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6.4.2 - Charge: Attempted rape (Victoria)

Click here to obtain a Word version of this document for adaptation

 

This charge is provided to show how an offence direction can be modified into an attempt direction. The attempt specific content is highlighted in red.

The elements

I must now direct you about the crime of attempted rape. That crime has the following 4 elements.

One - The accused attempted to sexually penetrate the complainant in the way alleged.

Two - The accused did this intentionally.

Three - The complainant did not consent to the intended sexual penetration.

Four - the accused had one of the following three states of mind about the complainant’s consent

  1. The accused was aware that the complainant was not consenting, or
  2. The accused was aware that the complainant might not be consenting, or
  3. The accused was not giving any thought to whether the complainant was not or might not be consenting.

Before you can find NOA guilty of attempted rape you must be satisfied that the prosecution has proved all four of these elements beyond reasonable doubt.

I will now explain each of these elements in detail.

Sexual Penetration

The first element relates to what the accused is alleged to have done. The prosecution must prove beyond reasonable doubt that the accused attempted to sexually penetrate the complainant in the way alleged. [If in issue, add: The prosecution must also prove that the accused did this act consciously, voluntarily, and deliberately.] [1]

To understand this element, I will first explain when the law says that a person commits an attempt and then I will explain what the law means by sexual penetration.

Attempt

The law says that for a person to be guilty of attempting to commit a crime, you must be satisfied that NOA did something that was more than mere preparation for the commission of that offence, but was immediately and not remotely connected with its commission.

When a person commits an offence, s/he will often perform various acts leading up to its commission. For example, s/he may make the initial decision to commit the offence, and may plan how s/he will carry it out. In some cases s/he may purchase the necessary tools or weapons.

It is for you to determine, using your common sense, whether NOA's conduct moved beyond merely preparing to commit the offence.

The prosecution argued that this element has been met in this case. [Describe relevant prosecution evidence and/or arguments.] The defence denied this, arguing that [describe relevant defence evidence and/or arguments].

Act of sexual penetration

I will now explain the words sexual penetration. The law defines the term sexual penetration to include a number of different acts. In this case the prosecution must prove that NOA introduced [identify item or body part, e.g. "his penis"] to any extent into NOC’s [vagina/anus/mouth].

[If relevant add:

[In vaginal penetration cases, add the following shaded section]

The law says that the vagina includes the external genitalia – that is the outer or external lips of the vagina. So the prosecution can prove this element by proving that NOA attempted to introduce [identify body part or object] to any extent between the outer lips of NOC’s vagina.

[In cases involving alleged penetration in the context of a medical procedure or hygienic purposes add the following shaded section]

According to the law, the introduction of an object or body part other than the penis into the [vagina/anus] of a complainant does not always amount to sexual penetration. It is not sexual penetration if it is done in good faith for medical or hygienic purposes. In this case, the accused submits [refer to relevant evidence]. It is for the prosecution to prove to you, beyond reasonable doubt, that the attempted insertion of [name of object] by NOA into NOC’s [anus/vagina], was not done in good faith for [medical/hygienic] purposes.

In this case [insert relevant evidence or competing arguments about proof of sexual penetration].

The act was conscious, voluntary and deliberate

[If the evidence or arguments have placed voluntariness in issue, add the shaded section]

As I have directed you, the prosecution must prove that the accused attempted to sexually penetrate the complainant consciously, voluntarily, and deliberately.

This requirement is in issue here because [describe the evidence or arguments that place voluntariness in issue].

You must find NOA not guilty unless the prosecution can satisfy you that [describe the finding that proves voluntariness in the circumstance of the case, e.g. "NOA introduced his finger into NOC’s vagina deliberately, and not accidentally" or "NOA was conscious and not asleep and dreaming at the time of the penetration"].

Intention

The second element that the prosecution must prove beyond reasonable doubt is that the attempted sexual penetration was intentional.[2]

[If intention is not in issue, add the shaded section]

This element is not in issue here. [If appropriate, explain further, e.g.

 

Consent

The third element that the prosecution must prove is that the complainant was not consenting to the intended sexual penetration.

The law says that consent means free agreement. So the prosecution must prove that NOC did not freely agree to being sexually penetrated by NOA [at the time in question].

