Rape in Tasmania

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In Tasmania, the most serious sexual offence that can be committed against an adult is rape. Rape is set out in section 185 of the Criminal Code Act 1924. This page deals with the offence of rape in Tasmania.

The offence of rape in Tasmania

Rape in Tasmania occurs when a person has sexual intercourse with another person without consent. It carries a maximum penalty of 21 years imprisonment.

What is sexual intercourse?

Section 2B of the Criminal Code Act 1924 defines sexual intercourse as:

• Penetration of the vagina, genitalia, anus or mouth by a penis;
• Penetration of the vagina, genitalia, anus or mouth by another body part;
• Penetration of the vagina, genitalia, anus or mouth by an object.

What is consent?

Section 2A of the Criminal Code Act 1924 defines consent as free agreement. A person does not consent if:

• They do not say or do anything to indicate consent
• They submit because of force or fear of force
• They submit because of a threat
• They submit because they have been unlawfully detained
• They submit because they are overborne by the nature or position of the person
• They submit because of fraud
• They are reasonably mistaken about the nature or purpose of the act or the identity of the person
• They are asleep unconscious or drug affected
• They are unable to understand the nature of the act.

A person does not consent if they consent to having sex with a person using a condom and the person does not use, tampers with, or removes the condom.

Jurisdiction

Rape is a strictly indictable offence and is finalised in the Tasmanian Supreme Court. However, all criminal matters start in the Magistrates Court and a rape matter will go through a number of procedural stages in front of a magistrate before being transferred to the Supreme Court for finalisation.

Penalty for rape in Tasmania

The maximum penalty for most indictable offences in Tasmania is 21 years imprisonment. This is a standard penalty that applies to serious offences in Tasmania except where the legislation specifies a different maximum penalty.

In practice, the majority of accused persons who are found guilty of an indictable offence receive a lesser penalty than 21 years. However, a person sentenced for rape will generally be sentenced to a custodial term and at least part of that term will have to be served in actual jail.

Aggravating circumstances

Under section 11A of the Sentencing Act 1997, when the court is sentencing a person for rape or another sexual offence in Tasmania the following are aggravating factors:

• The victim was under the care, supervision or authority of the offender
• The victim has a disability
• The victim is under 13
• The offence was committed in the presence of one or more other people
• The offender used or threatened violence
• The offender gave the victim drugs or alcohol in order to carry out the offence
• The offender entered the victims’ home uninvited
• The offender did an act likely to degrade or humiliate the victim in the court of committing the offence

If any of these factors apply, the court must take them into account when sentencing the offender.

When a court is sentencing a person for offences, it may usually take into account their prior good character as a mitigating factor at sentencing. However, when sentencing a person for rape or another sexual offence, the court must not take into account the person’s good character if it assisted them in committing the offence.

Defences to rape in Tasmania

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

The defence of consent

The only legal defence to a charge of rape is that the alleged victim consented to sex.

Factual defences

A person charged with an offence may also rely on a factual defence.

Factual defences include:

• That the alleged offence did not occur at all
• That the accused is not the person who committed the offence

Seek legal advice about rape in Tasmania

If you have been charged with rape in Tasmania, you should seek legal advice immediately. Go To Court Lawyers will provide you with professional and timely advice as to:

• The strength of the case against you
• The likely penalty range for someone in your circumstances and with your history
• Your prospects of being granted bail if you are on remand
• Whether there is an available defence
• The court process  

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