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7.3.2 - Rape (From 1/1/92)

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Types of Rape

Offences committed on or after 1 July 2015

  1. The Crimes Amendment (Sexual Offences and Other Matters) Act 2014 commenced operation of 1 July 2015. The Act substituted a new Subdivision (8A) in Division 1 of Part 1 of the Crimes Act 1958 and a new definition of consent in section 34C.
  2. On 1 July 2017, this definition of consent was moved to section 36 by the Crimes Amendment (Sexual Offences) Act 2016.
  3. Sections 38 and 39 of the Crimes Act 1958 create the two distinct offences of ‘rape’ and ‘rape by compelling sexual penetration’ (compelled rape):
    1. A person (A) commits rape when he/she intentionally sexually penetrates another person (B), without B’s consent, and does not reasonably believe that B consents to the penetration (s38(1));
    2. A person (A) commits compelled rape when he/she intentionally causes another person (B) to sexually penetrate A, B, another person or an animal, or be sexually penetrated by another person or an animal without B’s consent, and does not reasonably believe that B consents to doing that act (s39(1)).
  4. Prior to 1 July 2017, the definition of sexual penetration in Crimes Act 1958 s37D meant that causing a person to be sexually penetrated by a third person was dealt with as rape. Due to changes introduced by the Crimes Amendment (Sexual Offences) Act 2016, from 1 July 2017 this scenario is dealt with by the offence of compelled rape.
  5. Prior to 1 July 2015, the Crimes Act 1958 contained separate provisions for rape by sexual penetration and rape by failure to withdraw after sexual penetration. However, “failure to withdraw” is now included within the definition of sexual penetration (see “Sexual penetration” below).
  6. Prior to 1 July 2015, different offences existed in respect of the accused compelling a person to sexually penetrate the accused or a third person (see Crimes Act 1958 s38(3)), and an accused compelling a person to sexually penetrate themselves or an animal (see Crimes Act 1958 s38A). All of these types of conduct are now included under the single compelled rape provision in s39.

    Offences committed between 1 January 2008 and 1 July 2015

  7. Between 1 January 2008 and 1 July 2015, section 38 of the Crimes Act 1958 defined four distinct forms of rape. A person committed rape by:
    1. Intentionally sexually penetrating another person without their consent, while being aware that the person is not or might not be consenting, or while not giving any thought to whether the person is not or might not be consenting (s38(2)(a));
    2. After sexual penetration, failing to withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting (s38(2)(b));
    3. Compelling a person to sexually penetrate the offender or another person (s38(3)(a)); and
    4. Compelling a person who has sexually penetrated the offender or another person not to withdraw (s38(3)(b)).
  8. This charge book includes charges for s38(2)(a) rape, and s38(3)(a) compelled rape. If a case involves a failure to withdraw, contrary to ss38(2)(b) and 38(3)(b), these charges will need to be modified accordingly.
  9. Where the pleading confines the rape to the kind of rape which is proscribed by s38(2)(a), and at no point during the trial is it alleged that the accused had committed the kind of rape proscribed by s38(2)(b), the judge should not direct the jury about s38(2)(b) rape (R v SAB (2008) 20 VR 55; [2008] VSCA 150).
  10. Section 38(3) compelled rape is a wholly different offence to s38A compelled sexual penetration. Section 38(3) applies where the complainant is compelled to sexual penetrate the offender or “another person” (i.e. a person other than the victim). Section 38A involves either compulsion of the victim to sexually penetrate him or herself (i.e. self-penetration) or compelled bestiality.

    Rape and compelled rape

  11. As there have been no reported cases to date addressing the requirements of compelled rape, this commentary is primarily concerned with rape simpliciter. It is assumed that most of the principles will be equally applicable to compelled rape (with appropriate modifications), and the charges relating to compelled rape have been drafted accordingly.

