We are Melbourne Lawyers who deal with a lot of rape cases. We believe it is very important for our clients to understand what they are facing. A rape charge is about having sex when the other person is not consenting. If you intentionally sexually penetrate another person without consent you are guilty of rape.1 Sexual penetration includes oral, anal and vaginal penetration2. .Rape may be committed by and against both men and women.
- The statutory provisions
- The elements of rape
- Possible defences by rape lawyers
- Sentencing outcomes
- Case examples from our firm
The Crimes (Rape) Act 1991 (Vic) introduced a number of significant changes to the law in Victoria. Among those changes was to the fact that a woman could not be guilty of the rape of another person.3 Now this is not the case.
Pursuant to s 38 of the Crimes Act 1958 (Vic) (“the Act”), a person commits rape if they:
- Intentionally sexually penetrate another person; and
- The other person does not consent to the penetration; and
- They did not reasonably believe the other person consented to the penetration;
Generally people think of rape as being the insertion of a man’s penis into a woman’s vagina. However, as expert rape lawyers know, rape includes the insertion of any part of their body (such as their fingers) or an object into the complainant’s (the person making the allegation) vagina or anus, or of their penis into the complainant’s mouth.
This page briefly explains some basic legal advice in a rape charge.
The prosecution must prove each element of the crime beyond reasonable doubt. There are four elements of rape. As outlined above, a person commits rape if he or she: (1) sexually penetrated another person; (2) intentionally; (3) without that person’s consent to the sexual penetration; and (4) the accused did not reasonably believe the other person consented to the penetration.
If the prosecution is unable to establish each of these four elements beyond reasonable doubt, then an accused is not guilty of the offence. The job of an expert rape lawyer is to show that one of the elements is not being proved.
Element 1: Sexual penetration
The prosecution to prove rape must prove that an accused sexually penetrated the complainant.
Sexual penetration is defined in the relevant law. A person sexually penetrates another person if they introduce any part of their body or an object into that person’s vagina or anus. A person also sexually penetrates another if they introduce their penis into that person’s mouth. Inserting another body part, such as fingers, into another person’s mouth without their consent is not rape. A person also sexually penetrates another for the purpose of this element if, after having introduced their body part or penis into the person with that person’s consent, they continue to keep it there if consent is withdrawn.
Getting another person to do any of these things also satisfies this element and may be rape.
The concept of penetration includes even slight penetration. The prosecution only has to prove that there has been penetration to any extent. Mere touching of the relevant body part is not enough to satisfy this element of a rape charge.4
Penetration only needs to have been slight or fleeting and does not need to have been committed for the purposes of sexual gratification.5 The prosecution is not required to prove that a man ejaculated.
The Prosecution does not need to specify the exact way the complainant was penetrated. It is sufficient to simply allege that they were penetrated by a penis, a bodily part or some other object and this is sufficient for rape.6 However in defending a rape charge the complainant’s evidence might be used to show that the complainant is lying or mistaken.
Meaning of vagina
In a rape case Vagina is defined to include the “external genitalia” as well as a “surgically constructed vagina.” Rape can therefore be committed against transsexuals.
Element 2: Intention
The second element that the prosecution must prove is that the sexual penetration was intentional.
Element 3: Consent
The prosecution must also prove that the complainant was not consenting at the time.
Whether or not there was consent is often a central issue in rape trials. Under the Act, consent means free agreement.7 The Act provides a non-exhaustive list of circumstances in which a person is not consenting:
- the person submits to the act because of force or the fear of force, whether to that person or someone else;
- the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;
- the person is asleep or unconscious;
- the person is so affected by alcohol or another drug as to be incapable of consenting to the act;
- the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;
Note – This circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting.
- the person is incapable of understanding the sexual nature of the act;
- the person is mistaken about the sexual nature of the act;
- the person is mistaken about the identity of any other person involved in the act;
- the person mistakenly believes that the act is for medical or hygienic purposes;
- if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;
- the person does not say or do anything to indicate consent to the act;
- having given consent to the act, the person later withdraws consent to the act taking place or continuing.
- where the person does not say or do anything to indicate consent to the act;
- having initially given consent to the act, the person later withdraws consent to the act taking place or continuing.
- Did the accused sexually penetrate the complainant in the way alleged?
If yes, then he will ask question 2
If no, then the accused is not guilty of rape
- Did the accused intend to sexually penetrate the complainant?
If yes, then he will ask question 3
If no, then the accused is not guilty of rape
- Did the sexual penetration occur without the complainant’s consent?
If yes, then go to question 4
If no, then the accused is not guilty of rape
- At the time of sexual penetration:
a. Was the accused giving any thought to whether or not the complainant was consenting?
If yes, then he will ask question 4(b)
If no then the accused is guilty of rape (as long as you have answered yes to questions 1, 2 & 3)
b. Was the accused aware that the complainant was not consenting or that s/he might not be consenting?
