Rape in Victoria
In Victoria, the offence of rape carries a maximum penalty of 25 years imprisonment. The offence is contained in section 38 of the Crimes Act. The only legal defence to the charge is that the victim consented to sex. This page outlines the offence of rape and the defence of consent.
What Actions Might Constitute Rape?
In Victoria, there are four alternative ways that police can allege the offence of rape has been committed. These are that the accused:
- intentionally sexually penetrated a person without their consent while being aware they were not consenting or might not be consenting, or without giving any thought to whether they were consenting;
- failing to withdraw from sexual penetration after becoming aware the other person was not consenting or might not be consenting;
- compelling a person to sexually penetrate the accused or another person;
- compelling a person to continue sexually penetrating the accused or another person.
Sexual penetration
Under section 35 of the Crimes Act, sexual penetration is the introduction, to any extent, by a person of either:
- their penis into the vagina, anus or mouth of another person, whether or not there is an emission of semen; or
- an object or part of the body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.
What The Police Must Prove
The most commonly prosecuted form of rape is an allegation that someone intentionally sexually penetrated a person without their consent. This requires the prosecution to prove beyond a reasonable doubt that the accused:
- intentionally sexually penetrated a person;
- without their consent; and
- at the time the sexual penetration took place the accused either:
- was aware that the victim was not consenting or might not be consenting; OR
- did not give any thought to whether the victim was not consenting or might not be
Defence of consent
The only legal defence to a charge of rape is consent. The defence of consent can succeed in two ways. Firstly, where the court accepts that the complainant consented to sex and secondly, where the court accepts that the accused believed on reasonable grounds that the complainant was consenting.
Under section 36 of the Crimes Act 1958, a person consents to sex if they freely and voluntarily agree. A person is not to be taken to consent just because they do not resist either verbally or physically. A person is not to be taken to consent simply because they have consented to other sexual acts on other occasions.
Under section 36AA of the Crimes Act 1958, a person does not consent to sex if:
- they do not say or do anything to indicate consent
- they submit because of force, fear of force harm or fear of harm.
Affirmative consent
The model of consent that Victoria has had since 2022 is known as the affirmative consent model. It requires that all participants to sexual activity actively communicate their consent through words or actions. This means that consent cannot be presumed in the absence of a person doing or saying something to convey their consent.
What Court Will Hear This Matter?
Rape is a strictly indictable offence. It must be finalised in the County Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
This article was written by Michelle Makela
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...