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Rape Ruling On Drunken Consent

THE nation's highest court made it clear yesterday that men must get unambiguous consent to sex or face the risk of a rape conviction and possible 14-year jail term.
Even if a man reasonably believes it is likely a drunk or half-awake woman is consenting to sex, he should still make sure, otherwise he will be considered "reckless" and therefore guilty of rape in NSW and South Australia.
The findings were made yesterday when the High Court dismissed an appeal by Stephen Garry Banditt against his rape conviction on the legal definition of "reckless" in deciding on the issue of consent.
Banditt, then aged 27, was sentenced to five years' jail in 2003 for the rape of a 25-year-old woman on October 6, 2001, at Bellingen in northern NSW.
The pair had been drinking at the same hotel earlier in the evening. The woman had consumed seven beers, a marijuana joint and a "painkiller". According to Banditt, she was "vaguely awake" at the time of the assault.
Stephen Odgers SC, representing Banditt, argued that courts in NSW and South Australia had held that the man was reckless if he was aware of the possibility the woman's apparent consent was not real consent, and thus had not made certain she was really agreeing to sex.
The critical argument concerns the legal definition of recklessness in a rape case.
Mr Odgers had told the four High Court judges of the hypothetical scenario of a couple who go on a date on a Saturday night.
The woman at first tells the man she does not want to have sex, but after a few drinks she consents in no uncertain terms. The man is aware it is possible the woman's consent is alcohol-related. Is he guilty of rape if he does not wait for her to sober up before they have sex?
Yesterday's decision confirms that, in NSW and South Australia, a man who takes the risk and has sex will be guilty of rape if the jury is satisfied the woman did not really consent. Even if the jury thinks it was reasonable for the man in the heat of the moment not to make sure the woman's consent was genuine, the judge must direct them to convict him.
Mr Odgers argued that this direction, given in the original District Court trial of Banditt, was incorrect.
The High Court judges yesterday unanimously dismissed the appeal, holding that judge David Freeman's direction to the jury did not misstate the concept of recklessness. Judge Freeman had told the jury that if an offender were aware there was a possibility a woman was not consenting, but proceeded anyway, it amounted to recklessness.
Justice Ian Callinan said that the definition of recklessness, the key question of the appeal, should be determined by the jury. "(Whether) one has been reckless as to the willingness of the other strikes me as quintessentially a jury question, the answer to which a dozen or a thousand words of elaboration (by lawyers) can add nothing, except perhaps uncertainty," he said. "'Reckless' means reckless, just as 'beyond reasonable doubt' means exactly that." The ruling does not apply to other states and territories, because they have different definitions of recklessness in relation to consent. Most impose objective tests of the mental element of rape, so that an honest belief of consent must be reasonably held to negate criminal responsibility.

http://www.thecouriermail.news.com.au (16-12-2005)
Vanda Carson

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