This article was written by Michelle Makela - Legal Practice Director

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...

Rape in Victoria


In Victoria, the offence of rape carries a maximum penalty of 25 years imprisonment. It is contained in section 38 of the Crimes Act. Rape is a strictly indictable offence.

What Actions Might Constitute Rape?

There are four alternative ways that police can allege the offence of rape has been committed. These are:

  • Intentionally sexually penetrating a person without their consent while being aware they are not consenting or might not be consenting, or not giving any thought to whether they are consenting;
  • Failing to withdraw from sexual penetration after becoming aware the other person is not consenting or might not be consenting;
  • Compelling a person to sexually penetrate you or another person;
  • Compelling a person to continue sexually penetrating you or another person

Section 35 of the Crimes Act defines sexual penetration as the introduction, to any extent, by a person of either:

  1. Their penis into the vagina, anus or mouth of another person, whether or not there is an emission of semen; or
  2. An object or part of their 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:

  1. Intentionally sexually penetrated a person;
  2. Without their consent; and
  3. At the time the sexual penetration took place the accused either:
    1. Was aware that the victim was not consenting or might not be consenting; OR
    2. Did not give any thought to whether the victim was not consenting or might not be consenting.

Possible Defence to rape

The only legal defence to a charge of rape is that the complainant consented to sex or that the accused believed on reasonable grounds that the person was consenting.

What Court will Hear this Matter?

The matter is an indictable offence only, meaning that it must be heard in the County Court.

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

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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