DPP v Yeong [2022] VSCA 179 | Case summary

DPP v Yeong [2022] VSCA 179 | Case summary | Zoe

[7]

The following is largely taken from the facts as recorded by the judge in her Ruling.[5]
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.

[30]

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.
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.

[34]

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.

[42]

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]
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]
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]
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.
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]
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:

[55]

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.
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.

[56]

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]
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.
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]
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.

[63]

(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.

[77]

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.

[81]

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).
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.
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]
Usefully, the majority distinguished the two competing approaches to the question of what constitutes 'voluntary agreement to the sexual activity in question':

[83]

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.
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]
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.
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.

[84]

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.
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.
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.

[85]

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.
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.
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.
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).
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]
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.

DPP v Yeong

At a glance

Court

Decision date

Before

Source

Judgment (156 paragraphs)

DPP v Yeong (a pseudonym) [2022] VSCA 179 (26 August 2022)

Parties

Legislation Cited (6)

Cases Cited (9)