The law identifies a number of circumstances where the complainant is deemed not to freely agree, or consent, to sexual penetration. These circumstances include [insert relevant section(s) from the following and apply to the evidence:

  1. the person submits because of force or the fear of force to that person or someone else;
  2. the person submits because of the fear of harm of any type to that person or someone else;
  3. the person submits because she or he is unlawfully detained;
  4. the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing;
  5. the person is incapable of understanding the sexual nature of the act;
  6. the person is mistaken about the sexual nature of the act or the identity of the person;
  7. the person mistakenly believes that the act is for medical or hygienic purposes.]

If you are satisfied beyond reasonable doubt that one of these circumstances existed in relation to NOC, you must find that s/he was not consenting. However, you do not need to consider this question only by reference to these particular circumstances. If you are satisfied beyond reasonable doubt on any basis arising from the evidence that the complainant was not consenting, then this element will be proven.

[If there is evidence the complainant did not indicate agreement, add the following shaded section if relevant]

The law also says that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person’s free agreement.

This means that if you accept that NOC did not say or do anything to indicate free agreement to the attempted sexual penetration at the time of that act, you may find on that basis that s/he did not consent to that act.

[Where evidence is given about the absence of physical resistance, lack of physical injury or past consensual sex, add the following shaded section if relevant to the facts in issue]

The law also says that you are not to regard the complainant as having freely agreed just because:

● [if relevant] the complainant did not protest or physically resist the accused;

● [if relevant] the complainant did not sustain physical injury;

● [if relevant]the complainant agreed to engage in another sexual act on that occasion with the accused or with any other person, or that s/he agreed to engage in another sexual act with the accused or another person on an earlier occasion.

However, these are relevant factors for you to consider. You must consider the action or lack of action of NOC, together with all the surrounding circumstances, in order to decide whether the prosecution has proven beyond reasonable doubt that NOC did not consent to the intended sexual penetration.

In determining whether NOC did not freely agree to be sexually penetrated, you must consider all of the relevant evidence, including what s/he is alleged to have said and done, or not said and done at the time of the alleged penetration, as well as the evidence s/he gave in court about [his/her] state of mind at that time.

In this case, [insert evidence and competing arguments relevant to proof that the complainant was not consenting].

It is important that you remember that it is not for the accused to prove to you that the complainant consented. For this third element to be satisfied, the prosecution must prove to you, beyond reasonable doubt, that the complainant did not consent.

State of Mind of the Accused

 

The fourth element relates to the accused’s state of mind about the complainant’s consent. The prosecution must prove beyond reasonable doubt that at the time of attempted sexual penetration the accused:

If the prosecution fails to prove to you beyond reasonable doubt that NOA had one of these states of mind about the complainant’s consent, then you must find this element not proven, and you must find NOA not guilty of this offence.[4]

Belief in consent

[If evidence is led or an assertion is made that the accused believed that the complainant was consenting, add one of the directions in Charge: Belief in consent]

Application of Law to Evidence

[If not previously done, apply the law to the relevant evidence here.]

Summary

To summarise, before you can find NOA guilty of attempted rape the prosecution must prove to you beyond reasonable doubt:

One — that NOA attempted to sexually penetrate NOC in the way alleged; and

Two — that NOA intended to sexually penetrate NOC; and

Three — that NOC did not consent to the intended sexual penetration; and

Four — that at the time of the attempted sexual penetration NOA either:

If you find that any of these elements have not been proven beyond reasonable doubt, then you must find NOA not guilty of attempted rape.

 

Notes

[1] Described in the instructions within this charge as the "voluntariness" requirement

[2] Because rape is an offence of basic intent (the intent to commit the physical act of penetrating the complainant) proof of the intent will rarely be separated from proof of the act, and "intention" will rarely be an independent issue. Instead, mental state issues related to the act of penetration should generally be addressed by voluntariness directions. This will be the case if the issue is negation of intent by involuntariness, unconsciousness or accident. If different "intention" issues arise, this charge should be adapted.

[3] It will only be necessary to direct the jury on the second state of mind, ‘not giving any thought to whether the complainant was consenting’, in rare cases.

[4] If this element is not in issue, it will generally be sufficient to state that conclusion at this point and elaborate no further.

Last updated: 27 February 2014

See Also

6.4 - Attempt (Victoria)

6.4.1 - Charge: Attempt (Victoria)