LAW 638

124342

Human rights and the law of sex offences Drawing

lines in shifting sands

On its face, there is clearly some tension here between the declaration of
fundamental rights and the declaration of victims rights. This is
symptomatic of a more widespread tension between the universality of
human rights and concreteness of the legal practises in which it emerges,
as well as the embedded quality of the social practises it wants to
manage.1

1 Peter D. Rush in Clare McGlynn and Vanessa E. Munros (eds) Rethinking Rape
Law (2010) 240.
1

LAW 638

124342

This essay will discuss the human rights implications of sexual offences in
the Tasmanian judicial context. It draws upon a number of international
covenants and treaties to illustrate a standard that can be applied to the
Tasmanian law in order to better articulate the interests of those involved
in a sexual offence matter. This essay contemplates these rights in
relation to the statutory definitions of both rape2 and consent3 under the
Tasmanian Criminal Code. It also considers the implementation of this
legislation, as well as the application of the laws of evidence 4, in light of
current procedural practise. In conclusion this essay establishes that it is
inevitable that some rights will be compromised in judicial proceedings
pertaining to the prosecution of sexual offences. It is therefore of pivotal
importance that all parties are equally equipped and represented by the
law throughout this process,5 and that public discourse continues in
relation to the shifting boundaries of lawful and unlawful sex.
In the context of sexual offences, this essay identifies a number of key
provisions which may inform6 the creation and implementation of
2 Criminal Code 1924 (Tas) s 185.
3 Criminal Code 1924 (Tas) s 2A.
4 Evidence Act 2001 (Tas).
5 See Fiona E. Raitt in Clare McGlynn and Vanessa E. Munros (eds) Rethinking
Rape Law (2010) 268.
6 In the absence of an Australian charter or bill of rights, human rights law in
Australia stems from specific domestic legislation, such as the Racial
Discrimination Act 1975 (Cth), several select common law rights and through the
recognition of International agreements and treaties. It is therefore difficult to
2

LAW 638

124342

legislation governing sexual offences in Tasmania. These provisions

demonstrate standards that have been established in other jurisdictions
regarding the rights that ought to be enjoyed by both defendants and
complainants in criminal proceedings.7 The legislation this essay will draw
upon includes international agreements such as the Universal Declaration
of Human Rights (UDHR), the International Covenant on Civil and Political
Rights (ICCPR) and the European Convention on Human Rights (ECHR).
The recent developments regarding the Victorian Charter of Human Rights
and Responsibilities and the High Court decision in Momcilovic8 are also
an interesting case study within the domestic law context 9. These
declarations can be juxtaposed with the Criminal Code Act 1924 (Tas) (the
Code) and the Evidence Act 2001 (Tas) in order to illustrate the human
rights implications of sexual offences in the Tasmanian jurisdiction.

THE STATUTORY DEFINITIONS OF RAPE AND CONSENT

discern whether such principles are binding on Australian courts, or where the
judiciary will choose to recognise them. However, for the purpose of this essay,
these provisions provide a general standard that can be applied in order to better
understand the complex rights of all respective players involved in sexual
offence matters.
7 The rights this essay implicates are also critical for the law itself, and for the
institution of the judiciary, as will be further discussed.
8 Momcilovic v The Queen & Ors [2011] HCA 34.
9 See also the Australian Constitution s 80.
3

LAW 638

124342

The codification of the crime of rape has been subject to ongoing reform. 10
This is in part due to the attempts of the legislature to better delineate the
context in which the generally accepted behaviour of sexual intercourse
ought to constitute a criminal offence.11 Legislators are in effect searching
for a grand theory, founded in moral certainty, which will identify the
particular scenarios in which an offender is deserving of conviction. 12
However, the equation of law with Platonic ideals of morality 13 is a
dangerous assumption as it presupposes the existence of commonly held,
moral objectives. This is not consistent with the views of contemporary
commentators, such as Ngaire Naffine, who recognises that morality is a
relative concept.14 The law therefore ought to reflect the complex society
in which it is to operate and the interests of the real people and real
institutions15 that Naffine articulates. This requires a careful balancing of
the values of current society, with notions of what is just and equitable.16
10 Criminal Code Amendment (Sexual Offences) Act 1987 (Tas) and Criminal
Code Amendment (Consent) Act 2004 (Tas).
11 Kate Warner Sexual Offending: Victim, Gender and Sentencing Dilemmas in
Duncan Chappell and Paul Wilson (eds) Issues in Australian Crime and Criminal
Justice (2005) 236-7.
12 Note Ngaire Naffines notions of mala in se and mala prohibita in Ngaire
Naffine Moral Uncertainties of Rape and Murder: Problems at the Core of
Criminal Law Theory in McSherry B, Norrie A and Bronitt S (eds) Regulating
Deviance (Hart Publishing, 2009).
13 For an example, see Platos allegory of The Cave.
14 Ngaire Naffine Moral Uncertainties of Rape and Murder: Problems at the Core
of Criminal Law Theory in McSherry B, Norrie A and Bronitt S (eds) Regulating
Deviance (Hart Publishing, 2009).
15 ibid.
16 Clearly, this is a difficult task as notions of what is just and equitable naturally
extend from the values society holds. See Cockburn H, The Impact of Introducing
an Affirmative Model of Consent and Changes to the Defence of Mistake in
4