    Operation of rape provisions in the Crimes Act 1958

  12. The offence of rape has changed significantly over time:

    Date

    Offence

    Crimes Act 1958

    Key changes

    On/after 1 Jul 2017

    Rape; compelled rape

    s38; s39

    New legislative definition of sexual penetration and compelled rape reclassified some conduct from rape to compelled rape

    On/after 1 Jul 2015

    Rape; compelled rape

    s38; s39

    New legislative definitions of rape and compelled rape (including a new fault element of no reasonable belief in consent)

    Crimes Amendment (Sexual Offences and Other Matters) Act 2014

    1 Jan 2008 - 30 Jun 2015

    Rape; compelled rape

    s38(2)(a); s38(4)

    Rape and compelled rape definitions expanded (introducing new fault element based on non-advertence to the complainant's state of mind)

    Crimes Amendment (Rape) Act 2007

    1 Dec 2006 - 31 Dec 2007

    Compelled rape

    s38(3)

    Compelled rape definition modified (to make the offences gender neutral)

    Crimes (Sexual Offences) Act 2006

    22 Nov 2000 - 20 Nov 2005

    Compelled rape

    s38(3)

    First legislative definition of compelled rape

    Crimes (Rape) Act 2000

    1 Jan 1992 - 21 Nov 2000

    Rape

    s38(1)-(2)

    New legislative definition of rape

    Crimes (Rape) Act 1991

    5 Aug 1991 - 31 Dec 1991

    Rape

    s38

    Rape definition modified

    Crimes (Sexual Offences) Act 1991

    1 Mar 1981 - 3 Aug 1991

    Rape

    s45

    First legislative definition of rape

    Crimes (Sexual Offences) Act 1980

    Pre 1 Mar 1981

    Rape

    None

    Common law

     

  13. If an offence is alleged to have been committed between two dates which straddle any of the commencement dates described above, the allegation is to be treated as relating to the period before the commencement of the new provision (Crimes (Rape) Act 1991 s9(4); Crimes Act 1958 s593(4), s606A(2), s609(4)).

    General guidelines

    Offences committed on or after 1 July 2015

  14. There are three elements of rape under s38(1). A person (A) commits rape if:
    1. A intentionally sexually penetrates another person (B);
    2. B does not consent to the penetration; and
    3. A does not reasonably believe that B is consenting to the penetration.

    Offences committed before 1 July 2015

  15. There were four elements of rape under s38(2)(a). A person committed rape if he or she:
    1. Sexually penetrated another person;
    2. Intentionally;
    3. Without that person’s consent;
    4. While being aware that the person was not consenting or might not have been consenting or while not giving any thought to whether the person was not consenting or might not have been consenting.

    All offences

  16. It is preferable to use the language of the legislation in charging the jury on the elements of rape (R v Soldo [2005] VSCA 136; R v Zilm (2006) 14 VR 11 per Callaway JA).
  17. Judges should take care not to run the elements together. In particular, judges should not instruct the jury that the final element relates to “the guilty mind of the accused”. For example, for offences committed before 1 July 2015, judges should not instruct the jury that the prosecution must prove that the accused “intended to commit the crime of rape in the sense that, at the time of sexual penetration, he [or she] realized that the complainant was not consenting or might not be consenting”. This direction runs together the second and fourth elements (R v Soldo [2005] VSCA 136; R v Zilm (2006) 14 VR 11 per Callaway JA).
  18. A judge should not use the word “reckless” when directing the jury about the accused’s knowledge as to lack of consent, as it is not used in the statutory language and it may mislead the jury because of its multiple legal meanings (R v Ev Costa 2/4/1997 CA Vic).

    “Sexual penetration”

    Offences committed on or after 1 July 2017

  19. For offences committed on or after 1 July 2017 “Sexual penetration” is defined by s35A of the Crimes Act 1958. This definition applies to all offences in Subdivisions (8A) to (8FA).
  20. Section 35A provides that:

    (1) A person (A) sexually penetrates another person (B) if—

    (a) A introduces (to any extent) a part of A's body or an object into B's vagina; or

    (b) A introduces (to any extent) a part of A's body or an object into B's anus; or

    (c) A introduces (to any extent) their penis into B's mouth; or

    (d) A, having introduced a part of A's body or an object into B's vagina, continues to keep it there; or

    (e) A, having introduced a part of A's body or an object into B's anus, continues to keep it there; or

    (f) A, having introduced their penis into B's mouth, continues to keep it there.

