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Sexual Offences: The offence of Rape in Victoria.

The offence of Rape is one of the most serious sexual offences prosecuted under the Crimes Act 1958 (Vic). In this article, we explain the elements, defences and penalties of the offence of Rape.


What the prosecution must prove


A successful prosecution for an allegation of rape pursuant to section 38 of the Crimes Act 1958 (Vic) requires that the following four (4) elements are proven beyond reasonable doubt:


  1. The accused sexually penetrated the complainant in the way alleged;

  2. The accused intentionally sexually penetrated the complainant in the way alleged;

  3. The complainant did not consent to the sexual penetration by the accused

  4. The accused did not reasonably believe that the complainant had consented to the act of sexual penetration.


Some key terms explained:


'sexual penetration


Sexual penetration is defined as per section 35A of the Crimes Act 1958 (Vic). Without reciting what is a lengthy definition you can refer to the detail here.


The case of R v Anderson [2010] established the proposition that it is not sufficient for the relevant body part to be touched, there must have been penetration to some extent.


The extent of penetration need only be slight or fleeting (Randall v R (1991) A Crim R 380; Anderson v. R [2010] VSCA 108.


'intentional sexual penetration'


The prosecution must prove that the accused's actions were voluntary and intentional. The essence of intention was described in the case of R v Turnbull (1943) 44 SR 108 at 109 in this way:


"It is also necessary at common law for the prosecution to prove that [the accused] knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged'


Other aspects of mens rea (state of mind of an accused) are picked up below in the discussion on whether an accused had a reasonable belief in consent.


'Consent'


Consent defined under section 36 means free agreement, and an expansive definition is set out under the section:


Circumstances in which a person does not consent to an act include, but are not limited to, the following—


(a) the person submits to the act because of force or the fear of force, whether to that person or someone else;

(b) the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;

(c) the person submits to the act because the person is unlawfully detained;

(d) the person is asleep or unconscious;

(e) the person is so affected by alcohol or another drug as to be incapable of consenting to the act;

(f) the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;


'Reasonable belief in consent


Section 36A of the Crimes Act 1958 (Vic) provides that:


1) Whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances.

(2) Without limiting subsection (1), the circumstances include any steps that the person has taken to find out whether the other person consents.


What is the penalty for Rape?


Rape is a strictly indictable offence, and the maximum penalty provided under section 38(2) of the Crimes Act 1958 (Vic) is 25 years imprisonment.


Defences to Rape


As noted above the prosecution must establish each and every offence. Accordingly the defences that might be available include:


  • factual dispute as to whether sexual penetration occurred;

  • a defence that the actions of the accused were not intentional in the sense that they were not voluntary (sexsomnia, a form of automatism)

  • a defence pertaining to whether the sexual penetration was consensual


Sentencing outcomes for Rape


Rape is an offence that can only be finalised in the County or Supreme Court having regard to the maximum penalty of 25 years.


A finding of guilty (whether by a plea of guilty or guilty verdict following trial) will inevitably lead to a term of imprisonment and the offence falls into a category of offending for which standard sentences apply under the Sentencing Act 1991 (Vic) and a statutory requirement for a sentencing Court to impose a custodial sentence (section 5(2G) of the Sentencing Act 1991 (Vic)).


Under the Sentencing Act, the standard sentence is 10 years imprisonment. This represents the middle point or median sentence for rape. A sentencing judge is free to go above or below the standard sentence in their discretion however the clear legislative intent is that an immediate custodial sentence will apply.


More law reform is on the way


There has been much undertaken to reform the law relating to sexual offences over the years, particularly rape. More reform is to come in how the issue of consent is to be determined for rape allegations, it is foreshadowed that a requirement that an accused establish affirmative consent, that is the onus will shift to an accused to establish that he/she took affirmative steps to ensure consent was in fact given.


Early advice and preparation critical


It is critical to get advice as early as possible to successfully defend an allegation of rape. Should you be facing an allegation of rape or any other sexual offence call our office for an urgent consultation. We can be contacted by phone on (03) 9668 7600 or by email.







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