LAW 638

124342

The task of the legislator is thus inherently difficult as the codification of a

crime must be applicable to a variety of differing scenarios. Further, it
should recognise the parties affected by the act of committing and
convicting an offence, including the rights and interests of the accused,
the complainant, the public and the construct of the law itself. If the crime
of rape is defined too broadly, the right of a defendant to be innocent until
proven guilty17 and the right to a fair trial18 may be unduly compromised if
conviction occurs without due investigation into the complainants claims.
Conversely, if the provision is too specific and convictions do not
correspond with the harm inflicted, this may cause further harm to the
complainant and arguably is not in the interests of the public. 19
Furthermore, it is in the interests of the law and legal institutions that the
law is consistent with societal values and that it is applied fairly. The
conflicts between these amalgams of interests and rights are evident
upon closer analysis of the Tasmanian situation.
The crime of rape under the Code establishes that where sexual
intercourse20 occurs in the absence of valid consent the perpetrating party
Tasmanian Rape Trials (University of Tasmania, 2012) 190.
17 See, for example, the International Covenant on Civil and Political Rights, s
14(2) and the Universal Declaration of Human Rights, article 11(1).
18 See, for example, the International Covenant on Civil and Political Rights, s
14(1), Charter for Human Rights and Responsibilities Act 2006 (Vic) s 24 and the
Universal Declaration of Human Rights, article 10.
19 For a discussion on the contraction and expansion of the scope of the
definition of rape see Peter D. Rush in Clare McGlynn and Vanessa E. Munros
(eds) Rethinking Rape Law (2010) 244.
20 Sexual intercourse is defined under the Criminal Code Act 1924 (Tas) s 1 as
penetration to the least degree of the vagina, genitalia, anus, or mouth by the
penis and includes the continuation of sexual intercourse after such penetration.
5

LAW 638

124342

is guilty of an offence.21 The key element to be established and negated

by the court is whether or not the required consent exists on the facts.
The definition of consent and its interpretation by the court is therefore an
influential factor in establishing the criminal liability of the accused. In the
Tasmanian jurisdiction recent reforms22 have implemented an affirmative
model of consent, which places a greater onus on the accused and goes
some way in addressing the traditionally held sexist stigmas surrounding
complainants in rape cases.23
This model has received mixed reviews. Dan Subotnik argues that it is
neither practical nor appropriate to apply an affirmative model of consent
to the fundamentally animalistic behaviour of sexual intercourse, 24 and
that the model unfairly prejudices the accuseds right to be deemed
innocent until proven guilty. Alternatively, Helen Cockburn contends that
the reforms may be largely symbolic, and that without broad attitudinal
change at the societal level, the state of the law remains at odds with the
rights and interests of complainants.25 This is particularly resonant in
21 Tasmanian Criminal Code, s 185.
22 Criminal Code Amendment (Sexual Offences) Act 1987 (Tas) and Criminal
Code Amendment (Consent) Act 2004 (Tas).
23 Kate Warner highlights the focus of the reforms in defining consent in positive
terms as to more properly reflect the two objectives of sexual offences: the
protection of sexual autonomy and freedom of choice for adults, see Kate
Warner Sexual Offending: Victim, Gender and Sentencing Dilemmas in Duncan
Chappell and Paul Wilson (eds) Issues in Australian Crime and Criminal Justice
(2005) 240.
24 Royal College of Art London, Rape and the Law: He Said, She Said (2010)
YouTube <http://www.youtube.com/watch?v=vmM5X-NSUhc> at 24 May 2013.
25 Cockburn H, The Impact of Introducing an Affirmative Model of Consent and
Changes to the Defence of Mistake in Tasmanian Rape Trials (University of
Tasmania, 2012) 188.
6

LAW 638

124342

relation to female complainants, and it has been suggested that the state
plays some role in indirectly fostering the subordination of women in
society.26 This is evinced further below.

