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7.3.3.3 - Checklist: Rape (Pre-1/1/92)

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Four elements the prosecution must prove beyond reasonable doubt:

1. The accused sexually penetrated the complainant; and

2. The accused sexually penetrated the complainant intentionally; and

3. The complainant did not consent to the sexual penetration; and

4. The accused was aware either that the complainant was not consenting or that the complainant might not be consenting.

 

Sexual penetration

1. Did the accused sexually penetrate the complainant in the way alleged?

If yes, then go to 2

If no, then the accused is not guilty of rape

Intention

2. Did the accused intend to sexually penetrate the complainant?

If yes, then go to 3

If no, then the accused is not guilty of rape

Lack of Consent

3. Did the sexual penetration occur without the complainant’s consent?

If yes, then go to 4.1

If no, then the accused is not guilty of rape

Accused’s Awareness of Lack of Consent

4.1 Was that accused aware that the complainant was not consenting to the sexual penetration?

If yes, then the accused is guilty of rape (as long as you also answered yes to questions 1, 2 and 3)

If no, then go to 4.2

4.2 Was the accused aware that the complainant might not be consenting to the sexual penetration?

If yes, then the accused is guilty of rape (as long as you also answered yes to questions 1, 2 and 3)

If no, then the accused is not guilty of rape

Last updated: 30 May 2014

See Also

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

7.3.3.1 - Charge: Rape (1/3/81 - 31/12/91)

7.3.3.2 - Charge: Rape (Pre-1/3/81)