    (2) A person sexually penetrates themselves if—

    (a) the person introduces (to any extent) a part of their body or an object into their own vagina; or

    (b) the person introduces (to any extent) a part of their body or an object into their own anus; or

    (c) having introduced a part of their body or an object into their own vagina, they continue to keep it there; or

    (d) having introduced a part of their body or an object into their own anus, they continue to keep it there.

    (3) A person (A) sexually penetrates an animal if A engages in conduct with the animal that would involve sexual penetration as defined by subsection (1) were the animal another person (B).

    (4) A person (B) is sexually penetrated by an animal if B engages in conduct with the animal that would involve sexual penetration as defined by subsection (1) were the animal another person (A).

    (5) In relation to sexual penetration of an animal, a reference to the vagina or anus includes a reference to any similar part.

  21. As with the former s37D, the definition of sexual penetration does not contain an exception for good faith medical or hygienic procedures (compare Crimes Act 1958 s35 prior to 1 July 2015). Instead, this exception is provided by dedicated provisions that apply in relation to offences (see, e.g. ss48A, 49T, 50G).

    Offences committed between 1 July 2015 and 30 June 2017

  22. Between 1 July 2015 and 30 June 2017 “sexual penetration” was defined by s37D of the Crimes Act 1958 for the offences in ss38-43 (including rape and compelled rape). This definition is different from that in s35, which continues to apply to all other sexual offences, and to rape or compelled rape committed prior to 1 July 2015.
  23. Section 37D provides that sexual penetration includes:
  24. The definition of “sexual penetration” in s37D also includes the act of continuing to keep a body part or object in the vagina or anus once introduced, or the act of continuing to keep a penis in the mouth once introduced (s37D(1)(d)-(f)). This removes the need to distinguish between an act of sexual penetration and an act of failure to withdraw after sexual penetration.
  25. A person (A) also commits sexual penetration of another person (B), if
  26. The definition of sexual penetration in s37D does not contain an exception for good faith medical or hygienic procedures (compare Crimes Act 1958 s35 prior to 1 July 2015). Instead, this exception is built into the relevant offences, rather than the definition of sexual penetration (ss38(3), 39(3)).

    Offences committed before 1 July 2015

  27. Before 1 July 2015 “sexual penetration” was defined by s35 of the Crimes Act 1958 as
  28. Conduct that would otherwise have fallen within the definition of sexual penetration will not do so if carried out in good faith in the course of a procedure for medical or hygienic purposes (Crimes Act 1958 s35(1)). In such cases it is for the prosecution to satisfy the jury that the accused did not subjectively believe that there was a proper medical or hygienic purpose for carrying out the act (R v Zaidi (1991) 57 A Crim R 189).

    All offences

  29. It is not sufficient for the relevant body part to have simply been touched. It must have been penetrated to some extent (Anderson v R [2010] VSCA 108).
  30. Penetration need only be slight or fleeting. The definitions of sexual penetration include the words “to any extent” (See Crimes Act 1958 ss35 (before 1 July 2015), 37D (on or after 1 July 2015) and 35A (on or after 1 July 2017). See also Randall v R (1991) 53 A Crim R 380; Anderson v R [2010] VSCA 108).
  31. The purpose of the penetration is irrelevant. It need not have been committed for the purposes of sexual gratification (R v Dunn 15/4/1992 CA NSW).
  32. While in most cases the prosecution will be able to particularise the method of penetration (e.g., the complainant was penetrated by a penis), in some cases this will not be possible. In such cases, it will be sufficient for the prosecution to particularise the method of penetration by reference to the relevant possibilities (e.g., the complainant was penetrated by a penis, a bodily part or some other object) (R v Castles (Ruling No.1) (2007) 17 VR 329).
  33. Where alternative possible methods of penetration are left to the jury, they do not need to unanimously agree about which of those methods was used. They only need to unanimously agree that penetration took place (R v Castles (Ruling No.1) (2007) 17 VR 329).

