Reckless Rape in Victoria

Abstract

In this article, I distinguish three types of recklessness – ‘inadvertence recklessness’, ‘indifference recklessness’ and ‘possibility recklessness’ – and examine whether each of these is, and should be, sufficient to satisfy the fault element for rape. I suggest that these three states of mind are not always properly distinguished. For example, while inadvertence recklessness is now sufficient to satisfy the fault element in Victoria, it is unclear whether indifference recklessness is sufficient, precisely because the Victorian Parliament did not carefully distinguish between these two states of mind. However, I argue, both indifference recklessness and inadvertence recklessness should be sufficient to satisfy the fault element for rape. By contrast, I contend that possibility recklessness is much more problematic than is generally realised, before suggesting a way in which the problems I identify could be alleviated.

Keywords: recklessness, rape, consent, possibility recklessness, indifference recklessness, inadvertence recklessness

JEL Classification: K1, K14, K4, K42, K49