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

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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 on or after 1/1/2008 and before 1/7/2015. For cases before 1/1/2008, see Charge: Assault with Intent to Rape (Pre-1/1/08)]

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

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

Two - the accused acted with the intention to rape the complainant.

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 relates to the accused person’s state of mind. The prosecution must prove that the accused acted with the intention to rape the complainant. An intention to rape has two parts.

First, 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.

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 part of the second element to be satisfied, the prosecution must prove that NOA intended to commit one of these acts upon NOC.

Secondly, the prosecution must prove that at the time of the assault, NOA either:

In this case there is no suggestion that the accused believed that the complainant was consenting to any sexual penetration by the accused, so you should have no difficulty finding that aspect of the offence proven [2].

[Insert evidence and arguments relevant to this element]

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] to NOC with the intention to rape [him/her]; 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.

[2] If consent or the accused’s awareness of the complainant’s state of consent is in issue this charge will need to be adapted to include directions in the terms required by Crimes Act 1958 s37, s37AAA and s37AA. See further Charge: Rape (1/1/08 – 30/06/15) and Consent and Awareness of Non-Cosent.

Last updated: 22 June 2016

See Also

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

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

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

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