    “Vagina”

    All offences

  34. The definition of vagina includes “the external genitalia” (s35 (before 1 July 2015 and on or after 1 July 2017)/s37C (between 1 July 2015 and 30 June 2017)). It has been held that this phrase is not within ordinary usage and needs more explanation. Where penetration is in issue, the jury should have explained to them “in precise and simple terms, what would constitute penetration of the outer lips of the vagina, and to have summarised the evidence as it related to that issue” (R v A J S (2005) 12 VR 563. See also Randall v R (1991) 53 A Crim R 380; Anderson v R [2010] VSCA 108; R v MG (2010) 29 VR 305).
  35. The definition of vagina also includes a surgically constructed vagina (s35 (before 1 July 2015 and on or after 1 July 2017)/s37C (between 1 July 2015 and 30 June 2017)). The offence can therefore apply to the penetration of transsexual people.

    “Consent”

    All offences

  36. “Consent” is defined in the Crimes Act 1958 to mean “free agreement” (s36 (before 1 July 2015 and on or after 1 July 2017)/s34C (between 1 July 2015 and 30 June 2017)).
  37. This definition of consent is relevant both to whether the complainant “consented” to the penetration, and to the accused’s state of mind regarding whether the complainant was consenting (the fault element).
  38. The Crimes Act 1958 also provides a non-exhaustive list of situations in which a person is regarded as not having given consent. The listed situations in the earlier version (s36, for offences committed before 1 July 2015) were similar, but slightly narrower than those currently listed (s34C, for offences committed between 1 July 2015 and 30 June 2017 / s36, for offences committed on or after 1 July 2017).
  39. The provisions defining consent have never been expressly drafted as “deeming provisions”, but it is relatively clear that they must be treated this way. This interpretation is supported for trials commenced on or after 1 January 2008 by either s37AAA(b) and (c) for offences committed before 1 July 2015 and by Jury Directions Act 2015 s46(4)(b) for offences committed on or after 1 July 2015 (see also R v Getachew (2012) 248 CLR 22 at [19]).
  40. For a full discussion of this topic see Consent and Awareness of Non-Consent (Pre-1/7/15) and Consent and reasonable belief in consent (From 1/07/15).

    Fault element: the accused’s awareness of, or belief in, consent

    Offences committed on or after 1 July 2015

    Warning! This element has not yet been considered by the Court of Appeal. The following material is provided as a guide only and must be used with caution.

  41. The third element is that the accused “does not reasonably believe that [the complainant] consents to the penetration” (Crimes Act 1958 s38(1)(c)).
  42. This fault element will be satisfied by any one of the following mental states:
    1. The accused believed that the complainant was not consenting;
    2. The accused did not believe the complainant was consenting. This includes circumstances where the accused gave no thought as to whether the complainant was consenting;
    3. The accused believed the complainant was consenting, but his/her belief was not reasonable in the circumstances.
  43. This element introduces objectivity into the fault element for rape and rape related offences (Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 Explanatory Memo).
  44. This element is explained in more detail in Consent and reasonable belief in consent (From 1/07/15).

    Offences committed between 1 January 2008 and 1 July 2015

  45. For offences committed between 1 January 2008 and 1 July 2015, the fault element consists of proof that the accused had any one of the following three different mental states:
    1. An awareness that the complainant was not consenting (s38(2)(a)(i)), s38(4)(b)(i);
    2. An awareness that the complainant might not be consenting (s38(2)(a)(i)), s38(4)(b)(i);
    3. A failure to give any thought to whether or not the complainant was consenting (s38(2)(a)(ii), s38(4)(b)(ii)).

    Awareness of the real possibility of non-consent

  46. The word "might" in the phrase “might not be consenting” suggests a test based on the “possibility” of non-consent. It does not suggest that the accused must have been aware that it was “probable” that the complainant was not consenting. However, the possibility of non-consent must be real, not just theoretical (R v Ev Costa 2/4/1997 CA Vic).