If yes then the accused is guilty of rape (as long as you have answered yes to questions 1, 2 & 3)
If no, then the accused is not guilty of rape
Consent may be given verbally or by a person’s conduct. Consent must be the granting of free and conscious permission.8 A person has not necessarily consented to a sexual act just because they did not protest or physically resist. They have also not consented just because on an earlier occasion they have engaged in a sexual act with that person.9 Agreeing to sex because of threats or duress may mean there is no consent 10. People can also withdraw their consent even if they have previously said it was okay.11
Consent to sex may also be hesitant, reluctant, grudging or tearful12. Pressure put on the person consenting does not mean there is not of itself mean there is no consent. It is a question of degree as to whether the consent is still voluntary or whether it is rape.13
R v Galliene  NSWR 919
In this case the accused had entered the complainant’s bed in the dark while she was asleep and had intercourse with her. When she awoke she permitted him to continue, being under the impression that he was her husband. The accused was convicted of rape.
Element 4: The Accused’s state of mind
This element relates to the accused’s state of mind about the complainant’s consent. The prosecution must prove that the accused did not reasonably believe that the complainant consented to the penetration.
The act is relatively vague and only says that whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances including any steps that the accused took to find out whether the complainant consented.14 Whether the accused reasonably believed the complainant was consenting will depend on circumstances such as the past relationship between the accused and the complainant (if there was one) and the complainant’s behaviour prior to the sexual penetration.
Effect of intoxication on reasonable belief
In determining whether or not an accused who was intoxicated had a reasonable belief in consent, if the intoxication was self-induced (they drank or consumed drugs voluntarily and not because they had their drink spiked or similar), the accused is not held to a lower standard and the jury must have regard to a reasonable person who is not intoxicated but who was in the same circumstances as the accused.15
If an accused’s intoxication is not self-induced, for example if their drink was spiked, the accused is held to a lower standard and the jury must have regard to a reasonable person who is intoxicated and was in the same circumstances as the accused.
The accused reasonably believed there was consent
A person who reasonably believed there was consent is not guilty of rape. This is because such a belief means the Prosecution have not proved the fourth element above.
Whether or not the accused reasonably believed the complainant was consenting is a question of fact to be determined by a jury and will depend on the past relationship between the accused and the complainant (if there was one), the complainant’s behaviour prior to the sexual penetration, and whether the accused made any enquiries of the complainant to see whether or not she was consenting.
In a rape trial, the questions that a judge will ask a jury to consider are:
Rape is a crime for which innocent people are often wrongly charged. That is clear from our experience as expert rape lawyers and from the number of clients who are acquitted of these charges. A number of defences are potentially available in a rape case. Defences depending on the particular circumstances of each case. Some of these defences include:
The complainant is lying
A rape charge is often brought out of jealousy or an attempt to gain revenge. It is not uncommon, for example, for a stalker or someone who is infatuated with another to make false rape allegations. Two studies, one conducted in the United States of America and one conducted in the United Kingdom, have found that approximately 10% of rape allegations were classified as false allegations.16
This defence is generally run by expert rape lawyers when the accused and the complainant did not know each other. Circumstances such as poor lighting or prejudicial photo or line-up identification procedures can result in an innocent person being mistakenly identified. Sometimes these rape allegations are from 30 or more years ago and the accuser is just getting it plain wrong.
Admission of some contact but a denial of sexual penetration
An accused may admit that there was some sexual contact but deny that there was penetration.
There was actual consent
There may have been consent at the time of the sex. We have been lawyers in jury trials for rape where complainants have regretted the sexual penetration and later claimed they did not agree to the sex. These are cases where the complainant may have cheated with an accused for example, or felt ashamed.
The accused believed there was consent
A person who believed there was consent is not guilty of rape. This is because such a belief means the Prosecution have not proved the fourth element above.
The belief of an accused that the complainant was consenting does not have to be reasonable and the unreasonableness of an accused’s belief does not mean that he is guilty,17 however it must have been genuinely held.18
In determining belief in consent any evidence must be considered. Also;
1 Was that belief reasonable in the circumstances?
2 Did the accused take any steps to find out whether the complainant was consenting or might not be consenting?
3 What were those steps?
The victim’s state of intoxication in a rape case
Drunken consent is still consent19. .No rape will have occurred where there is consent. Even if the only reason for consent was being drunk. 20 The critical question is whether the complainant has been rendered incapable of deciding whether to consent or not. The state of intoxication will also be relevant to the witness’s reliability. It is hard to honestly and accurately recall events if you are really drunk .
