimes Act 1961 s342 as not stating in substance a crime. The Solicitor-General appealed. This judgment deals with that appeal.
Facts
The relevant facts can be shortly stated.
The Crown’s allegations are that while the two accused were living together D, the son of the accused, Mr B, came to live with them as a result of change in custody brought about through school and family difficulties. He was then 14 years of age. His evidence at depositions was that whilst he was living in the household his father made him have full intercourse with the accused, Ms A, on some fifteen occasions despite his lack of consent. D’s evidence was also to the effect that Mr B was present on a number of occasions when he had intercourse with Ms A and threatened D if he declined to comply with Mr B’s demands.
D’s deposition makes clear that if the offence of sexual violation lies against Ms A in law, there is evidence from which a jury could conclude, first, that penetration of Ms A by D occurred and, secondly, that the intercourse took place without D’s consent and without Ms A believing on reasonable grounds that D consented.
As a result, in addition to a count of ill-treating D under the Crimes Act 1961 s195 arising out of the same activity, Ms A and Mr B are charged representatively pursuant to the Crimes Act 1961 ss128 and 66 that they sexually violated D, by “unlawful sexual connection occasioned by the penetration of [Ms A’s] genitalia” by D’s penis.
Crimes Act 1961 s128
To set the background against which this appeal was argued, it is pertinent to set out s128 which reads :
128 Sexual violation
(1) Sexual violation is—
(a) The act of a male who rapes a female; or
(b) The act of a person having unlawful sexual connection with another person.
(2) A male rapes a female if he has sexual connection with that female occasioned by the penetration of her [genitalia] by his penis—
(a) Without her consent; and
(b) Without believing on reasonable grounds that she consents to that sexual connection.
(3) A person has unlawful sexual connection with another person if that person has sexual connection with the other person—
(a) Without the consent of the other person; and
(b) Without believing on reasonable grounds that the other person consents to that sexual connection.
(4) A person may be convicted of sexual violation in respect of sexual connection with another person notwithstanding that those persons were married to each other at the time of that sexual connection.
(5) For the purposes of this section, sexual connection means—
(a) Connection occasioned by the penetration of the [genitalia] or the anus of any person by—
(i) Any part of the body of any other person; or
(ii) Any object held or manipulated by any other person,—
otherwise than for bona fide medical purposes:
(b) Connection between the mouth or tongue of any person and any part of the genitalia of any other person:
(c) The continuation of sexual connection as described in either paragraph (a) or paragraph (b) of this subsection.
Judgment under Appeal and Submissions
Neazor J, after summarising counsel’s submissions, turned to extracts from Hansard which had been put before him of the Parliamentary debate when s128 and other sections dealing with sexual crimes were amended in 1985. The learned Judge held (para [17] p 7) that the changes were “put in hand primarily to deal with issues arising from sexual assaults on women” as was demonstrated by the retention of rape as one means by which the then new offence named sexual violation could be committed. The Judge then referred to s129A before concluding (paras [25]-[27] pp 10-11) :
[25] It is against that background that the words of s128, which uses the term “sexual connection” rather than “sexual intercourse”, have to be interpreted. Section 128(1) makes the act of rape and any other act of unlawful sexual connection equivalent to each other as constituting sexual violation. Section 128(2) relating to rape of necessity makes the penetrative act the one which leads to criminal consequences. Section 128(3), like s129A speaks of “a person” having sexual connection with another person, not of two persons having connection, one of them not consenting. Section 128(5)(a) then provides that sexual connection means two kinds of penetrative acts – one by part of the body, one by an object. Section 128(5)(b) as to oral connection stands alone …
[26] The use of the expression “occasioned by” in s128(5)(a), means “caused by” and is a better verbal construction, when the definition covers more than direct body to body contact, than “penetration” standing alone would. …
[27] In the context of the history of this provision I have no doubt that the legislation did not regard sexual connection without consent as an activity in which both persons were participating … rather, that it was an activity essentially involving action by one person and an unwillingness by another person to be subjected to that action. That view would be as applicable to oral/genital contact as it is to penetrative activity. There is nothing in the section which suggests that it was ever contemplated that the criminality created by the section would attach to the recipient of the physical attention.