    Non-advertence

  47. For offences committed after 1 January 2008 it is no defence for the accused to assert that he or she was not aware that the complainant might not have been consenting to the sexual act because the accused had not given any thought to whether or not the complainant was consenting (Crimes Act 1958 s38(2)(a)(ii), s38(4)(b)(ii)).
  48. Prior to this amendment it was uncertain whether or not “non-advertence” provided a defence. On one view, non-advertence was a culpable state under the common law, and this continued for the statutory offence of rape – see DPP v Morgan [1976] AC 182 and R v Tolmie (1995) 37 NSWLR 660. However, the Crimes Amendment (Rape) Bill 2007 was enacted on the basis that this mental state was not previously culpable (see Attorney-General Rob Hulls, Second Reading Speech, Crimes Amendment (Rape) Bill 2007). The charge-book charges reflect this view. If non-advertence was a culpable mental state prior to the amendment, and it is an issue in a pre-amendment case, the charge will need to be modified.

    Effect of intoxication on awareness

  49. Intoxication can also be relevant to the issue of mistaken belief in consent. See Common Law Intoxication for more information.

    Jury directions on awareness of or belief in consent

  50. Sections 37 and 37AA of the Crimes Act 1958 provide a framework of directions in respect of the accused’s awareness of the complainant’s state of consent. These directions are mandatory where relevant to the facts in issue in a proceeding (Crimes Act 1958 s37(1)).
  51. For a full discussion of this topic see Consent and Awareness of Non-Consent (Pre-1/7/15).

    Compelled rape

    Offences committed on or after 1 July 2017

  52. “Rape by compelling sexual penetration” is a separate offence contained in s39.
  53. The elements of compelled rape are as follows (s39(1)):

    (a) A person (A) intentionally causes another person (B) —

    (i) to sexually penetrate A; or

    (ii) to sexually penetrate themselves, or

    (iii) to sexually penetrate another person (C) or an animal, or

    (iv) to be sexually penetrated by C or by an animal; and

    (b) B does not consent to the sexual penetration; and

    (c) A does not reasonably believe that B consents to the sexual penetration.

  54. In contrast to the offence as it stood before 1 July 2015 (see Offences committed between 1 July 2015 and 30 June 2017 below), the complainant for this offence is either the person who sexually penetrates another person or an animal, or, under s39(1)(a)(iv), is sexually penetrated by another person or an animal.

    Offences committed between 1 July 2015 and 30 June 2017

  55. “Rape by compelling sexual penetration” is a separate offence contained in s39.
  56. The elements of compelled rape are as follows (s39(1)):

    (1) An accused person commits compelled rape if s/he:

    (a) intentionally causes another person to sexually penetrate —

    (i) the accused; or

    (ii) themselves, or

    (iii) a third person, or

    (iv) an animal; and

    (b) the person doing the penetrating does not consent to doing the act of sexual penetration; and

    (c) the accused does not reasonably believe that that person consents to doing that act.

  57. The elements of the offence are similar to those of rape, but rather than the accused intentionally sexually penetrating the complainant, the accused intentionally causes the complainant to sexually penetrate either the accused, him/herself, a third person or an animal (s39(1)(a)).
  58. The definition of sexual penetration includes the following:
    1. A person sexually penetrates themselves if they introduce a part of their own body or an object into their anus or vagina, or having so introduced such body part or object, continues to keep it there (s37D(3)).
    2. A person sexually penetrates an animal if they introduce a part of their own body or an object into the animal’s anus or vagina, or their penis into the animal’s mouth, or having so introduced such body part or object, continues to keep it there (s37D(4)).
  59. While the accused must intentionally cause the penetration, compulsion is not a separate element. Compulsion is shown through the elements of lack of consent by the person doing the penetration, and lack of a reasonable belief by the accused in that consent, as in the offence of rape (s39(1)).
  60. The accused will have committed the offence of compelled rape in relation to the person s/he causes to do the penetrating, not the person penetrated. Where the accused causes the complainant to penetrate a third person, the accused will have committed rape simpliciter of that third person, assuming the other elements are met (s37D(2)).
  61. For the purposes of compelled rape, it is the consent of the complainant, that is the person doing the sexual penetration, and the accused’s belief in that person’s consent, that is relevant.

