Assault with Intent to Commit Rape

What is “Assault with Intent to Commit Rape”?

If a person assaults another person with the specific intent to engage in sexual intercourse with them, without their consent (i.e with intent to rape them), they commit the offence of ‘Assault with Intent to Commit Rape’ under section 351 of the Criminal Code (Qld).  The maximum penalty for this offence (where it is charged without any circumstances of aggravation)  is 14 years’ imprisonment.

The ‘Assault’ component of this charge refers to:

•  Any striking, touching, movement or other application of force of any kind to another without that other person’s consent; or
• Any bodily act or gesture which threatens or attempts to threaten an application of force in circumstances where the person making the attempt to threaten (or threatening) the other person has the apparent ability to carry out their threat, without the other person’s consent.  

The assault can also be indirect, and include, applying heat, light, electrical force, gas, odour, or any other substance or thing, if it is applied in such a manner as to cause injury or personal discomfort to the other person.

In this charge, the assault itself does not have to be sexual in nature, but it must be accompanied by an intention to subject the other person to a penetrative sexual act without their consent.

Consent

The meaning of “consent” in Queensland for a sexual offence means a free and voluntary agreement between the parties. The following rules apply to consent given for sexual acts:

1. A person may withdraw consent to an act at any time.
2. A person who does not offer physical or verbal resistance to an act is not, by reason only of that fact, to be taken to consent to the act.
3. A person does not consent to an act just because they consented to—
   1. a different act with the same person; or
   2. the same act with the same person at a different time or place; or
   3.  the same act with a different person; or
   4. a different act with a different person.

The following acts constitute Assault with Intent to Commit Rape:

• Pushing or physically forcing a person to their knees with the intention of forcing them to give you oral sex
• Using threats of violence to force someone to have sex with you  
• Pinning a person to the ground or restraining them in some way with the intention of having sex with them

What Must be Proven?

For a person to be found guilty of the offence of Assault with Intent to Commit Rape, the Prosecution must prove each of the following elements of the offence:

1. That the accused intentionally applied force to the complainant’s body, directly or indirectly;
2. That the complainant did not lawfully consent to that application of force;
3. That at the time of the assault, the accused intended the complainant to take part in a penetrative sexual act; and
4. That the accused did not reasonably believe that the person would consent to the intended penetrative sexual act.

If the Prosecution cannot prove every single one of the above elements to the requisite standard (beyond a reasonable doubt), the person should be found not guilty. 

Assault with Intent to Commit Rape- Simpliciter v Aggravated offences

In Court you will often hear charges without circumstances of aggravation referred to as “simpliciter” offences, and charges with circumstances of aggravation referred to as “aggravated” offences. 

The charge of Assault with Intent to Commit Rape is an offence which will attract a heavier sentence where it is charged with a circumstance of aggravation.  Where a circumstance of aggravation is averred by Prosecutions as part of the allegations of the charge, the charge becomes an “aggravated” offence and the maximum penalty the person faces will increase. Aggravated offences generally attract heavier sentences because of their added seriousness. 

The maximum penalty for the charge of Assault with Intent to Commit Rape simpliciter is 14 years imprisonment. 

There is only one legislative circumstance of aggravation for the offence of Assault with Intent to Commit Rape. Under the s 161Q of the Penalties and Sentences Act, it is a circumstance of aggravation to the charge of Assault with Intent to Commit Rape, if, at the time the offence was committed, or at any time during the course of the commission of the offence, the offender: 

• Was a participant in a criminal organisation; and 
• they knew or ought reasonably to have known the offence was being committed:
  • at the direction of the criminal organisation or one of its participants, or
  • in association with 1 or more persons who were participants of the criminal organisation at the time the offence was committed; or
  • for the direct or indirect benefit of a criminal organisation 

The above circumstance of aggravation was introduced some years ago to specifically target and more substantially punish the illegal conduct of motorcycle gangs and other criminal organisations. The impact of this circumstance of aggravation is that, if convicted of this offence with this circumstance of aggravation, the Court must impose a base component (sentence of imprisonment imposed under the law) and a mandatory 7 years’ imprisonment, to be served cumulatively (or on top of) the base component and this additional 7 year period must be served wholly in a corrective services facility. 

Which Court Will Hear the Matter?

In some cases an accused person can have their charge of Assault with Intent to Commit Rape finalised in the Magistrates Court of Queensland. This is only possible if:

•  they do not elect to have a trial by Jury in the District Court
•  they are pleading guilty, and
•  the victim of the offence was 14 years or older at the time of the offence; 
•  they are not charged with a circumstance of aggravation; and
• The Magistrates’ Court does not abstain from jurisdiction because the person is likely to be sentenced to more than 3 years imprisonment

In all other cases, because of the nature and seriousness of the charge of rape, the matter must proceed on indictment and be finalised before the District Court of Queensland.