In this Court Mr France for the Crown – who had not been counsel in the High Court – submitted that the effect of the ruling was that where penetration of a woman’s genitalia is involved the victim must be the woman. He argued this was in error in that it imported a gender requirement not mandated by the plain words of the section. He submitted that s128(1)(b) was gender-neutral and that, for the purposes of this appeal, “sexual connection” under s128(5) was connection occasioned by the penetration of the genitalia of Ms A by any part of the body, namely the penis, of another person, namely D. This amounted to an offence under s128(3) on the basis that Ms A’s actions amounted to her, as a person, having unlawful sexual connection with another person, namely D, by that person, Ms A, having sexual connection with the other person, D, without D’s consent or without Ms A believing on reasonable grounds that D consented. He submitted the Judge was in error in concluding that ss128 and 129A could not result in the “recipient of the physical attention” being charged. Mr France acknowledged, however, that there were anomalies in the wording of the sexual offences in the Crimes Act 1961. They included, if the judgment stood, that Ms A would be immune from prosecution despite having engaged in the activity which gave rise to the charge, and the fact that, according to the judgment, Ms A could be guilty of sexual violation if she had induced D to have oral sex with her or participated in digital or other penetration of her anus by D but not if she induced him to have intercourse. Since it had been relied on in the Court below, Mr France, too, relied on passages from Hansard but conceded that they were of little assistance in this case.
The arguments on behalf of the accused were fourfold. The first was that, while s128(1)(b) refers to a person and penetration of the genitalia by any part of the body of any other person, the intention was that the person penetrated be the victim and not that the person penetrating be the victim. This was clear from the Parliamentary debates at the time. The second argument was that Parliament singled out the offence of rape (which clearly has the woman as the victim and the man as the perpetrator) and thus by necessary implication took non-consensual intercourse out of s128(1)(b) and made it gender specific. The third argument was that the scheme of the Act is that there is gender discrimination in the sexual offences sections so that women for example cannot be guilty of indecent assault against boys or men. The interpretation put forward by the accused best accords with the scheme of those provisions as those provisions show a statutory bias in favour of women. The fourth argument (which is really a variant of the third) was that it is clear that men alone can be guilty of many of the sexual offences set out in the Act. Even in those sections Parliament will often employ gender neutral language in some part of the sections. As this is the case the fact that the word person is used in s128(1)(b) is not determinative. As the situation is at best unclear it was submitted that the principle that a statute should be interpreted in the manner most favourable to an accused should be applied.
Discussion
We must first observe that, although reference to Hansard is now common, the Court's task is to construe the statute. Where the words used by Parliament are not of themselves ambiguous reference to a general debate in Parliament, especially where the particular point at issue is not mentioned specifically, will seldom, if ever, be of assistance. For those reasons this case was not one where we found the references to Hansard helpful.
Turning to the statutory terms used, we consider, first, the terms of s128, secondly, the provisions of other sexual crimes, ss127-142 and thirdly, such little precedent as there is on the topic.
Section 128 combines two separate types of behaviour, namely rape and unlawful sexual connection, the latter a new term first enacted in 1985. Either can amount to the crime of sexual violation.
Sections 128(1)(a) and 128(2) define the long-standing and gender-specific offence of rape by a male having sexual connection with a female, occasioned by penetration of her genitalia by his penis without her consent and without his believing in her consent on reasonable grounds. That offence has always been capable of being committed only by a man.
Sections 128(1)(b) and 128(3) created what was in 1985 a new offence of sexual violation. That offence occurred when a person had unlawful sexual connection with another person by having sexual connection with that other person without their consent and without believing in consent on reasonable grounds. It is to be immediately noted that this form of sexual violation is gender-neutral in its language.
