JUDGE1
COX J The appellant was arraigned before Prior J last January on an
information
that charged him with two counts of unlawful sexual intercourse
with a person under 12. He pleaded not guilty. The alleged victim
was a
little girl of four with whose mother the appellant was living. The
particulars on each count were that the appellant performed
an act of
cunnilingus upon the child. Evidently the child made a complaint to her
mother and as a result the appellant was interviewed
by the police. The only
explicit evidence in the committal papers of what the appellant did is the
following passage from the record
of Detective Jeffery's interview with the
appellant -
"Q. What did you actually do to Renee?
A. I licked her.
Q.
Where did you lick her?
A. Down between her legs, her fanny.
Q. How many times did you do it?
A. A fair few times.
...
Q. Did you put your tongue inside her vagina?
A. No, just licked it on the outside."
The appellant's counsel
submitted to Prior J that this was not evidence of an
act of cunnilingus within the meaning of s.5 of the Criminal Law Consolidation
Act 1935 (as amended), because it lacked the element of penetration. The
learned Judge held otherwise. He followed an earlier decision
of this Court
in R. v. Corkin (No. 2) (1988) 50 SASR 285. The appellant thereupon changed
his plea and he was later sentenced to imprisonment. He now appeals against
his conviction on the
ground that the Judge erred in ruling that the charges
that the appellant faced did not require proof of penetration.
2. Section
49 of the Criminal Law Consolidation Act makes it an offence for
anyone to have sexual intercourse with a person under the age of
twelve
years. Sub-section (1) of s.5 provides -
"In this Act -
...
'sexual intercourse' includes any activity (whether
of a
heterosexual or homosexual nature) consisting of or involving -
(a) penetration of the vagina or anus of a person by
any part of
the body of another person or by any object;
(b) fellatio;
or
(c) cunnilingus."
There are similar
statutory provisions in other States but I have not been
able to find any reported case outside South Australia on the precise meaning
of cunnilingus.
3. In Corkin (No. 2) I gave a ruling in the course of a trial that the
stimulation of the female vulva, or external
genital area, with the tongue
amounted to an act of cunnilingus for the purpose of s.5. Proof of
penetration of the vagina was not
necessary. In reaching that conclusion I
took into account the s.5 definition of "sexual intercourse", the dictionary
meanings of
"cunnilingus" and the word's derivation. I thought it significant
that, if cunnilingus required vaginal penetration, it was already
included
within the general words of par.(a) of the definition and there was no point
in Parliament dealing expressly with cunnilingus
in par.(c). I refer to the
report of Corkin (No. 2) in order to save setting out my reasoning again here.
The question on this appeal
is whether that reasoning was sound.
4. Mr Halliday appeared for the appellant in this Court. His first
submission noted the reference
to "penetration of the vagina or anus" in
par.(a) of the definition and argued that it would be strange if sexual
intercourse by
way of cunnilingus did not require penetration when all other
forms of sexual intercourse in the pubic area, including "ordinary"
penile
intercourse, require penetration of the vagina itself. I think this
submission breaks down, in part, at its first step.
5.
Until 1976 there was no definition of "sexual intercourse" (or of "carnal
knowledge", as it used to be called) in the Criminal Law
Consolidation Act.
Such crimes as rape depended upon the common law's understanding of what
constituted sexual intercourse, supplemented
by the provision in s.73 that
made it plain that sexual intercourse was sufficiently established by proof of
penetration; there
was no need to prove emission. Cf. The Queen v. Salmon
(1969) SASR 76, The Queen v. Murphy (1988) 52 SASR 186. It has been a common
practice in this Court, so far as I am aware, for trial judges simply to tell
the jury in this respect in
a rape trial that the Crown must prove
penetration but that any degree of penetration will do. Usually no
explanation is given
of precisely what it is that must be penetrated - a
serious deficiency by reason of its ambiguity in some cases, particularly of
young victims, if penetration of the vaginal canal itself is required. Nor
are the authorities generally any more exact. See, for
example,
Papadimitropoulos v. The Queen [1957] HCA 74; (1957) 98 CLR 249; Salmon. In fact, it would
appear that, at least for the last 150 years, the common law, for obvious
practical reasons, has made
no attempt to distinguish for this purpose between
penetration of the vulva, as denoted by the labia majora, or outer lips, and
penetration
of the vagina itself. What little explicit authority on the point
may be found in the books supports the wider notion of sexual
intercourse. In
The Queen v. Lines (1844) 1 CarandK 393; [1844] EngR 333; 174 ER 861, Parke B. was trying a man
for carnal knowledge of a female child under 10. There was evidence that the
hymen of the child was not
ruptured and counsel for the prisoner submitted
that all the physical appearances were consistent with a failure to penetrate
the
vagina so that his client could not be convicted of the completed offence.