Possible Defences to a charge of Assault with Intent to Commit Rape

The following defences may be available to a person charged with Assault with Intent to Commit Rape, depending on the facts and circumstances of their particular case: 

• That the Defendant held no intention to rape the Complainant at the time of the assault: Because intent is a specific element of this offence, a lack of intent to commit rape at the time of the alleged assault will act as a defence to this charge.

• Consent was given to the accused by the complainant prior to the alleged act

• The person charged had a mental illness at the time of the offence which deprived them of their capacity to understand what they were doing, or to control their actions, or to know that they ought not commit the offence. (Insanity/ Unsoundness of mind – Section 27 of the Criminal Code);

• The person charged was involuntarily intoxicated (for example they were drugged by another)  and their level of intoxication at the time of the alleged offence was to such an extent that they did not have the capacity to understand what they were doing at the time of the offence, or to control their actions, or to know that they ought not do the penetrative sexual act (Non-voluntary Intoxication – Section 28 Criminal Code)

Common Questions

What is the maximum penalty?

The maximum penalty for the offence of Assault with Intent to Commit Rape is 14 years imprisonment. 

Are the media allowed to publish my name and picture and details about my charge of Assault with Intent to Commit Rape even if I haven’t been found guilty?

Yes. Anyone charged with rape, attempted rape, Assault with Intent to Commit Rape, or sexual assault may be named in any form of media coverage (including print, online, or television) at any stage of the legal proceedings.  However, a person charged with one of these offences can apply to the Court for a non-publication order (also known as a ‘suppression order’). 

The Court will only make such an order if one of the following three grounds is met:

1. The order is necessary to prevent prejudice to the proper administration of justice; or
2. The order is necessary to prevent undue hardship or distress to a complainant or witness in relation to the charge; or
3. The order is necessary to protect the safety of any person.

There are numerous other considerations for a Court hearing such an application, but the principle of ‘open justice’ (which dictates that judicial proceedings should occur in open Court, publicly and in open view, and with no restriction on reporting) is usually of paramount consideration.  These applications can be complex and can actually draw media attention in circumstances where they may not have been aware or interested in your matter before. If you are needing assistance with one of these applications, you should get legal advice.

Will I go to Gaol or have a criminal record if I am convicted of this offence?

The following is a list of potential sentences a Queensland Court can make (in order of seriousness, from least serious to most serious):

• Convict and not further punish
• Release upon entering into a recognisance, with no conviction recorded (also known as a Good Behaviour Bond)
• A monetary fine
• Probation 
• Community Service
• An Intensive Corrections Order
• Suspended Orders of Imprisonment
• Imprisonment 

Assault with Intent to Commit Rape is a serious criminal charge. If a person pleads guilty to this offence, or is found guilty after a trial, there is a very real chance the Court will consider sentencing the person to a period of actual imprisonment, even if the person has never been in trouble before.  In Queensland:- 

• If a person is convicted of an offence of a sexual nature committed in relation to a child under 16 years, the offender must serve an actual term of imprisonment unless there are exceptional circumstances; and
• Any time the Court orders a term of imprisonment for an offence (even if the imprisonment is wholly suspended, or the person is granted immediate parole) the Court must record a conviction. This means the offence will appear on the person’s Court outcomes, and the person will have recorded criminal history.
• The offence of Assault with Intent to Commit Rape is both a ‘serious violent offence’ and a ‘qualifying offence’ under the Penalties and Sentences Act in Queensland. This means if you are convicted of this offence and sentenced for it, the Court can, in some instances:
  • Make a serious violent offender declaration as a part of your sentence, requiring you to serve 80% of your sentence (or 15 years, whichever is less) in actual custody before being eligible to apply for parole; or
  • Impose an indefinite sentence instead of imposing a fixed term of imprisonment.

The consequences of a conviction being recorded for any type of offence can be serious if you have a job or type of employment where you need to have no prior criminal convictions. It may also jeopardise your employment and/or make it difficult to obtain visas for overseas travel.  A conviction for an offence of a sexual nature can completely rule out certain career paths, particularly those vocations which require a blue card, where you are working with children, or other vulnerable communities. If you are convicted of an offence of this nature, you can expect to have your blue-card taken away from you. 

What should I do if I am contacted by Police about a charge of ‘Assault with Intent to Commit Rape’? 

If you are contacted by Police and they want to talk to you about a charge of Assault with Intent to Commit Rape, it’s important you receive good advice at the earliest opportunity and before speaking with Police or anyone else about the matter.  Armstrong Legal provides expert legal advice and representation for offences of this nature.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.