Rape
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Rape Lawyers Melbourne
Have you been charged with rape? Please contact us now. It’s very important that you seek expert legal advice. Book a consultation with an experienced Melbourne rape lawyer here.
What is the penalty for rape in Victoria?
A person who commits rape is liable to level 2 imprisonment (25 years maximum).
What is rape?
Rape is a serious criminal offence. It’s committed when a person intentionally sexually penetrates another person without that person’s consent. Sexual penetration includes oral, anal and vaginal penetration. Rape can be committed by and against both men and women.
Have you been charged with rape? If so, you should contact us now. Our Melbourne rape lawyers are very experienced with sexual offences. Please contact us here to arrange an appointment.
s38 Crimes Act 1958 (Vic).
Rape law in Victoria is defined under section 38 of the Crimes Act 1958 (Vic).
To prove this offence, the prosecution must establish the following three elements beyond a reasonable doubt:
- The accused intentionally sexually penetrated the complainant;
- The complainant did not consent to the sexual penetration; and
- The accused did not reasonably believe that the complainant consented to the sexual penetration.
Element One:
The first element of the offence relates to the physical act. The prosecution must establish that the accused intentionally sexually penetrated the complainant and that the accused did this act consciously, voluntarily, and deliberately.
Element Two:
The second element that the prosecution must prove is that the sexual penetration was without the complainant’s consent. Consent is a state of mind and is said to mean free agreement. Therefore, the prosecution must prove that the complainant did not freely agree to be sexually penetrated by the accused at the time.
Element Three
The third element relates to the accused’s state of mind. The prosecution must establish that at the time of sexual penetration the accused did not reasonably believe that the complainant was consenting.
This element may be proved in any of the following circumstances:
- The accused knew or believed that the complainant was not consenting;
- The accused gave no thought to whether the complainant was consenting; and
- Even if the accused may have believed that the complainant was consenting, this belief was not reasonable in the circumstances.
What is sexual penetration?
Sexual penetration in Victoria is defined in s35A of the Crimes Act 1958 as the insertion, to any extent, of an object or any part of the body, into the vagina, anus or mouth of a person.
What is consent?
Consent means you willingly agree.
Under the law, you are not agreeing to penetration if you were:
- physically forced to do it or you feared someone else would be forced
- scared of what might happen to you or someone else
- unlawfully held, for example, locked in a house or car.
Under the law, you are also not consenting if you:
- are asleep, unconscious or so affected by alcohol or drugs that you cannot freely agree
- are not able to understand that what is happening is sexual
- mistake the sexual nature of the act or think the person is someone else
- believe that the act is for medical or cleanliness purposes.
A person can, of course, be convicted of raping his or her domestic partner.
What is the age of consent in Victoria?
The age of consent in Victoria is 16 years old. But a person under 18 cannot consent to sex with a person in a position of care, supervision or authority over them (e.g. parent, teacher, youth worker, foster carer, step-parent, sports coach, etc). In Victoria, a 16-year-old can legally engage in sexual activity with another person who is 16 years or older
Is statutory rape the same as rape in Australia?
Statutory rape and rape are the same things in Australia. In Victoria, the offence of rape has been in statute since 1981. This is what ‘statutory rape’ means. Common law rape would only come up if a historical allegation arose prior to 1981.
Do I need a criminal lawyer if I've been charged with rape in Victoria?
It’s very important that you hire an experienced rape lawyer.
Being convicted of rape can have long-lasting consequences.
We strongly recommend you contact us now if you’ve been charged with rape in Victoria.
Our Melbourne rape lawyers can assess the allegations and recommend the best strategy.
Legislation / Statute
CRIMES ACT 1958 – SECT 38
Rape
(1) A person (A) commits an offence if—
(a) A intentionally sexually penetrates another person (B); and
(b) B does not consent to the penetration; and
(c) A does not reasonably believe that B consents to the penetration.
(2) A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).
CRIMES ACT 1958 – SECT 35A
Sexual penetration
(1) A person (A) sexually penetrates another person (B) if—
(a) A introduces (to any extent) a part of A’s body or an object into B’s vagina; or
(b) A introduces (to any extent) a part of A’s body or an object into B’s anus; or
(c) A introduces (to any extent) their penis into B’s mouth; or
(d) A, having introduced a part of A’s body or an object into B’s vagina, continues to keep it there; or
(e) A, having introduced a part of A’s body or an object into B’s anus, continues to keep it there; or
(f) A, having introduced their penis into B’s mouth, continues to keep it there.
(2) A person sexually penetrates themselves if—
(a) the person introduces (to any extent) a part of their body or an object into their own vagina; or
(b) the person introduces (to any extent) a part of their body or an object into their own anus; or
(c) having introduced a part of their body or an object into their own vagina, they continue to keep it there; or
(d) having introduced a part of their body or an object into their own anus, they continue to keep it there.
(3) A person (A) sexually penetrates an animal if A engages in conduct with the animal that would involve sexual penetration as defined by subsection (1) were the animal another person (B).
(4) A person (B) is sexually penetrated by an animal if B engages in conduct with the animal that would involve sexual penetration as defined by subsection (1) were the animal another person (A).
(5) In relation to sexual penetration of an animal, a reference to the vagina or anus includes a reference to any similar part.
CRIMES ACT 1958 – SECT 36
Consent
(1) For the purposes of Subdivisions (8A) to (8E), consent means free agreement.
(2) Circumstances in which a person does not consent to an act include, but are not limited to, the following—
(a) the person submits to the act because of force or the fear of force, whether to that person or someone else;
(b) 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;
(c) the person submits to the act because the person is unlawfully detained;
(d) the person is asleep or unconscious;
(e) the person is so affected by alcohol or another drug as to be incapable of consenting to the act;
(f) 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.
(g) the person is incapable of understanding the sexual nature of the act;
(h) the person is mistaken about the sexual nature of the act;
(i) the person is mistaken about the identity of any other person involved in the act;
(j) the person mistakenly believes that the act is for medical or hygienic purposes;
(k) if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;
(l) the person does not say or do anything to indicate consent to the act;
(m) having given consent to the act, the person later withdraws consent to the act taking place or continuing.
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