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6 Current Issues Crim. Just. 303 (1994-1995)
The Precarious Position of the Transsexual Rape Victim

handle is hein.journals/cicj6 and id is 307 raw text is: The Precarious Position of the Transsexual Rape Victim The offence of common law rape is gender specific. Where the victim is a male to female transsexual, this constituent element of the offence is likely to assume prime importance in any trial. That is to say, acquittal or conviction is likely to rest largely upon a determi- nation as to the victim's sexual identity. During the last decade the law of rape has undergone substantial change in Australia. In New South Wales and Western Australia it has been repealed' and replaced with the more encompassing offence of sexual assault2 or sexual penetration.3 These new of- fences have served to treat more seriously, violent sexual behaviour lacking the orifice/ob- ject specificity of common law rape. In Victoria, South Australia and Tasmania the term rape has been retained but its definition has been extended to produce substantially the same effect.4 These changes are to be welcomed. They treat seriously a variety of sexually violent behaviour including non-consensual fellatio and anal penetration of every kind. However, like common law rape the new more flexible constructs, with the exception of Victoria,5 fail to close an important loophole with respect to transsexuals. Where the facts which constitute the offence describe a common law rape scenario, and where the victim is a male to female transsexual the prospect of conviction is immediately problematised. By way of example consider section 611 of the Crimes Act 1900 (NSW). It defines sexual assault as sexual intercourse without consent. Section 61H(i) defines sexual intercourse to mean amongst other things: (a) sexual connection occasioned by the penetration to any extent of the genitalia of a female person ... by: (i) any part of the body of another person; or (ii) any object manipulated by another person. Where the victim is a male to female transsexual however, conviction presupposes the successful negation of assertions that the victim is not a female person and/or that she does not have female genitalia. In Western Australia, depending upon the fact situation, this problem might be overcome as that state's legislation defines sexual penetration to include the penetration of the urethra of any person.6 The difficulty could be solved by an amendment along Victorian lines defining vagina (or the genitalia of a female per- son) to include a surgically constructed vagina.7 Alternatively, legislation might be in- I Crimes (Sexual Assault) Amendment Act 1981 (NSW); Acts Amendment (Sexual Offences) Act 1992 (WA). 2 Section 611, Crimes Act 1900 (NSW). 3 Section 325, Criminal Code Act 1913 (WA). 4 Section 38, Crimes Act 1958 (Vic); s48 Criminal Law Consolidation Act 1935 (SA); s185 Criminal Code Act 1924 (Tas). 5 Section 39 of the Crimes Act 1958 (Vic) defines vagina to include a surgically constructed vagina. This definition was added by s3 of the Crimes (Sexual Offences) Act 1991. 6 Section 319, Criminal Code Act (WA). 7 Section 39, Crimes Act 1958 (Vic).

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