The offence of assault with intent to rape is set out under s40 of the Crimes Act 1958. The section states that a person must not assault or threaten to assault another person with intent to commit rape. The section specifies that the relevant definition of "assault" is that contained in s31(2) of the Crimes Act 1958.
The section was inserted in 1993 and applies to offences alleged to have been committed on or after 15 August 1993 and before 1 July 2015.
On 1 July 2015, the offence was repealed and replaced by two new offences - Assault with intent to commit a sexual offence (Crimes Act 1958 s42) and Threat to commit a sexual offence (Crimes Act 1958 s43).
Assault with intent to rape differs from attempted rape in that it can involve an act which is more remote from the commission of rape. The elements of the offence will be satisfied, as long as the assault was committed with the relevant intent. Attempted rape, by comparison, requires the act to be so proximate to the vital element of penetration that nothing remains to be done but to commit the crime (R v Worland  VR 607).
The criminality of the offence of assault with intent to rape comes from the assault and the intent to commit the crime of rape. The intent must be with respect to a real and not an imaginary crime (R v Cogley  VR 798).
Unless consent is in issue, evidence of the complainant’s belief about the intent of the accused will generally be irrelevant and inadmissible (R v Cahill  4 VR 1).
Although ordinarily "assault" under s31(2) requires proof that the accused intended to inflict (or was reckless as to the infliction of) bodily injury, pain, discomfort, damage, insult or deprivation of liberty, it is not necessary to prove these matters as a separate element in relation to assault with intent to rape. This is because a finding that the accused intended to rape the complainant would necessarily involve a finding that the accused had the intention to inflict one of these detriments (R v Saffoury 25/8/1998 Vic CA).
For further information on the statutory definition of assault see Statutory Assault.