Rape By Fraud – The Supreme Court of ACT Decides

*TRIGGER WARNING: THIS POST DISCUSSES RAPE, SEXUAL ASSAULT AND VIOLENCE*

* THIS POST DOES NOT CONTAIN LEGAL ADVICE. FOR LEGAL ADVICE WITH RESPECT TO CRIME, PLEASE CONTACT THE WRITER OR A LEGAL PROFESSIONAL*

“Man Jailed For Raping Prostitute By Pretending To Pay With Envelope Stuffed With Paper”

Yesterday, a Canberra man by the name of Akis Livas, aged 52, was found guilty of rape for having pretended to pay a sex worker with an envelope stuffed with paper. He was sentenced to eight months jail with a two year good behaviour bond.

In the article released by ABC* yesterday stated that “Akis Livas, 52, appeared to be in disbelief when his lawyer explained to him that he would be locked up for the crime.”

The facts are as follows, according to the Canberra Times** – The court was told he first had sex with the woman in October 2010 but didn’t have enough money to pay the full fee. Livas vowed to pay the $50 he still owed her on their next encounter, which he booked later that month for $800. He handed over a sealed envelope and stopped the woman from opening it to check the money was inside, saying: “No, no, no don’t open it now, it’s – you have to trust me on this – it’s part of my fantasy that it’s all about the romance and I need you to trust me.” The pair had sex but the woman grew increasingly suspicious and later opened the envelope to find there was no money inside. Instead, she found a paper bag that had been folded to make it feel like a wad of cash, and a white card with a printed red rose on it. Livas left the premises and the woman later reported the incident to police.

Justice Penfold of the ACT Supreme Court held that the event was “clearly premeditated” and that it constituted “rape by fraud”. Justice Penfold felt that a prison sentence was necessary as the offender did not show remorse and “was still focused on the event as a commercial exercise.”

Rape is Rape

Yesterday, I caught wind of a Twitter discussion where the following comment was made, or at least summarised as follows:

“There was no violence so it wasn’t “actual rape”.

Firstly, in the Crimes Act 1900 (NSW), there is no requirement for violence to exist when a rape occurs. Section 61I of the Crimes Act 1900 (NSW) simply states: “Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.”

There is no requirement that there needs to be “violence”. There is no such thing as “actual rape” or “kinda rape” or “not really rape”. Rape is rape. If a person has sexual intercourse with another person WITHOUT the consent of the other person, then it is rape (or sexual assault). To think that there are levels of “rape” is a entire misconception. Rape is rape. Rape is sexual intercourse without the essential element of consent. It doesn’t need to be violent. There doesn’t need to be a struggle. There does not need to be evidence that a woman or man has been physically assaulted in the process. We need to stop thinking that rape has to have occurred under some form of perceived “duress” at the time of intercourse. It comes down to the very important element of CONSENT.

An article was written way back in 1995 by G Syrota in the Western Australian Law Review, entitled “Rape: When Does Fraud Vitiate Consent?”. The article can be found here*** The article states that while English authorities (as at 1995) are of the view that fraud does not vitiate consent, Western Australian authorities would differ. And now, with the judgement that was handed down by Justice Penfold, this reaffirms the position that Australian authorities are satisfied that fraud DOES vitiate consent.

The Bigger Picture – “Sex Workers Ask For It”

There is a huge misconception that if you are a sex worker, then rape does not occur.

“If you have sex for money, then really, when someone doesn’t pay you, then that is too bad.”

Wrong. A sex worker is just as capable of determining her/his consent as every other individual that has sexual intercourse “for free”. A sex worker can withdraw consent at any time, just like every other individual that has sexual intercourse “for free”. A sex worker can be deceived into having sexual intercourse just as much as a individual that has sexual intercourse “for free”. The comment made by Justice Penfold in yesterday’s judgement that the offender was still of the view that it was a commercial transaction, and her disdain for that position is entirely on point. Irrespective of there being a “commercial transaction” in place, a woman’s right to her her own body still remains and she is still entirely within her/his rights to make a decision whether sexual intercourse occurs is still hers/his.

So, I praise Justice Penfold for her decision yesterday. It was a win for the sex industry, it was a win for a man/woman’s right to their body, and thankfully, we now have a man who thought he could deceive a woman into sexual intercourse behind bars.

Other Issues To Address

1. Hey media, can we please stop using the word “prostitute”? Yes, it matters. A lot. We now use the word “sex worker” for a number of reasons. It is now widely accepted that “prostitute” is a derogatory word. I would like it if we could begin to use to phrase “sex worker”. Its not about semantics (as one Twitter person argued yesterday). It is of importance.

2. This sex worker who commenced these proceedings was very brave. Not only did she have to open herself up to scrutiny of being a sex worker, she had to commence proceedings in her own real name, exposing her being “outed” (she may have already been “outed” hence when commencing proceedings may have been easier for her to do). However, she should be congratulated for having the strength to put this issue before the justice system. We are not seeing sex workers have the same faith in the justice system. This sex worker’s life is now irrevocably changed, as evidenced in her Victims Impact Statement.

3, The sentence. 8 months jail. Two years good behaviour bond. Sentencing is a very complicated process but it is one issue which always comes under fire by the public about whether it was appropriate or not. I tend not to involve myself in sentencing discussions because I respect the justice system to be able to make sentencing decisions with the information they have. We don’t know what the sentencing submissions were, we don’t know the factors that Justice Penfold needed to take into consideration when sentencing, so I am going to refrain from making comment about the appropriateness of the sentence that was handed down.

Happy to discuss over Twitter at @kateonthego or @kvalegal.

KVA

* http://www.abc.net.au/news/2015-02-06/man-jailed-for-rape-after-tricking-prostitute-into-sex/6075496

** http://www.canberratimes.com.au/act-news/prostitute-felt-violated-after-man-tricked-her-for-free-sex-20150206-137q6z.html

*** http://www.austlii.edu.au/au/journals/UWALawRw/1995/27.html

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3 thoughts on “Rape By Fraud – The Supreme Court of ACT Decides

  1. Peter A says:

    I disagree rape is by force or threat of force or someone being physically incapacitated (drugged with date rape drug) or someone under the age of consent. They can try to twist the defintion of the law all they want but this is not rape and it is an insult to real rape victims. This woman was at the most a victim of theft and fraud. She felt so scorned and I am sure she would have liked to have put this man in prison for life for swindling her out of $850. The sentence of 8 months should have been for theft and fraud not rape. So if a man promises to take you shopping the next day and you have sex with him and he doesn’t take you shopping I guess you consider that rape too. I will say that even though I consider this wrong in this man being convicted of rape tricksters and fraudsters beware that a woman’s scorn is something to be reckoned with and if you try to trick a prostitute into having sex or taking back the money a lot of them will say you raped them and some might even lie and say you forcibly raped them. It would have been a good thing for the sex industry if he was convicted of fraud and theft NOT RAPE. You will have sick bastards who won’t even bother to try to fill envelopes with play money or tissue they will just beat and forcibly rape sex workers because they will feel it is a rape charge whether force is used or fraud is used.

    Like

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