The offence of rape has changed significantly over time:
Prior to 1 March 1981, rape was governed by the common law;
In 1981 the definition of rape was expanded by legislation. The new definition applied to acts committed between 1 March 1981 and 4 August 1991;
In 1991 the definition of rape was modified again. The revised definition applied to acts committed between 5 August 1991 and 31 December 1991;
From 1 January 1992, rape became a statutory offence.
The offence of rape with aggravating circumstances existed between 1 March 1981 and 31 December 1991.
This topic examines the directions a judge must give when:
A person is charged with rape or aggravated rape on or after 1 January 2010; and
The offence is alleged to have been committed before 1 January 1992.
Use Rape for offences alleged to have been committed on or after 1 January 1992.
Elements of Rape
Prior to 1992, a person committed rape if he or she:
Sexually penetrated another person;
Without that person’s consent;
While being aware that the person was not consenting or might not be consenting.
Judges should take care not to run these elements together when directing the jury. In particular, judges should not instruct the jury that the fourth element relates to "the guilty mind of the accused", or 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" (R v Soldo  VSCA 136; R v Zilm (2006) 14 VR 11;  VSCA 72 per Callaway JA).
The meaning of "sexual penetration" for the purpose of this offence has been significantly modified over time.
Offences Committed Before 1 March 1981
The common law definition of "sexual penetration" applies to offences committed before 1 March 1981.
At common law, "sexual penetration" only consisted of penetration of a vagina by a penis. Other forms of sexual penetration were considered to be incidents of indecent assault, rather than rape (see R v Daly  VR 257; R v Hornbuckle  VLR 281).
This element was met when there was any penetration of the complainant’s labia by the penis (R v Lines (1844) 1 Car & K 393; Randall v R (1991) 55 SASR 447).
From 5 August 1991, the Crimes Act 1958 defined vagina to include a surgically constructed vagina. It is unclear whether the common law recognised penetration of an artificially constructed sexual organ as sexual penetration (see R v Cogley  VR 799; R v Harris & McGuiness (1988) 17 NSWLR 158).
This element was met by penetration "to any extent". Consequently:
The penetration only needed to be slight or fleeting; and
It was not necessary for the prosecution to prove that semen was emitted (see Randall v R (1991) 55 SASR 447; Anderson v R  VSCA 108; R v Pryor  QCA 341).
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  VSCA 108).
It is unclear whether this element will be met where:
The complainant stops consenting, and the accused fails to cease the penetration; or
The accused becomes aware that the complainant is not consenting, but fails to cease the penetration (see Salmon v R  SASR 76; Saraswati v R (1991) 172 CLR 1 per Dawson J; R v Murphy (1988) 52 SASR 186; R v Mayberry  Qd R 211; Richardson v R  Tas SR 178; Kaitamaki v R  AC 147).
Offences Committed 1 March 1981 - 4 August 1991
From 1 March 1981 to 4 August 1991, the definition of rape was expanded to also include:
The introduction (to any extent) of a person’s penis into the anus or mouth of another person of either sex; and
The introduction (to any extent) of an object that is not part of the body, and which was manipulated by a person of either sex, into the vagina or anus of another person of either sex (Crimes Act 1958 s2A).
This definition removed the gendered nature of the offence, which previously could only be committed by a male against a female. Under this definition:
Both males and females can be the victim of the offence; and
Both males and females can commit the offence, by using an object that is not part of the body.
It is unclear whether the expanded definition uses the medical meaning of "vagina" (being the membranous passage or channel leading from the uterus to the vulva), or whether it should be interpreted in a manner consistent with the common law understanding of "sexual penetration" (which includes penetration of the external genitalia) (compare R v Lines (1844) 1 Car & K 393 and Holland v R (1993) 117 ALR 193. See also Randall v R (1991) 55 SASR 447 and R v AG (1997) 129 ACTR 1).  In cases where this is relevant, judges will need to engage in a process of statutory construction and will need to consider principles concerning the interpretation of ambiguous penal statutes and the interference with fundamental rights (see Coco v R (1994) 179 CLR 427; Bropho v State of Western Australia (1990) 171 CLR 1; Beckwith v R (1976) 135 CLR 569).
