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Criminal Law Victoria Offences Rape in Victoria

Rape in Victoria

Updated on Jan 09, 2023 • 4 min read • 298 views • Copy Link

Fernanda Dahlstrom

Published in Jan 09, 2023 • Updated on Jan 09, 2023 • 4 min read • 298 views

Rape in Victoria

In Victoria, rape is the most serious of the various sexual offences against adults. It is contained in section 38 of the Crimes Act 1958. This page outlines the offence of rape in Victoria, the penalties and defences that apply, and the court processes involved in finalising a rape matter.

What is rape in Victoria?

Rape is defined as occurring when a person:

sexually penetrates another person
the other person does not consent
the accused does not reasonably believe that the person consents.

The maximum penalty that applies for rape in 25 years imprisonment.

The standard sentence for rape is 10 years imprisonment.

Rape by compelling sexual penetration

The offence of rape can also be committed by compelling a person to sexually penetrate another person, by compelling a person to sexually penetrate themselves, or by compelling a person to sexually penetrate an animal. This offence is set out in section 39 of the Crimes Act 1958. This offence also carries a maximum penalty of 25 years imprisonment.

Consent is defined in section 36 of the Crimes Act 1958 as free agreement.

A person does not consent to sex if they submit to an act because of:

force or fear of force;
fear of harm to themselves or to someone else;
being unlawfully detained;
being asleep or unconscious;
the affects of drugs or alcohol;
being unable to understand the nature of the act;
being mistaken about the nature of the act, the identity of the person.

A person does not consent to sex if they do not do or say anything to indicate consent.

Jurisdiction for rape in Victoria

Rape is a strictly indictable offence. In Victoria, it is finalised in the County Court. However, a rape matter will begin in the Magistrates Court and go through a number of procedural stages in front of a magistrate before being committed to the County Court for a plea hearing or a trial.

Seek legal advice if you have been charged with rape in Victoria

If you have been charged with rape in Victoria, Go To Court Lawyers will provide you with specialist legal advice so you are across all your options.

Our lawyers will advise you about:

the likely penalty range if you are found guilty
the strength of the case against you
whether you have an available defence
Whether any of the prosecution evidence is challengeable
Your bail prospects, if you have been remanded in custody.

Defences to rape in Victoria

The only legal defence to rape is that the alleged victim consented to sex or that the accused reasonably believed that they were consenting to sex. Whether an accused person’s belief that an alleged victim is consenting is reasonable depends on the circumstances. The court will consider any steps the person took to find out whether the other person was consenting.

A person charged with rape may also rely on a factual defence such as:

the alleged offence did not occur;
the accused was not the person who committed the offence.

Applying for bail on a rape charge in Victoria

If you have been charged with rape in Victoria and remanded in custody, you may want to consider applying for bail. Go To Court Lawyers can advise you on your bail prospects and prepare a bail application for you. Decisions about bail in Victoria are made under the Bail Act 1977.

If you are charged with rape, you will not be granted bail unless you can show the court that there is a compelling reason why bail should be granted.

If you are charged with rape while on bail for or awaiting trial for another serious offence, you will have to show the court that there are exceptional circumstances that justify the grant of bail.

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

Published in

Jan 09, 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.

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Fernanda Dahlstrom

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Fernanda Dahlstrom

Rape in Victoria

What is rape in Victoria?

Rape by compelling sexual penetration

What is consent?

Jurisdiction for rape in Victoria

Seek legal advice if you have been charged with rape in Victoria

Defences to rape in Victoria

Applying for bail on a rape charge in Victoria

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Fernanda Dahlstrom

Fernanda Dahlstrom