If you’ve been charged with the offence of rape, it is vital to get advice from specialist rape lawyers.

Under section 38 of the Crimes Act 1958 (the Crimes Act), the Prosecution must prove the following things for a person to be found guilty of rape:

  • A person (A) intentionally sexually penetrates another person (B);
  • Person B does not consent to the penetration; and
  • Person A does not reasonably believe that person B consents to the penetration.

Terms like ‘sexual penetration’ and consent have special definitions in the legislation.

There is also an offence called rape by compelling sexual penetration, contained in section 39 of the Crimes Act, which occurs when:

  • A person (A) intentionally causes another person (B):
  • To sexually penetrate person A; or
  • To sexually penetrate themselves: or
  • To sexually penetrate another person (C) or an animal; or
  • To be sexually penetrated by person C or an animal; and
  • Person B does not consent to the sexual penetration; and
  • Person A does not reasonably believe that person B consents to the penetration.

Under the law, “sexual penetration” occurs when person A introduces:

  • A part of their body or an object into person B’s vagina or anus; or
  • Their penis into person B’s mouth.

Sexual penetration also refers to a situation where person A, continues the act of penetration after consent has been withdrawn.

The term “consent” means free agreement. Examples of when a person does not consent include when the person submits to the act because of force, or fear of force, or because the person is asleep or unconscious.

Whether a person reasonably believes the other person is consenting depends on the circumstances. A person will not be taken to reasonably believe that someone is consenting to sexual penetration just because they are intoxicated.

Defences

The defences that may be available to a charge of rape or rape by compelling sexual penetration will depend on the circumstances of the case. An example of such a defence is that the other person consented to the sexual penetration or that the accused reasonably believed that the other person consented to the sexual penetration.

Legislative exception

There is a specific legislative exception to the charge of rape or rape by compelling sexual penetration if the act in question occurred during a procedure carried out on a person in good faith for medical or hygienic purposes or, if an animal is involved, for veterinary, agricultural or scientific research purposes.

Penalty

The maximum penalty for the offence of rape and the offence of rape by compelling sexual penetration is 25 years’ imprisonment.

Contact us

Crimcorp has extensive experience advising and defending clients who have been charged with rape. If you’ve been charged with this offence, contact our specialist team of rape lawyers now to discuss your case.