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Rape
Rape
Written by
Paul McClure
Criminal Defence Lawyer
What the Law states - Rape
Crimes Act 1958 - SECT 38
Rape38. Rape
(1) A person must not commit rape.
Penalty: Level 2 imprisonment (25 years maximum).
(2) A person commits rape if-
(a) he or she intentionally sexually penetrates another person without that person's consent-
(i) while being aware that the person is not consenting or might not be consenting; or
(ii) while not giving any thought to whether the person is not consenting
or might not be consenting; or
(b) after sexual penetration he or she does not withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting.
(3) A person (the offender) also commits rape if he or she compels a person-
(a) to sexually penetrate the offender or another person, irrespective of whether the person being sexually penetrated consents to the act; or
(b) who has sexually penetrated the offender or another person, not to cease sexually penetrating the offender or that other person, irrespective of whether the person who has been sexually penetrated consents to the act.
(4) For the purposes of subsection (3), a person compels another person (the victim) to engage in a sexual act if the person compels the victim (by force or otherwise) to engage in that act-
(a) without the victim's consent; and
(b) while-
(i) being aware that the victim is not consenting or might not be consenting; or
(ii) not giving any thought to whether the victim is not consenting or might not be consenting.
Maximum Penalty in Victoria
The maximum penalty for a charge of rape is 25 years imprisonment.
The charge of rape is defined in section 3 of the Sentencing Act 1991 as a serious offence. Offenders who commit a serious offence on or after 1 May 2011 will no longer be eligible for a suspended sentence in any of the Courts.
What the Prosecution must prove - Rape - Vic
(a) The accused sexually penetrated another person.
(b) The accused did so without the consent of the other person.
(c) The act of sexual penetration was intentional by the accused;
(d) At the time of penetration the accused was aware that the victim was not consenting or might not be consenting. Alternatively, after penetration the accused became aware that the victim was not consenting or might not be consenting but did not withdraw on becoming so aware.
Possible Defences - Rape
(a) Consent.
(b) Factual dispute.
(c) Identification dispute.
(d) Lack of intent.
(e) No penetration.
Which court will hear the charge of Rape
The charge of rape is heard in the County Court.
