If consent to have sex was freely given, an agreement to exchange housing for sex is not a rape

Misconceptions about the legal definition of “rape” are common in Melbourne and elsewhere in Australia. One such misconception is illustrated in a recent headline in The Guardian:  “Homeless women in Melbourne raped and abused by men who offer shelter.”

When you read the news report, you will find that it focuses on men who take advantage of homeless women by offering them accommodation in exchange for sexual services. That behaviour is deplorable but it is not rape.

Lack of consent is a key element of rape

In Victoria, the rape of an adult is the intentional sexual penetration of another person without that person’s consent. The absence of consent is a crucial element of the offence. A rape occurs only if the offender was aware that no consent had been given or was indifferent to the question of consent.

While the Guardian story makes repeated references to rape, most of the examples that the story cites suggest consent was given. According to the news report:

• Men demand sex in exchange for accommodation. “Demanding” sex as a condition of providing accommodation is not the same as “forcing” sex regardless of consent.
• Homeless women “assume that they have to provide sexual favours” in exchange for accommodation. That assumption that may explain why they consent.
• Women feel “obligated to provide sex if they are seeking accommodation.” That sense of obligation may again account for their consent.
• Men “use accommodation … as a way to ask for sexual favours” (in other words, men ask homeless women to consent in exchange for accommodation).

To be sure, homeless women are particularly vulnerable to sexual assaults, and the story does refer to women who say they were assaulted and abused. But the story’s primary point, that seeking sex in exchange for a place to sleep constitutes rape, is just not true.

Coerced consent

The law in Victoria defines consent as a “free agreement.” There may therefore be situations in which a woman agrees to sex but has not consented to it because her agreement was not freely given.

• The law of Victoria defines several situations in which free agreement does not exist. They include:
• submission is compelled by the threat of force or fear of harm;
• submission results from an unlawful detention;
• the person is asleep or unconscious;
• the person is too intoxicated to be capable of making a free agreement;
• the person is deceived as to the sexual nature of the act or the identity of the person seeking consent.

In all of these examples, free will is overcome by threats, coercion, or deception, or by circumstances that prevent someone from making a conscious choice.

A homeless person who agrees to trade sex for a place to sleep is making a conscious choice. It may not be a pleasant choice, but it is a choice that the homeless person regards as preferable to sleeping rough. Provided that the person offering a bed does not threaten, detain, or deceive the person to whom the bed is offered, conditioning the offer on sex is not a rape.

It bears repeating that taking sexual advantage of a homeless person should not be condoned. At the same time, headline writers should not level serious charges of rape to describe bad behaviour that falls short of a sexual assault. A man who is accused of rape because he had sex with a homeless woman who freely agreed to that arrangement should seek legal assistance to challenge the unjust accusation.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.