The accused’s state of intoxication
Intoxication may be relevant to an accused’s state of mind if charged with rape.Did the accused know the complainant was not consenting? The drunkenness of a person accused of rape will be relevant when considering his or her state of mind. The prosecution must rebut any reasonable possibility that intoxication played a part in the accused believing there was consent.21
There was a sentencing snapshot produced by the Sentencing Advisory Council,23 which covers the period 2007-2008 to 2011-2012. It states that rape was the principal offence23 in 2.6% of cases sentenced in the higher courts during this period.
In total, 280 were people were sentenced in the higher courts for 543 charges of rape. All the offenders were men.
Over the five year period of the sentencing snapshot, 93% of people were given an immediate custodial sentence24 and 88% a period of imprisonment on rape charges.
A “principal sentence” is the sentence that is imposed for the principal offence. A total of 232 people received a principal sentence of imprisonment for rape between 2007-2008 and 2011-12. Imprisonment terms ranged from two to 16 years but the most common length of imprisonment imposed was between 5 and 6 years (54 people). The average length of imprisonment imposed for rape was four years and eleven months in 2011-12.
The total effective sentence in a case with multiple charges is the sentence that results from the court ordering the individual sentences to be served concurrently or cumulatively. The most common total effective sentence where the principal offence was rape was between six and seven years (39 people) while the median total effective sentence was six years.
Section 11(4) of the Sentencing Act 1991 (Vic), refers to a court sentencing an offender to imprisonment in respect of more than one offence. If so, the non-parole period must be in respect of the total effective sentence of imprisonment. For this reason, the non-parole period will be longer than the individual principal sentence for rape. The average length of non-parole periods ranged from four years and three months in 2011-12 to four years and eleven months in 2008-2009.
Of course the sentence received will depend on the circumstances of each particular case. These include things such as the offender’s background and prior criminal history as well as the circumstances of the rape. For example, in Ibbs v R (1987) 163 CLR 447, the High Court of Australia found that failing to withdraw when asked is less serious than if no consent was given from the outset.
Evidence of a prior sexual relationship can be an important mitigating factor in sentencing.
A prior sexual relationship can be an important factor in sentencing because familiarity with an offender may lessen the fear for the victim.25 However this is not always the case and in fact, in some circumstances, may be an aggravating feature of the offence.26
The most important issue if you are charged with rape is to find an expert rape lawyer who has dealt with many rape cases. Please call us and discuss your case.
To view sentencing decisions by Victorian County Courts for the charge of Rape, visit this page.
- Drugging and Rape
- Discontinuance for Rape and Unlawful Assault
- Withdrawing a Rape Charge
- Rape, Aggravated Burglary, Theft, Burglary – Discontinuance
- Rape charges – not guilty by jury
Section 38(2)(a) of the Act.
Section 38(2)(a) of the Act.
R v Ram and Ram (1893) 17 Cox CC 609.
See Anderson v R  VSCA 108.
R v Dunn 15/4/1992 CA NSW
R v Castles (Ruling No.1)  VSC 561.
Section 36 of the Act.
R v Wilkes and Briant  VR 475.
Section 37AAA of the Act.
Question of Law (No 1 of 1993) (1993) 59 SASR 214.
See Question of Law Reserved on Acquittal Pursuant to Section 350(1A) Criminal Law Consolidation Act (No 1 of 1993) (1993) SASR 214; sub nom Re Case Stated by DPP (No 1 of 1993) 66 A Crim R 259 (CCA) per King CJ at 260.
See Holman v The Queen  WAR 2 (CCA) per Jackson CJ at 6.
Black v Corkery (1988) 33 A Crim R 134 per Young J at 142.
 Crimes Act 1958 (Vic) s 37G.
 Crimes Act 1958 (Vic) s 37H.
See Cybulska, Beata, ‘Sexual assault: key issues’ J R Soc Med. Jul 2007
R v Zilm (2006) A Crim R 149 per Callaway JA at 151.
See R v Saragozza  VR 187 per the court at 193-194.
R v Bree  3 WLR 600 per Sir Igor Judge P at .
R v Francis  2 Qd R 300 per Davis JA and Demack J at 305.
R v Curtis (1991) 55 A Crim R 209 per Olsson J at 218.
Sentencing snapshot No.145 June 2013
If a person is sentenced for a case with a single charge, the offence for that charge is the principal offence. If a person is sentenced for more than one charge in a single case, the principal offence is the offence for the charge that attracted the most serious sentence according to the sentencing hierarchy.
An immediate custodial sentence is one that involves at least some element of immediate (as opposed to wholly suspended) imprisonment or detention. It includes imprisonment, partially suspended sentence, youth justice centre order, residential treatment order, custodial supervision order and aggregate imprisonment.
R v Wiren (1996) 5 NTLR 211 per the court at 226.
R v Harris  4 VR 21 per Tadgell JA at 29.
Need further legal advice on this charge?
Contact one of our lawyers specialising in cases of Rape, Josh Taaffe.