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7.3.4.3 - Charge: Assault with Intent to Rape (Pre-1/1/08)

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[This charge can be used for assault with intent to rape trials where the offence is alleged to have been committed before 1/1/08. For other cases see the charge Charge: Assault with Intent to Rape (1/1/08 – 30/6/15)]

I must now direct you about the crime of assault with intent to rape is a crime. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:

One - the accused [applied force to the body [1] of the complainant/threatened to apply force to the body of the complainant].

Two - the accused intended to sexually penetrate the complainant, either without their consent or whether or not they were consenting.

Three - the accused’s actions resulted in the complainant being [insert one or more of the following as relevant: injured, caused pain, caused discomfort, caused damage, insulted or deprived of liberty].

I will now explain each of these elements in detail.

Application of Force

The first element relates to what the accused did. The accused must have [applied force to the body of the complainant/threatened to apply force to the body of the complainant].

It does not matter [how the force was applied/what type of force was threatened]. It could involve any type of physical contact, [if relevant, add: such as kicking or punching, pushing or hitting with an object].

[If relevant, add: The application of force could also involve an application of heat, light or electric current to the body of the complainant, or the application of any substance, including liquids or gases.]

It also does not matter how much force was [applied/threatened]. Even a slight touch is enough for this element to be satisfied.

In this case, the prosecution argued that NOA [applied force/threatened to apply force] to NOC when [insert evidence]. In response, the defence argued [insert evidence].

Intention to Rape

The second element that the prosecution must prove relates to the accused person’s state of mind. The accused must have had an intention to rape the complainant.

In order to prove that the accused intended to rape the complainant, the prosecution must prove that at the time the accused [applied force/threatened to apply force] to the complainant’s body, [he/she] had an intention to sexually penetrate the complainant either without [his/her] consent or regardless of whether or not [he/she] was consenting.

Under the law, sexual penetration is defined as the introduction of a person’s penis, body part or object into another person’s vagina or anus. It also includes putting a penis into someone’s mouth. So for this second element to be satisfied, the prosecution must prove that NOA intended to commit one of these acts, without NOC’s consent or regardless of whether or not [he/she] was consenting.

In this case, the prosecution argued [insert evidence]. The defence responded [insert evidence].

Result of the Accused’s Acts

The third element relates to the results of the accused’s actions. The prosecution must prove that the accused’s actions [insert one or more of the following as relevant: injured the complainant, inflicted pain, caused discomfort, caused damage, caused insult or deprived the complainant of liberty].

In this case, the prosecution argued [insert evidence]. In response, the defence argued [insert evidence].

Summary

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

One – that NOA [applied force/threatened to apply force] to NOC’s body; and

Two – that NOA [applied force/threatened to apply force] NOC with the intention to sexually penetrate [him/her] either without [his/her] consent, or whether or not [he/she] was consenting; and

Three – that NOA’s actions resulted in NOC being [insert one or more of the following as relevant: injured, caused pain, caused discomfort, damaged, insulted or deprived of liberty].

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of assault with intent to rape.

 

Notes

[1] Section 31(2) of the Crimes Act 1958 provides that the application of force can also be to clothes or equipment worn by the complainant. In cases involving such an application of force, the wording of the charge will need to be modified accordingly.

Last updated: 3 December 2012

See Also

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

7.3.4.1 - Charge: Assault with Intent to Rape (1/1/08-30/6/15)

7.3.4.2 - Checklist: Assault with Intent to Rape (1/1/08 – 30/6/15)

7.3.4.4 - Checklist: Assault with Intent to Rape (Pre-1/1/08)