The only factor common to both modes of commission comprehended in the offence of sexual violation under s128 is that both depend on proof of “sexual connection” as defined in s128(5). What is important for present purposes is that s128(5) is also gender-neutral. This disposes of the accused’s argument that singling out the offence of rape necessarily implies that non-consensual intercourse that is not rape is not covered in the gender-neutral s128 (1)(b). The gender-specific offence of rape is a subset of the wider and gender-neutral matters covered by the section.
It must therefore follow that although the charge of sexual violation in s128(1)(a) and (2) can only arise in respect of actions of a male on a female which fulfil the requirements of that form of sexual violation, no such gender limitation arises from the statutory language in respect of a charge of sexual violation arising out of unlawful sexual connection under ss128(1)(b) and 128(3).
As a matter of statutory interpretation it must follow, as Mr France submitted, that a person, whether male or female, can be charged with unlawful sexual connection with another person, again whether male or female, if, without the consent of that other person or without the actor believing in the other person’s consent on reasonable grounds, the actor does acts which come within the definition of “sexual connection” in s128(5). The prosecution’s first task under s128(5) is to prove sexual connection. That can arise through proof of :
[a]penetration of the genitalia or anus of any person, male or female, by any part of the body or any object held by any other person, again male or female (other than for bona fide medical purposes); or
[b]connection between the mouth or tongue of any person, male or female, and any part of the genitalia of any other person, again either male or female; or
[c]continuation of such sexual connection (s28(5)(c)).
(The fact that penetration of the male genitalia would only arise in most unusual circumstances does not affect the question of interpretation.)
Whilst, of course, the phrases “any person” and “any other person” in s128(5)(a) usually refer to the complainant and accused respectively, it is not necessary in terms of the statutory language for that to be the case. The roles are, of course, normally reversed under s128(5)(b) so that the phrases “any person” and “any other person” usually refer to the accused and complainant respectively. However, there is no reason in terms of the interpretation of s128 why the roles commonly found cannot be reversed both for the purposes of s128(5)(a) and (b) and thus for ss128(1)(b) and 128(3). In this case we have, in terms of s128(5), penetration of the genitalia of any person (A) by any part of the body (penis) of any other person (D).
Turning to consider those who may be charged with sexual crimes other than sexual violation, that reading of s128 is broadly consistent with those who may be charged with sexual crimes under ss127-142 though the sections are not entirely internally harmonious in that regard, no doubt because of the piecemeal way in which they have been amended over the years. The accused’s arguments as to the scheme of the Act being not to charge women may have had more force if in 1985 there had been a general review of all the sexual crimes at that stage.
Of the sexual crimes other than ss128-129A inclusive only women can be charged with indecent acts between women and girls under s139 but both males or females can be charged with incest (s130) and conspiracy to induce sexual intercourse (s136). While both genders would seem to be capable of being charged with indecent assaults on girls under 12 and between 12 and 16 under ss133(1)(a) and 134(2)(a), it would be more usual for a woman accused to be charged under s139. Only males can be charged with all other sexual crimes as a principal either because the sections include phrases such as “being a male” or because of the nature of the elements of the offences.
That review indicates that there is no reason to confine the operation of ss128(1)(b) and 128(3) in the manner appearing in the judgment under appeal.
Turning to precedent, such little authority as there is supports this Court’s interpretation of ss128(1)(b) and 128(3) - though the question now in issue does not appear ever to have been argued.
In R v Herbert (CA70/98 21 May 1998) this Court dealt with a sentence appeal where the woman appellant had been convicted on a representative charge of sexually violating a boy aged 10 to 11 years by unlawful sexual connection occasioned by the penetration of her vagina by his penis. She stayed with the boy’s mother and her family and encouraged the boy to have intercourse with her on a number of occasions. The sentencing Judge had noted that there were no reported cases in which female offenders had been sentenced for sexual violation of young males in similar circumstances but this Court observed, in dismissing the appeal (p 3) :
Although there are no reported decisions in New Zealand involving facts exactly parallel to those in the present case, the principles are clear enough and children of either gender are required protection by the law from sexual exploitation by adult offenders of either gender. In the present case the appellant repeatedly violated the victim for her own sexual gratification. Whether or not there was coercion, physical or otherwise, on her part after the first incident of sexual intercourse does not render the situation any less one of abuse. Given the age of the victim, no issue of consent can credibly arise: his immaturity and lack of understanding of the nature and quality of the acts in which he was engaging must preclude the notion of any true consent.