As was the case at common law, under the expanded definition:
The penetration only needed to be slight or fleeting (penetration "to any extent") (Randall v R (1991) 55 SASR 447; Anderson v R  VSCA 108);
The prosecution did not need to prove the emission of semen (Crimes Act 1958 s2A);
It is unclear whether this element is met where the accused failed to cease sexual penetration upon withdrawal of consent, or upon becoming aware that the complainant was not consenting (see Salmon v R  SASR 76; Saraswati v R (1991) 172 CLR 1 per Dawson J; R v Murphy (1988) 52 SASR 186; R v Mayberry  Qd R 211; Richardson v R  Tas SR 178; Kaitamaki v R  AC 147).
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).
Offences Committed 5 August 1991 – 31 December 1991
From 5 August 1991 to 31 December 1991, the definition of rape was further expanded, to include:
The introduction of a part of the body other than the penis into the vagina or anus of another person; and
Failing to cease sexual penetration on becoming aware that the other person was not consenting, or upon realising that the other person might not be consenting (Crimes Act 1958 s36).
Directing the Jury About the Meaning of "Vagina"
The common law definition of vagina (and possibly the statutory definitions: see above) includes "the external genitalia". It has been held that this phrase is not within ordinary usage and needs more explanation (R v AJS (2005) 12 VR 563; Anderson v R  VSCA 108; R v MG (2010) 29 VR 305).
Consequently, where penetration is in issue, the judge should explain to the jury in precise and simple terms, what would constitute penetration of the vagina, and summarise the evidence that relates to that issue (R v AJS (2005) 12 VR 563. See also Randall v R (1991) 55 SASR 447; Anderson v R  VSCA 108; R v MG (2010) 29 VR 305).
Identifying the Penetrative Act
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).
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).
Lack of Consent
The third element the prosecution must prove is that the complainant did not consent to sexual penetration (R v Saragozza  VR 187).
While the statutory definition of consent in Crimes Act 1958 s36 was introduced on 1 January 1992 by the Crimes (Rape) Act 1991, the transitional provisions for that Act state that it applies to proceedings that occur after the commencement of the legislation, regardless of when the alleged offence was committed (Crimes (Rape) Act 1991 s9).
Similarly, the amendments to the statutory directions on consent and awareness of the absence of consent introduced by the Crimes (Rape) Act 2007 also operate retrospectively (Crimes Act 1958 s609).
While there is an argument that s36 is incapable of applying to rape before prior to 1 January 1991, as the section is limited to offences under Subdivisions (8A) to (8D), the better view appears to be that, in light of the transitional provisions of the Crimes (Rape) Act 1991, the section does operate retrospectively and judges must direct juries on the contemporary meaning of consent, even for historical offences.
The fourth element the prosecution must prove is that the accused was aware that the complainant was not consenting to the sexual penetration, or realised that the complainant might not be consenting to the sexual penetration (R v Flannery & Prendergast  VR 31; R v Hornbuckle  VLR 281; R v Daly  VR 257; R v Morgan  AC 182; Banditt v R (2005) 224 CLR 262; R v Saragozza  VR 187).
The prosecution does not need to prove that the accused realised that the complainant probably was not consenting. It is sufficient to prove that the accused realised the complainant might not be consenting (R v Hemsley (1988) 36 A Crim R 334. See also R v Morgan  AC 182; R v Daly  VR 257).
The reasonableness of an accused’s asserted belief in consent is relevant only to the question of whether the belief was held. The law does not treat an unreasonable belief as non-existent or irrelevant (R v Saragozza  VR 187; R v Morgan  AC 182).
The existence of a belief in consent (whether reasonable or unreasonable) is necessarily inconsistent with an awareness that the complainant is not consenting or might not be consenting (R v Flannery & Prendergast  VR 31; R v Saragozza  VR 187; R v Morgan  AC 182).
Some cases have suggested that this element will be satisfied, both at common law and under subsequent statutory schemes, where a person did not give any thought to whether the complainant consented (see R v Morgan  AC 182; R v Tolmie (1995) 37 NSWLR 660).
However, the Crimes Amendment (Rape) Act 2007 was enacted on the basis that an offence would not be committed where the accused did not advert to the issue. The transitional provisions limit the operation of the statutory fault element of non-advertence to offences committed after the commencement of the amending legislation (see Attorney-General Rob Hulls, Second Reading Speech, Crimes Amendment (Rape) Bill 2007. See also Neal v R (2011) 32 VR 454).
The charges in the Charge Book reflect the latter view (i.e., that this element cannot be proven by establishing non-advertence). If this position is considered to be incorrect, the charges will need to be modified accordingly.
