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Ignorance of the law as a defence to rape : the destruction of a maxim

Arenson, Kenneth J. 2012, Ignorance of the law as a defence to rape : the destruction of a maxim, Journal of criminal law, vol. 76, no. 4, pp. 336-347.

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Title Ignorance of the law as a defence to rape : the destruction of a maxim
Author(s) Arenson, Kenneth J.
Journal name Journal of criminal law
Volume number 76
Issue number 4
Start page 336
End page 347
Total pages 12
Publisher Vathek Publishing
Place of publication Isle of Man, England
Publication date 2012-08
ISSN 0022-0183
1740-5580
Keyword(s) rape
defence of consent
honest and reasonable belief in consent
ignorance of the law
Summary In DPP v Morgan, the House of Lords correctly concluded that an accused who entertained a genuine belief that a woman was consenting to carnal knowledge of her person could not be convicted of the common law crime of rape as such a belief and the requisite mens rea to convict were mutually exclusive of one another. Though England and Wales have resiled from this position by virtue of the Sexual Offences Act 2003, s. 1 (b), which allows for conviction upon proof that the accused did not reasonably believe that the complainant was consenting, the Morgan principle has retained its vitality at common law as well as under the various statutory crimes of rape that exist throughout Australia, most notably the provisions of s. 38 of the Crimes Act 1958 (Vic). Despite a long line of Victorian Court of Appeal decisions which have reaffirmed the Morgan principle, the court has construed s. 37AA(b)(ii) of the Act as leaving open the possibility of an acquittal despite the fact that the accused acted with an awareness that one or more factors that are statutorily deemed as negating consent under s. 36(a)-(g) of the Act were operating at the time of his or her sexual penetration; specifically, the court held that the foregoing factors do not necessarily preclude a jury from finding that the accused acted in the genuine belief that the complainant was consenting. This article endeavours to explain how the accused could be aware of such circumstances at the time of penetration, yet still entertain such a belief. The article ultimately concludes that such an anomaly can only be explained through a combination of the poor drafting of s. 37AA(b)(ii) and the court's apparent refusal to follow the longstanding precept that ignorance of the law is never a defence to a crime, ostensibly prompted by its adherence to the cardinal precept that legislation is not to be construed as superfluous.
Notes Reproduced with the kind permission of the copyright owner.
Language eng
Field of Research 180108 Constitutional Law
Socio Economic Objective 940499 Justice and the Law not elsewhere classified
HERDC Research category C1 Refereed article in a scholarly journal
Copyright notice ©2012, Vathek Publishing
Free to Read? Yes
Persistent URL http://hdl.handle.net/10536/DRO/DU:30050015

Document type: Journal Article
Collections: Faculty of Business and Law
Law
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Every reasonable effort has been made to ensure that permission has been obtained for items included in DRO. If you believe that your rights have been infringed by this repository, please contact drosupport@deakin.edu.au.