PROCEDURE AT TRIAL IN RAPE CASES

In the context of human rights, procedural rules and the laws of evidence
provide the greatest challenge to party interests in sexual offence
matters. This is the result of the influence of the judiciary and its capacity
to interpret legislation in light of societal standards and their personal
beliefs and values, as well as the powers exercised by public juries. Rape
shield legislation has been enacted in Tasmania by virtue of s 194M of the
Evidence Act 2001 (Tas) to protect complainants against the armoury of
intimidating tactics employed by the defence 27, and to prevent juries from
making prejudicial assumptions about the complainants sexual integrity.
However, the legislation has not operated as it should, as in most cases
evidence relating to the complainants sexual experience is deemed
admissible under the exceptions to s 194M in s 194M(2)-(3) 28. This has led
critics to argue that the capacity for rape shield legislation to produce
26 Alice Edwards in Clare McGlynn and Vanessa E. Munros (eds) Rethinking
Rape Law (2010) 96.
27 Fiona E. Raitt in Clare McGlynn and Vanessa E. Munros (eds) Rethinking Rape
Law (2010) 274.
28 The Evidence Act 2001 (Tas) s 194M(2) states A magistrate or judge must not
grant leave unless satisfied that (a) the evidence sought to be adduced or
elicited has direct and substantial relevance to a fact or matter in issue; and (b)
the probative value of the evidence outweighs any distress, humiliation or
embarrassment which the person against whom the crime or offence is alleged
to have been committed might suffer as a result of the admission of evidence.
7

LAW 638

124342

instrumental change is limited,29 until the rights of victims in the trial

context are given greater recognition by the legal profession.
Therefore, the human rights debate regarding rape trial process is
perceived as a direct conflict between the interests of the defendant and
the interests of the complainant. On the one hand, defendants possess a
firmly entrenched right to a fair trial, in which they are deemed innocent
until proven guilty. This right is recognised under s 14(2) 30 of the ICCPR
and per Article 11(1)31 of the UDHR, and was positively reaffirmed by the
Australian High Court in the cases of R v Oakes32 and Momcilovic33. Such
rights are justified by the rule of law, and are at the heart of adversarial
system.34
Comparatively, victim lobbies are critical of the defendant-protective
philosophical base from which judicial process operates. 35 Although the
afore noted instruments of human rights law do not expressly articulate
rights of the complainant, it is contended by some scholars such as Fiona
E. Raitt that it is possible to interpret several articles of the ECHR as
recognising the interests of victims in rape trial scenarios. 36 Such

29 Fiona E. Raitt in Clare McGlynn and Vanessa E. Munros (eds) Rethinking Rape
Law (2010) 273.
30 International Covenant on Civil and Political Rights, s 14(2).
31 Universal Declaration of Human Rights, article 11(1).
32 R v Oakes [1986] 1 SCR 103.
33 Momcilovic v The Queen & Ors [2011] HCA 34.
34 Jeremy Gans et al, Criminal process and Human Rights (2011) 498.
35 ibid 512-513.
8

LAW 638

124342

interpretation is evinced in the Canadian jurisdiction by LHeureux Dub J,

who argues passionately that a
fair legal system requires respect at all times for the complainant's
personal dignity, and in particular his or her right to privacy,
equality and security of the person.37
Further, LHeureux Dub J implores that such rights should be placed on
equal footing with those of accused persons. 38 Thus it remains to be
adduced how the judicial system is to consolidate the rights of defendants
with the interests of complainants. It has been suggested in public
discourse that due to the extent of previous legislative reform, the
impediment for greater justice in the rape cases lies with society and their
belief in so-called rape myths.39

SEXISM AND SEXUAL OFFENCES

Kate Warner has stated that while it may be relatively simple to change
the meaning of rape in the statute books, changing its meaning in

36 Fiona E. Raitt in Clare McGlynn and Vanessa E. Munros (eds) Rethinking Rape
Law (2010) 276, specifically, ss 3, 18, 13 of the European Convention on Human
Rights.
37 LHeureux Dub J in R v OConnor [1995] 4 SCR 411 at 154. For recognition of
privacy rights in the Australian context see Toonen v Australia, Communication
No. 488/1992.
38 ibid.
39 Royal College of Art London, Rape and the Law: He Said, She Said (2010)
YouTube <http://www.youtube.com/watch?v=vmM5X-NSUhc> at 24 May 2013.
9

