Rape


In Victoria, the offence of rape carries a maximum penalty of 25 years imprisonment. It is an extremely serious offence and you should seek legal advice immediately if you have been charged or believe that police intend to interview you in relation to an allegation of rape. The offence of rape is contained in section 38 of the Crimes Act.

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 the victim without their consent while being aware they are not consenting or might not be consenting, or not giving any thought to whether the victim was consenting
  • Failing to withdraw from sexual penetration after becoming aware the victim was not consenting or might not be consenting
  • Compelling the victim to sexually penetrate yourself or another person
  • Compelling the victim to continue sexually penetrating yourself 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 emission of semen; OR
  2. an object or part of his or her 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 victim without their consent. This requires the prosecution to prove beyond a reasonable doubt that the accused:

  1. Intentionally sexually penetrated the victim;
  2. Without the victim’s 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 notbe consenting.

Possible Defence

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 they were 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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