I’m finding it hard to understand the sentencing in this case (leaving aside worries about whether we ought to be imprisoning people at all anyway).
Two men had sex with a 15 year old girl who was “severely intoxicated.” They have received suspended sentences, because “the sex was consensual.” Two other men are yet to stand trial in relation to “having unlawful sexual intercourse with the girl on the same night.” It’s not clear from the news story whether this means that the girl was raped by four men at once, or by two men at one time during the night, and then another two later on in the night. Whatever. The fact is, up to four men (two now convicted of unlawful sexual intercourse, two yet to stand trial) had sex with a drunken girl.
The age of consent (for most purposes) in South Australia is 17. This girl was 15. So whatever else was wrong in what the two men who have been convicted did that night, they were guilty of an offence that carries a potential jail term of up to 10 years (Criminal Law Consolidation Act 1935 – Sect 49).
But, get this. In the very same section of the Act, there’s this clause:
Consent to sexual intercourse is not a defence to a charge of an offence under this section.
So no matter what, the fact that the girl “consented” doesn’t change the nature of the offence.
Of course, the two men have actually been convicted of the offence, but nevertheless, the girl’s “consent” seems to have been used as a mitigating factor in sentencing.
It gets worse. Under the same act, in the section on rape, it turns out that:
a person is taken not to freely and voluntarily agree to sexual activity if … the activity occurs while the person is intoxicated (whether by alcohol or any other substance or combination of substances) to the point of being incapable of freely and voluntarily agreeing to the activity. (Criminal Law Consolidation Act 1935 – Sect 46)
Somehow, I just can’t get those two sections to gel, to make some sense of the sentences handed down. Surely the fact that the girl was “severely intoxicated” means that leaving aside any issues of underage sex, she couldn’t consent. Full stop. Period. End of story. Yet somehow, instead of making things worse, the fact that the girl was drunk and “consented” to sex, has made things better for the men who committed this crime. And why on earth were the men charged with “unlawful sexual intercourse” and not with rape in the first place. She didn’t consent, and that makes it rape.
I’m struggling to understand how these men got off so lightly for raping a drunk girl. My head keeps on going round and round in circles, trying to understand how two wrongs has added up to leniency in sentencing. Why can’t M’Lud see that the fact that the girl “consented” when she was severely intoxicated makes the offence even worse.