LAW 638

124342

practise is another matter.40 Here Warner is referring to social perceptions

of what rape is and is not, and the influence these perceptions have on
the indictment of sex offenders. Arguably, previous reform has failed to
acknowledge rape as a gendered crime 41 and that attitudes towards rape
come from the same place as societys attitude towards women
generally.42 This process is cyclical as the law also impacts significantly
upon societal values, and thus both need to be considered in conjunction
with the other. As noted earlier in this paper, the rationalisation of social
understandings with the prescriptions of the legislature is an inherently
difficult task. However as Warner articulates, the struggle to address the
underlying masculinist assumptions that structure the law ought to
continue, so that legal understandings of the harms related to rape reflect
the experiences of victims.43

REFORM OBJECTIVES FOR THE FUTURE

40 Kate Warner Sexual Offending: Victim, Gender and Sentencing Dilemmas in

Duncan Chappell and Paul Wilson (eds) Issues in Australian Crime and Criminal
Justice (2005) 247.
41 Peter D. Rush in Clare McGlynn and Vanessa E. Munros (eds) Rethinking Rape
Law (2010) 238.
42 Marguerite Russell in Royal College of Art London, Rape and the Law: He Said,
She Said (2010) YouTube <http://www.youtube.com/watch?v=vmM5X-NSUhc> at
24 May 2013.
43 Kate Warner Sexual Offending: Victim, Gender and Sentencing Dilemmas in
Duncan Chappell and Paul Wilson (eds) Issues in Australian Crime and Criminal
Justice (2005) 249.
10

LAW 638

124342

It is difficult to say definitively why past reforms to the law of sexual

offences in Tasmania have had only limited success. One possibility that is
suggested is that the reforms meet continuing resistance from the public,
and therefore reconstructing the legal definition of rape alone may not be
sufficient to effect real reform. 44 This has led commentators to propose a
number of new and creative reforms, which range from the sublime to the
ridiculous.45 One proposition as advocated by Raitt is the introduction of
independent legal representation (ILR) for complainants in rape trials. 46
Undoubtedly, the implication of such a scheme would go some way in
ensuring that the trial process is not excessively isolating and intimidating
for victims, and that complainants are able to participate effectively. 47
Warner has also suggested that guidelines for judges, specifying the
requirements of their directions to juries and their use of s 194M(2), would
also be appropriate.48 Finally however, a warning should be sounded
regarding reform objectives which are too far removed from the consensus
of beliefs held by general society. In a similar vein, Helen Reece supposes
that perhaps the views of society are justified, and that it would be

44 Peter D. Rush in Clare McGlynn and Vanessa E. Munros (eds) Rethinking

Rape Law (2010) 238.
45 Royal College of Art London, Rape and the Law: He Said, She Said (2010)
YouTube <http://www.youtube.com/watch?v=vmM5X-NSUhc> at 24 May 2013
46 Fiona E. Raitt in Clare McGlynn and Vanessa E. Munros (eds) Rethinking Rape
Law (2010) 268.
47 ibid.
48 Kate Warner Sexual Offending: Victim, Gender and Sentencing Dilemmas in
Duncan Chappell and Paul Wilson (eds) Issues in Australian Crime and Criminal
Justice (2005) 248.
11

LAW 638

124342

inappropriate to hold out the views of a minority of reformers as the right

perspective to be taken.

49

CONCLUDING COMMENTS
This essay has demonstrated the difficulties involved in establishing just
and equitable laws governing sexual offences in Tasmania. The application
of human rights principles to the definition of rape under the Code and the
laws of evidence applicable at trial demonstrates the multiplicity of
interests that the law has a moral and legal duty to uphold. Further, as the
title of this paper suggests, the implication of principles of human rights is
problematic given the sovereignty of national law and the day to day
social behaviours it tries to rationalise. Nevertheless, this essay concludes
that continuing discourse on this topic is inexhaustibly beneficial to the
creation and implementation of the best possible legislative and
procedural law regarding sexual offences. As Warner recognises, this
requires a collective approach to reform which provokes lawyers, judges,
juries and the public to reflect critically about what constitutes rape and
the shifting boundaries between rape and lawful sex. Clearly, as Warner
implores, we cannot leave sexual assault to the criminal law alone.50
49 Helen Reece in Royal College of Art London, Rape and the Law: He Said, She
Said (2010) YouTube <http://www.youtube.com/watch?v=vmM5X-NSUhc> at 24
May 2013.
50 Kate Warner Sexual Offending: Victim, Gender and Sentencing Dilemmas in
Duncan Chappell and Paul Wilson (eds) Issues in Australian Crime and Criminal
Justice (2005) 248.
12

LAW 638

124342

1,990 words.

13