The learned Judge's ruling was - "I shall leave it to
the jury to say,
whether, at any time, any part of the virile member of the prisoner was within
the labia of the pudendum of the
prosecutrix; for if ever it was (no matter
how little), that will be sufficient to constitute a penetration, and the jury
ought to
convict the prisoner of the complete offence." Lines has always been
cited in text books and judgements dealing with the physical
requirements of
rape without, so far as I am aware, ever attracting adverse comment. See, by
way of a random sample, Russell on
Crimes (7th ed., 1909), vol. 1, 933;
Halsbury's Laws of England, 3rd ed. (1955), vol. 10, par. 1438; Archbold,
Pleading Evidence
and Practice in Criminal Cases (42nd ed., 1985),
par.20-343; Burke's Criminal Law - Victoria (current) par.1105; R. v. Preval
(1984) 3 NSWLR 647; The Queen v. Nathan (1988) 145 LSJS 236. I think it is
clear, then, that a charge of rape in this State, prior to 1975, was
sufficiently proved by showing that the penis
of the man penetrated the
woman's labia. There was no need to prove penetration of the vagina itself.
6. In 1976 a paragraph referring
to "sexual intercourse" was inserted in s.5
of the Criminal Law Consolidation Act for the first time. It did not attempt
to define
the expression but stated that "sexual intercourse" in the Act
included the introduction of the penis into the anus or mouth of
another
person. Then, in 1985, that paragraph was replaced by the definition that I
have set out earlier in these reasons. Again,
it did not purport to define
the expression exhaustively. It simply stated that certain activities were
included within the meaning
of sexual intercourse.
7. It is plain that the 1985 amendment to s.5 was intended to expand the
notion of sexual intercourse well
beyond its ordinary connotation. One of the
ways in which this was done was by declaring that any activity consisting of
or involving
penetration of "the vagina" of a person, by any part of the body
of another or by any object, should constitute sexual intercourse
for the
purpose of rape and other sexual offences under the Act. I think it very
unlikely that Parliament intended at the same time
to narrow the physical
elements of such offences, so far as penetration is concerned, by confining
them to cases in which the prosecution
is able to prove penetration of the
vagina, strictly so called, and not merely penetration of the labia. No good
reason comes to
mind for abrogating the view of sexual intercourse that was
expressed in Lines and implicitly followed in innumerable rape cases
thereafter, especially where the result would be to introduce a practical
evidential difficulty in a great number of cases coming
within par.(a) of the
s.5 definition that would obviously be better avoided.
8. There are two ways of reconciling the formula used
in par.(a) and the
common law notion of sexual intercourse - either by emphasizing the inclusive
character of the 1985 definition
and so treating par.(a) as merely
supplementary to the prior understanding of sexual intercourse for the purpose
of the sexual offences
in the Criminal Law Consolidation Act, or else by
giving a liberal or non-technical meaning to "vagina" in par.(a) so that it
embraces
the whole of the genital area within the labia. I think the latter
interpretation of the definition is reasonably open and is to
be preferred.
It would bring those activities that are especially proscribed under par.(a)
into line, so far as this aspect of the
matter is concerned, with the common
law conception of ordinary sexual intercourse - which is probably what
Parliament intended.
That would have the advantage of avoiding the practical
difficulties to which I have referred. It would also accord, I suspect,
with
the ordinary person's understanding of what is meant by vaginal penetration in
this context. I would hold, therefore, that
"penetration of the vagina", for
the purpose of par.(a), is sufficiently proved by a penetration of the labia.
