Criminal Law | Offences | Rape In Melbourne

Rape In Melbourne

Rape in Melbourne and elsewhere in Victoria is a strictly indictable offence that carries a maximum penalty of 25 years imprisonment. It is contained in sections 38 and 39 of the Crimes Act and must be finalised in the County Court. This article outlines the law on rape in Melbourne and the rest of Victoria.

What actions might constitute rape in Melbourne?

There are four different bases on which a person can be found guilty of rape in Melbourne.

1. The accused intentionally sexually penetrated another person without their consent while being aware they were not or might not be consenting or without thinking about whether they are consenting;
2. The accused failed to withdraw from sexual penetration after becoming aware the other person was not consenting or might not be consenting;
3. The accused compelled a person to sexually penetrate themselves or another person;
4. The accused compelled a person to continue sexually penetrating them or another person.

What is sexual penetration?

Sexual penetration is defined in section 35 of the Crimes Act as the introduction, to any extent, by a person of either:

• Their penis into another person’s vagina, anus or mouth, whether or not there is an emission of semen; or
• An object or part of their body (other than the penis) into another person’s vagina or anus, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

Elements of rape in Melbourne

The most commonly prosecuted form of rape in Melbourne or elsewhere in Victoria is an allegation that someone intentionally sexually penetrated a person without their consent. This requires the prosecution to prove beyond a reasonable doubt that the accused:

• Intentionally sexually penetrated a person;
• The other person did not consent; and
• At the time the sexual penetration took place the accused either was aware that the person was not consenting or might not be consenting OR did not give any thought to whether they were consenting.

Defences to rape

There is only one legal defence to a charge of rape. This is that the alleged victim consented to sex with the accused or that the accused believed on reasonable grounds that they were consenting.

A person charged with rape may also defend the matter by relying on a factual defence, such as that sexual penetration did not occur or that they were not the person who committed the offence.

What is consent?

Consent is defined in section 36 as ‘free agreement’. A person is not taken to have consented to an act validly if:

• They agreed because of force or fear of force;
• They agreed because of fear of harm;
• They were unlawfully detained;
• They were asleep or unconscious;
• They were so affected by alcohol or a drug that they could not consent to the act or withdraw consent given earlier;
• They were unable to understand the nature of the act;
• They were mistaken about the nature of the act;
• They were mistaken about the identity of the person involved in the act;
• They mistakenly believed that the act was for medical or hygienic purposes;
• If the act involves an animal, they mistakenly believe the act was for veterinary or agricultural purposes or scientific research purposes;
• They did not say or do anything to indicate consent to the act;
• They consented to the act but later withdrew their consent.

What is a reasonable belief?

A person is not guilty of rape if they believed on reasonable grounds that the alleged victim was consenting to sex. Whether an accused had a reasonable belief in consent must be assessed based on the circumstances and any steps the person took to ascertain whether the alleged victim was consenting.

In a situation where the accused was intoxicated at the time of the alleged offence, if their intoxication was self-induced, whether they had a reasonable belief must be assessed based on the standard of a reasonable person who is not intoxicated in the same circumstances as the accused. If the accused’s intoxication was not self-induced, the standard is that is that of a reasonable person who is intoxicated to the same extent as the accused and in the same circumstances as the accused.

Jurisdiction

Rape is a strictly indictable offence only, meaning that it must be heard in the County Court. Rape maters begin in the summary jurisdiction but proceed through a committal and, if there is sufficient evidence to proceed, are committed to the County Court for trial or sentence.

Sexual assault

Sexual assault is a less serious offence than rape. It occurs when a person sexually touches another person without the other person’s consent and without a reasonable belief that the other person is consenting. A sexual assault does not involve sexual penetration but only touching that is of a sexual nature.

Sexual assault is governed by Section 40 of the Act and carries a maximum penalty of 20 years imprisonment. It can be finalised in the summary jurisdiction (Magistrates Curt or Children’s Court) or on indictment in the County Court.

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