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Rape in South Australia

Updated on Jan 11, 2023 4 min read 331 views Copy Link

Fernanda Dahlstrom

Published in Jan 11, 2023 Updated on Jan 11, 2023 4 min read 331 views

Rape in South Australia

In South Australia, the Criminal Law Consolidation Act 1935 contains a range of sexual offences. These include rape, unlawful sexual intercourse and indecent assault. This page deals with the laws surrounding rape in South Australia, including penalties, defences and court procedures.

The offence of rape in South Australia

Under section 48 of the Criminal Law Consolidation Act 1935, rape is an offence punishable by a maximum penalty of life imprisonment. A person commits rape if they have sexual intercourse with another person who does not consent to sex or has withdrawn their consent.

A person can also be found guilty of rape in South Australia if they coerce another person to have sex with a third person, with an animal, or with themselves.

What is sexual intercourse?

Section 5 of the Criminal Law Consolidation Act 1935 defines sexual intercourse as any activity involving:

  • The penetration of a person’s vagina, labia majora or anus by the body part of another person or by an object;
  • Fellatio;
  • Cunnilingus.

What is consent?

Under section 46 of the Criminal Law Consolidation Act 1935, a person  consents to sex if they freely and voluntarily agree.

A person does not consent if they agree because of force of the threat of force or because of a threat to degrade, humiliate, disgrace or harass the person or another person.

A person does not consent if they are:

  • unlawfully detained;
  • asleep or unconscious;
  • intoxicated to the point of being unable to freely agree;
  • so mentally impaired that they are incapable of freely agreeing;
  • unable to understand the nature of the activity;
  • mistaken about the identity of the person;
  • mistaken about the nature of the activity.

If you have been charged with rape or another criminal offence in South Australia, seek legal advice immediately.

Go To Court Lawyers will provide you with advice as to:

  • the criminal process
  • the likely penalty range if you are found guilty
  • any available defence
  • the strength of the case against you
  • your bail prospects

Defences to rape in SA

A person who is charged with a criminal offence may rely on a legal or factual defence.

The defence of consent

The only legal defence to rape in South Australia is that the alleged victim consented to sex with the accused.

Factual defences

A person charged with a criminal offence may also rely on a factual defence. Factual defences include:

  • that the alleged offence never happened;
  • that the accused was not the person who committed the alleged offence.

Jurisdiction

Rape in South Australia is a strictly indictable offence and is dealt with in the District Court.

All criminal matters begin in the Magistrates Court and a number of procedural steps must be gone through before a matter is committed to the District Court. This includes a committal proceeding, where a magistrate will review the prosecution evidence and assess whether it is sufficient for the matter to be committed to a higher court.

If there is enough evidence that the accused could be found guilty by a jury, the matter will be committed to the District Court. If there is not enough evidence to support a conviction, it will be dismissed.

Applying for bail in South Australia

If you have been charged with a criminal offence in South Australia and remanded in custody, Go To Court Lawyers can help you to apply for bail. Decisions about the grant of bail in South Australia are made under the Bail Act 1985.

 When a person applies for bail, the court will consider:

  • the seriousness of the offence
  • the likelihood they will commit an offence if released
  • the likelihood they will abscond or interfere with evidence
  • their medical needs
  • any previous breaches of bail by the person

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Published in

Jan 11, 2023

Fernanda Dahlstrom

Content Editor

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
Fernanda Dahlstrom

Fernanda Dahlstrom

Content Editor

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.

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