9. What, then, of
par.(c)? If an act of cunnilingus can take place without
any labial penetration, as I held in Corkin (No.2), there remains a
disconformity
on that aspect of the matter between cunnilingus and, on the
other hand, rape and the other sexual offences referred to in par.(a).
Mr
Halliday submitted that this would be anomalous - there is no sensible ground
for distinguishing the tongue in this respect
from the penis or any other
animate or inanimate object, and Corkin (No. 2) should be overruled.
10. The argument that the two paragraphs
of the statutory definition of
"sexual intercourse" should be harmonized in this way is a plausible one but
it must yield, in my
opinion, to the clear implications of the definition when
read as a whole.
11. If cunnilingus requires proof of penetration, par.(c)
is unnecessary;
cunnilingus is already caught by the general words of par.(a). One does not
lightly interpret a statutory provision in a way that condemns it as
plainly
superfluous. Then there are the general and technical dictionary definitions
of "cunnilingus". I quoted a number of them
in Corkin (No.2). The
preponderance of them was against the appellant. (I may say that the 4th
edition of Blakiston's Gould Medical
Dictionary now has a definition of
cunnilingus itself: "the sexual practice in which the tongue and mouth are
used to lick or stimulate
the vulva".) No other dictionaries were cited in
this appeal, but the Supreme Court Library has supplied me with two more from
the
Medical School of the University of Adelaide - Taber's Cyclopedic Medical
Dictionary (U.S., 1985): "sexual activity in which the
mouth and tongue are
used to stimulate the female genitalia", and International Dictionary of
Medicine and Biology (U.S., 1986):
"licking or kissing the female genitalia,
usually the clitoris". The labia, including their outer aspects, are
physically a part
of the genitalia and we can infer from such cases as the
appellant's that the whole of the genitalia may appropriately be regarded
as a
single erogenous area. I think the dictionary definitions accurately express
the present-day meaning of cunnilingus, and I
see no reason to suppose that
any other meaning was intended in the 1985 amendment, although obviously no
mutuality of purpose or
willing co-operation by the victim is generally to be
expected and any sexual stimulation that is achieved or perhaps even sought
is
likely to be confined to the perpetrator. Cf. The Queen v. Remynse (1987) 135
LSJS 180. Parliament has thus included within the extended definition of
"sexual intercourse" in s.5 a term that describes a particular form
of sexual
activity, whether intended by the perpetrator to gratify the woman or the
perpetrator or both, and that is not directly
concerned with the act of
coition, homosexual or heterosexual, real or simulated, that underlies the
formula used in par.(a). On
that view of the matter, the circumstance that
penetration will be required in one case but not in the other is irrelevant.
12.
I would interpret the word "cunnilingus" more precisely now than I did in
Corkin (No. 2). In my opinion, it denotes the licking
or sucking of the
vagina or vulva, including the labia majora, with the tongue or mouth. No
distinction is to be drawn between
the outer and inner aspects of the labia.
13. As I observed in Corkin (No. 2), it may be that a similar question arises
under par.(b)
of the definition and with a similar result. The Macquarie
Dictionary defines "fellatio" as "oral stimulation of the male genitals,"
and
it might be argued, perhaps, that there is enough uncertainty about what
precisely that signifies, coupled with the word's derivation
from "fellare",
meaning "to suck", to confine fellatio under the Criminal Law Consolidation
Act to the penetration of another person's
mouth by the penis. Cf. Preval.
Obviously it includes such penetration, even if that is all that happens, but
it probably covers
other penile activity as well. It may extend to the
hostile, non-consensual sucking or licking of another person's penis. It is
noteworthy that the Oxford English Dictionary defines "fellatio" as "a sexual
act in which the partner's penis is sucked or licked".
Cf. Remynse. If
par.(b) is to be given a wide interpretation - and to the victim of
aggressive fellatio the distinction between
the different actions postulated
will probably seem unimportant - the paragraph provides another instance of
Parliament including
a purely erotogenic piece of conduct, quite distinct from
anything like ordinary sexual intercourse, by way of a statutory extension
of
that last expression. However, it is not necessary to express a view about
the proper limits of par.(b) in order to decide this
appeal.
14. In my opinion, the appellant's admissions to the detective provided
evidence of acts of cunnilingus on his part. The
learned Judge came to the
correct decision. I would dismiss the appeal.