What are the defences to a rape charge?

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Bill DoogueThe article What are the defences to a rape charge? is written by Bill Doogue, Director, Accredited Criminal Law Specialist, Doogue + George Defence Lawyers.

Bill is a director of the operations of Doogue + George. He has been an accredited criminal law specialist ever since 1998 and has over 30 years of experience in criminal defence.

Over the years, Bill's legal expertise has allowed the firm to represent numerous clients - including high ranking church officials, state and federal politicians, as well as huge corporations which sometimes involve foreign jurisdictions. His excellence in the field earned him a Law Institute of Victoria Service Award in 2013 and the title of Preeminent Criminal Defence Lawyer in the Doyle’s Guide 2023.

Man and Woman in a Dark AlleyBeing charged with a serious sexual offence, particularly rape, can be devastating. In order to understand your chance of beating a charge, it’s important to look at the defences to rape that may be available. Here is what you need to know.

Charge of Rape in VIC

The offence of rape is outlined under s 38 of the Crimes Act 1958 (VIC) which states that a defendant (the person charged) commits an offence if:

  • They intentionally sexually penetrated the complainant (the alleged victim); and
  • The complainant did not consent to the penetration; and
  • The defendant did not reasonably believe that the complainant consented to the penetration.

The term ‘sexually penetrates’ includes a variety of sex acts including penetration of a vagina or anus with any object or oral penetration with a penis.

There is also a separate offence under s 39 for compelling a person to sexually penetrate another.

Available defences to a charge of rape include:

  • That you did not sexually penetrate the complainant (a false accusation).
  • That the complainant did consent.
  • That the defendant reasonably believed the complainant consented.
  • That the defendant didn’t consent to the sexual act.

False Accusations

A defence to rape may be available that the defendant not sexually penetrate the complainant and that a false accusation has been made.

False accusations could be made for a variety of reasons, including mistaken identity (either due to false memories or inaccurate eye witness identification) as well as for vindictive reasons.

Mistaken identity and vindictive accusations can be challenged during the cross-examination of the complainant during committal proceedings or at trial.


A rape offence will not apply if there is evidence that the complainant consented to the sexual penetration. Section 36 of the Crimes Act 1958 (VIC) provides a broad definition of consent regarding sexual offences as ‘free agreement’.

Consent can be given verbally or expressed by actions.

A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

Similarly, consent will not be valid if it is obtained by: a mistaken belief about the identity of the other person or the sexual nature of the act performed, nor if it is obtained via threats.

Moreover, a person who is asleep or unconscious during a sexual act cannot be said to have consented.

Finally, a person cannot be said to have consented to sexual activity if so affected by alcohol or another drug so as to be incapable of giving or withdrawing consent.

Reasonable Belief in Consent

If a complainant did not consent to sexual penetration, but the defendant held a reasonable belief at the time there was consent, a rape charge cannot be made out.

Reasonable belief will not apply if the defendant:

  • Knew the complainant wasn’t consenting;
  • Was reckless to the possibility that the complainant wasn’t consenting; or
  • Had no reasonable grounds to believe the complainant was consenting.

Nevertheless, if there were reasonable grounds to believe a complainant was consenting at the time of sexual penetration, this may act as a full defence to a rape charge.

In cases of voluntary intoxication with drugs or alcohol, a defendant’s knowledge of consent is analysed from the perspective of a reasonable, sober person.

The Defendant Didn’t Consent

Under s 50H of the Crimes Act 1958 (Vic) it a defence to a sexual offence charge if the defendant also did not consent to the sexual act.

This can occur if the defendant performed the sexual act because of a threat or if they were involuntarily intoxicated with drugs or alcohol (such as if their drink was spiked).

Need help?

If you have been charged with a sexual offence it is crucial that you get in touch as soon as possible to ensure your best defence.

Get in touch with a defence lawyer and discuss how we can help you.
Date Published: 20 March 2020

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