Rape in Medical Treatment: The Patient as Victim
![handle is hein.journals/mulr18 and id is 431 raw text is: RAPE IN MEDICAL TREATMENT: THE PATIENT
AS VICTIM
BY JENNY MORGAN*
[This article analyses the Victorian Court of Criminal Appeal's decision in Mobilio. In that case,
the court decided that a health worker who, it assumed, was acting purely for a sexual purpose when
he inserted an instrument into a woman's vagina, had not committed rape. In its view, the consent of
a woman to what she assumed was legitimate medical treatment was consent to an act done for a
different purpose. Although the Victorian government subsequently passed legislation to respond to
the decision, the case is still of interest for what it reveals of judicial attitudes. 1]
In February 1990 a Victorian Supreme Court jury convicted Vincenzo Mobilio of
three counts of rape. Mobilio was a radiographer who had undertaken internal
examinations of eight women using the transducer of an ultrasound machine. He
was acquitted on five similar charges of rape. In July 1990 the Victorian Court of
Criminal Appeal overturned the convictions.2 In December 1990, the High Court
refused the D.P.P. special leave to appeal. Why are these decisions of interest?
Mobilio was the first reported case of a prosecution under the expanded
definition of rape.3 Prior to 1980, under the common law in Victoria, rape was
committed when a man knowingly or recklessly inserted his penis into a
woman's vagina, without her consent. After 1980, the Victorian Crimes Act
provided that, in circumstances where the introduction of a man's penis into a
woman's vagina4 would be rape, so is the introduction of a penis into another's
anus or mouth or the manipulation of an object into the vagina or anus of another.
* B.A. (Hons) (Syd.), LL.B. (U.N.S.W.), LL.M. (Yale). Senior Lecturer in Law, Melbourne
University. Many woman have helped me explore a variety of hypothetical medical treatment
situations as I developed my thinking for this article - in this context I particularly thank Hilary
Charlesworth and Anna Funder; Anna Funder was also exposed to many of my faltering ideas and I
thank her for her patience and support. Thanks also to Sarah Rey who wrote a paper on this topic for
my Feminist Legal Theory course in 1989. I also thank my usual critics and supporters for once again
reading drafts, Reg Graycar and Peter Hanks. Finally, thanks to the referee for her insightful
suggestions. Errors, of course, remain mine.
I The article was completed before the Victorian government passed the Crimes (Rape) Act 1991
which abolished the common law offence of rape. It also abolished the distinction between crimes of
rape and crimes of sexual penetration, discussed towards the end of this article. The actus reus of
rape is now defined as 'sexual penetration' with consent. Sexual penetration is defined as, amongst
other things, 'the introduction ... by a person of an object ... into the vagina or anus of another
person, other than in the course of a procedure carried out in good faith for medical or hygienic
purposes.' The 'Mobilio amendment' now appears in s. 36, defining consent as free agreement, and
one of the circumstances in which a person does not freely agree is where 'the person mistakenly
believes that the act is for medical or hygienic purposes' (para. (g)). Para. (f) may also be of relevance:
'the person is mistaken about the sexual nature of the act.' These amendments are not incorporated
into the article. The article does, however, discuss amendments made by the Crimes (Sexual
Offences) Act 1991 (Vic.).
2 R. v. Mobilio [1991] 1 V.R. 339.
3 Rape was formerly defined by Crimes Act 1958 (Vic.) s. 2A(l). The Crimes (Sexual Offences)
Act 1991 (Vic.) has expanded the activities covered: see Crimes Act 1958 (Vic.) s. 36.
4 In fact the legislation refers to 'the penis of a person' and 'the vagina of another person':
gender-neutrality with a vengeance? See MacKinnon, C. A., Feminism Unmodified (1987) 72 where
she refers to women meeting the male standard being served 'equality with a vengeance'. However,
under s. 39 of the Crimes (Sexual Offences) Act 1991 a vagina includes a surgically constructed vagina.](ViewImageLocal?handle=hein.journals/mulr18&div=35&collection=&method=preview&ext=.png&size=3)
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Rape in Medical Treatment: The Patient as Victim
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