In R v J and A (T.000963 HC Auckland) the woman accused J pleaded guilty not to incest but to charges of sexual violation including penetration of her genitalia by her 8-year-old son on a number of occasions when he was living with her and her de facto partner, A. The sentencing Judge (15 August 2000 Tompkins J para [6] p 3) noted that “there is no sentencing pattern for offending of this kind because, fortunately, serious sexual abuse by a mother on her child is rare”, going on to observe (para [7] p3) that “although not technically, in practical terms, it amounted to the frequent rape of an 8-10 year old”. A was charged with three representative charges of sexual violation. He had encouraged the actions which gave rise to the charges against J and was regarded by the sentencing Judge as having greater culpability in the actions concerning the boy. On appeal, his 10 year sentence was reduced to 8½ years’ imprisonment on disparity grounds (R v A CA311/01, 26 March 2002).
In those cases there was no suggestion that the actions of the woman could not amount to the offence of sexual violation under ss128(1)(b) and 128(3).
Summary
We have engaged in the foregoing discussion in order fully to address the arguments of counsel for the respondents. In the end, however, the point turns on the application to the facts of the relevant words of s128. The crime of sexual violation has a physical element (the actus reus) and mental elements, both on the part of the complainant and the accused. The Crown must prove (1) that the accused took part in qualifying physical conduct with the complainant; (2) without the complainant’s consent; and (3) without the accused believing on reasonable grounds that the complainant was consenting. Elements (2) and (3) are not relevant to the present issue which is concerned with what conduct can amount to the actus reus of sexual violation.
That conduct can be penetration of the female genitalia by the penis (ie. rape) where a male is the person accused, or sexual connection in any of the forms specified in s128(5), in which event either a male or a female may be the person accused. Paras (a) and (b) of s128(1) make this distinction in that para (a) refers to the act of a male and para (b) to the act of any person. Hence, whether what happened in this case is capable of being a crime depends on whether the physical conduct engaged in by the accused comes within the definition of sexual connection set out in subs (5).
Relevantly for present purposes sexual connection means connection occasioned by the penetration of the genitalia of any person (person 1) by any part of the body of any other person (person 2). The Crown alleges that the genitalia of Ms A (person 1) were penetrated by a part of the body of D (person 2), ie. his penis. The fact that it is the complainant D whose body part penetrated the accused’s genitalia does not prevent the definition of sexual connection from being fulfilled. The definition is couched in neutral language, both as to gender and as to which party is the penetrator and which the person penetrated.
The relevant mental states which the Crown must prove obviously depend on which person is the complainant and which the accused. The actus reus does not, however, depend on that distinction. All that is necessary is that the conduct with which the accused is charged comes within the definition of sexual connection. Here it does because the accused, Ms A, had sexual connection with the complainant, D, occasioned by the penetration of her genitalia by his penis. If such connection was without his consent, and without her believing on reasonable grounds that he consented, she committed the crime of sexual violation. That result follows inevitably from the terms in which Parliament has constituted the crime.
Conclusions
For all those reasons, we conclude, with respect, that the judgment under appeal was in error and that, in factual circumstances such as apply in this case, there is no reason in law why a woman cannot be charged with committing sexual violation by having unlawful sexual connection with another person, a male, when the unlawful sexual connection involves penetration of her by that other person in terms of s128(5)(a) and without that other person’s consent or the woman’s belief in his consent on reasonable grounds.
Result
The appeal is accordingly allowed.
Solicitors
Crown Law Office, Wellington
Fergus Steedman, Palmerston North, for Ms A
Duncan Harvey, Palmerston North, for Mr B
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