We think two people who don’t speak the same language need to show more care and attention, not less, when they engage in sexual activity with each other. The current laws put you at a significant disadvantage if you don’t speak the same language as the person who is initiating intercourse. Defence counsel are able to paint pictures of “grey areas” and “miscommunications” that might otherwise not seem realistic or likely, and this means women who speak a different language are expected to physically fight back more than others. How is that fair?
In many cases there is also a clear power imbalance between the complainant and defendant which is exacerbated by the language difference.
R v Lennox
The complainant was from Hong Kong and had been living in Australia for just over a year while working as a nanny. The defendant offered her a lift while she was waiting for a bus. On their second date, the defendant drove them to a public park and stopped the car. He tried to kiss the complainant, but she pulled back and said she didn’t want to. The defendant then proceeded to touch and suck her breasts, then put his finger and penis in her vagina, while she continued to say “I don’t want to do that. I kept saying I don’t want, and I keep holding his body or his wrist to try to stop him to touch me.” After the defendant withdrew his penis from the complainant’s vagina, he asked her to masturbate him, which she did briefly because she didn’t want him to rape her again.
The defendant was charged with five counts of rape and sexual assault. The jury acquitted him of three counts and were unable to agree on a fourth, but convicted him of one count of rape based on penile penetration. He appealed his conviction, arguing that the jury’s verdicts were inconsistent. The majority of the Court of Appeal agreed and the conviction was overturned. The majority judges thought that the jury must have doubted the complainant’s evidence that she consistently said “no” throughout the encounter; that being so, they could not reasonably have accepted her evidence that she said “no” to the penile penetration. This left it open for the defendant to rely on the ‘mistake of fact’ defence. Philippides JA, in the minority, would have upheld the conviction; she found that the acquittals could be explained by the fact that complainant’s refusal was less emphatic and consistent in relation to the other incidents than for the penile penetration.
The case illustrates the confusion juries often experience when applying the ‘mistake of fact’ defence. It shows how a supposed lack of ‘emphatic’ resistance by the complainant can lead to acquittals based on ‘mistake of fact’, even where it is otherwise clear that the complainant was not consenting. It also shows how linguistic and cultural differences can work to the complainant’s disadvantage, creating doubt as to whether she expressed her lack of consent clearly enough.
The full judgement of R v Lennox is available here.
R v Mrzljak
The defendant had a particularly low IQ and was Bosnian, speaking only a few words of English. The complainant was intellectually impaired. The complainant’s evidence was that she did not want to have sex with the defendant. She told him to “stop”, said “no”, then tried to push him away. However, she also complied with his instructions to take off her clothes and touch his penis. The Court of Appeal held by a 2:1 majority that the defendant’s intellectual and linguistic incapacity could support a defence of ‘mistake of fact’. This meant, in particular, that a mistake made by the defendant could be considered reasonable even though it would not be reasonable when made by a person with different intellectual and linguistic abilities. The result is that it despite the complainant’s clear and repeated verbal and physical resistance, the defendant’s mental state and linguistic ability meant the ‘mistake of fact’ defence was applicable.
The Court of Appeal defined the “reasonable” belief of the defendant being a “reasonable person” who had the cognitive and linguistic abilities of the defendant, not a “reasonable person” in the broader, more average sense. This conflation of the subject and objective tests for ‘mistake of fact’ is particularly important to note, as typically the defendant’s individual state of mind would only support the honesty of the mistaken belief, not the reasonableness of it. The defendant’s linguistic abilities, like his mental capacities, therefore seem to be a matter than potentially impacts on not only the subjective honesty of any mistaken belief, but also its objective reasonableness. In such situations, the onus on the complainant to communicate her lack of consent may be extremely high. This may be a difficult burden for the complainant to discharge in practice, particularly in cases where linguistic issues are reinforced by other forms of impairment.
The full judgment of R v Mrzljak is available here.
R v Kovacs
The complainant was a Philippine national who travelled to Weipa to work in a takeaway shop run by the defendant and his wife. The complainant was in Australia illegally. She knew little English, had no independent means of support, and was living with the complainant and his wife. Her evidence was that as soon as she arrived in the country, the man began to sexually assault her, and this continued over several months. He sometimes gave her money afterwards, which she accepted due to her vulnerable position and dependence on him for her livelihood. The defendant was convicted of rape, but this was overturned by the Court of Appeal who said that the jury could have acquitted him for ‘mistake of fact’ because he was paying her and he might have thought she was consenting because she accepted the money.
The majority of judges in the Court of Appeal decision concluded that the language barrier was not a relevant issue at trial (as distinct from the case of R v Mrzljak) because there was clearly some amount of communication between the complainant and defendant in English, and because defence counsel did not explicitly raise language differences as part of their case.
This finding is questionable, however, given that the defence argument was that the defendant had an honest and reasonable belief that the complainant was consenting because he would sometimes give her a small amount of money after intercourse. It is difficult to imagine how the defendant could have reasonably sustained such a belief had the complainant been able to speak fluent English. The defence’s decision not to highlight the language barrier does not necessarily mean the jury did not consider it a part of the context for the defendant’s claimed ‘mistake of fact’. The language differences also compounded the complainant’s complete reliance on the defendant and so exacerbated the disparity in power and agency in their interactions.