    Offences committed before 1 July 2015

  62. The compelled rape offences, like rape, involve sexual penetration without consent. For offences committed before 1 July 2015, the physical roles of offender and victim are reversed, and the compelled rape offence adds the additional concept of “compulsion” (see Crimes Act 1958 s38(3)).
  63. Compulsion is defined in s38(4) as follows:

    (4) For the purposes of subsection (3), a person compels another person (the victim) to engage in a sexual act if the person compels the victim (by force or otherwise) to engage in that act—

    (a) without the victim's consent; and

    (b) while—

    (i) being aware that the victim is not consenting or might not be consenting; or

    (ii) not giving any thought to whether the victim is not consenting or might not be consenting.

  64. This definition is mirrored for the separate offence of compelling sexual penetration contrary to s38A (Crimes Act 1958 s38A(3)).

 

Last updated: 1 July 2017

In This Section

7.3.2.1 - Charge: Rape (From 1/07/15)

7.3.2.2 - Checklist: Rape (From 1/07/15)

7.3.2.3 - Charge: Rape (1/1/08 - 30/06/15)

7.3.2.4 - Checklist: Rape (1/1/08 – 30/06/15)

7.3.2.5 - Charge: Rape (Pre-1/1/08)

7.3.2.6 - Checklist: Rape (Pre-1/1/08)

7.3.2.7 - Charge: Compelled Rape (1/1/08 - 30/6/15)

7.3.2.8 - Checklist: Rape - Compulsion to Penetrate the Accused (1/1/08 - 30/6/15)

7.3.2.9 - Checklist: Rape - Compulsion to Penetrate Another Person (1/1/08 - 30/6/15)

7.3.2.10 - Charge: Compelled Rape (1/12/06 - 31/12/07)

7.3.2.11 - Charge: Compelled Rape (Pre-1/12/06)

7.3.2.12 - Checklist: Rape - Compulsion to Penetrate the Accused (Pre-1/1/08)

7.3.2.13 - Checklist: Rape - Compulsion to Penetrate Another Person (Pre-1/1/08)

See Also

7.3 - Sexual Offences

7.3.1 - Consent and Consent-related Fault Element

7.3.3 - Rape and Aggravated Rape (Pre-1/1/92)

7.3.4 - Assault with Intent to Rape (Pre-1/7/15)

7.3.5 - Sexual Assault (From 1/7/15)

7.3.6 - Indecent Assault (1/1/92 - 30/6/15)

7.3.7 - Indecent assault (Pre-1/1/92)

7.3.8 - Incest (From 1/7/17)

7.3.9 - Incest (Pre-1/7/17)

7.3.10 - Sexual penetration of a child under 12 (From 1/7/17)

7.3.11 - Sexual penetration of a child under 16 (From 1/7/17)

7.3.12 - Sexual penetration of a child under 16 (1/1/92 – 30/6/17)

7.3.13 - Sexual Penetration of a 16 or 17 Year Old Child (From 1/7/17)

7.3.14 - Sexual penetration of a 16 or 17 year old child (1/1/92 – 30/6/17)

7.3.15 - Sexual Assault of a child under 16 (From 1/7/17)

7.3.16 - Indecent Act with a Child under 16 (1/1/92 – 30/6/17)

7.3.17 - Sexual Assault of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.18 - Indecent Act with a 16 or 17 year old Child (1/12/06 – 30/6/17)

7.3.19 - Indecent act with a 16 year old child (5/8/91 – 30/11/06)

7.3.20 - Sexual Activity in the presence of a child under 16 (From 1/7/17)

7.3.21 - Sexual Activity in the presence of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.22 - Persistent sexual abuse of a child (From 1/7/17)

7.3.23 - Sexual Offences Against Children (Pre-1/1/92)

7.3.24 - Production of Child Abuse Material

7.3.25 - Distributing Child Abuse Material

7.3.26 - Production of Child Pornography

7.3.27 - Possessing Child Abuse Material

7.3.28 - Possession of Child Pornography