Rape with Aggravating Circumstances
The offence of rape with aggravating circumstances existed between 1 March 1981 and 31 December 1991.
The accused can be found guilty of this offence in two ways:
The jury can convict him or her of rape with aggravating circumstances, if they are satisfied that all of the elements of that offence have been met; or
The judge can direct that the accused is deemed to have been found guilty of rape with aggravating circumstances, if he or she is satisfied that the accused has previously been convicted of a specified offence.
"Rape with aggravating circumstances" is a separate offence from "rape". If the prosecution charges the accused with the aggravated offence, the judge must direct the jury about its elements (subject to the power of the judge to direct a verdict of rape with aggravating circumstances: see below) (Crimes Act 1958 s45).
The offence consists of all the elements of rape, along with an additional element that the offence was committed in one of the following aggravating circumstances:
During the commission of the offence, or immediately before or after it, and at or in the vicinity of the place where the offence was committed, the offender inflicted serious personal violence on the victim or another person;
The offender had an offensive weapon with him or her;
During the commission of the offence, or immediately before or after it, the offender did an act which was likely to seriously and substantially degrade or humiliate the victim; or
During the commission of the offence, or immediately before or after it, the offender was aided or abetted by another person who was present at, or in the vicinity of, the place where the offence was committed (Crimes Act 1958 ss45, 46).
The term "offensive weapon" means an offensive weapon, firearm, imitation firearm, explosive or imitation explosive, as defined in s77 of the Act (Crimes Act 1958 ss45, 46).
See Aggravated Burglary for further information concerning the meaning of "offensive weapon", as well as the requirement that the accused had the weapon "with" him or her.
Where the accused is found guilty of rape, the judge may direct that he or she is deemed to have been found guilty of rape with aggravating circumstances if the judge is satisfied that the accused has previously been convicted of one of the following offences:
Rape (with or without aggravating circumstances);
Rape with mitigating circumstances; 
Attempted rape (with or without aggravating circumstances);
Assault with intent to rape (with or without aggravating circumstances);
Indecent assault (with or without aggravating circumstances) (Crimes Act 1958 s46).
The power to direct a deemed verdict of rape with aggravating circumstances applies even if the accused pleaded guilty. It is not limited to a finding of guilt following a trial (R v Symons  VR 297; R v Snabel, VSC, 2/12/1982).
Rape with Mitigating Circumstances
Prior to 1 March 1981, s44(2) of the Crimes Act 1958 allowed the jury on a charge of rape to return a verdict of rape with mitigating circumstances, if satisfied that the accused committed the offence, but that there were circumstances connected with the commission of the offence which mitigate the offence.
It is unclear whether the repeal of this provision by the Crimes (Sexual Offences) Act 1980 removed the availability of the verdict of rape with mitigating circumstances. Where the parties raise this issue, the judge will need to consider whether this verdict is available for offences committed before 1 March 1981 and what assistance the judge should give the jury on the meaning of "mitigating circumstances". However, it may be difficult to reconcile the existence of this provision with the operation of Crimes Act 1958 ss37A and 37B. 
This Charge Book does not provide a model direction on leaving a verdict of rape with mitigating circumstances.
Other Relevant Statutory Provisions
Crimes Act 1958 s61 (Delayed Complaint)
Section 61 of the Crimes Act 1958 contains a number of jury warnings that are relevant to trials for sexual offences. This section applies to trials "for an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) or under any corresponding previous enactment…".
As rape was an offence against s45 of the Crimes Act 1958 between 1 March 1981 and 31 December 1991, s61 applies to offences committed between those dates. See the documents in Delayed Complaint for further information.
It is unclear whether s61 also applies to offences committed before 1 March 1981, as there was no "corresponding previous enactment" at that time (rape was purely a common law offence).
If s61 does not apply to offences committed before 1 March 1981, then in relevant cases the judge will need to direct the jury about the effect of delayed complaint in accordance with the common law. See Effect of Delayed Complaint on Credit.
Evidence Act 2008
Judges will also need to consider the operation of the Evidence Act 2008, which applies to all hearings commenced on or after 1 January 2010 (Evidence Act 2008 Schedule 2).
For information on the effect of the Evidence Act 2008, see especially:
Section 62 of the Crimes Act 1958 abolished two presumptions thought to exist at common law:
The presumption of impotence of a male under the age of 14; and
The presumption of consent to sexual intercourse within a marriage.
This provision only applies to offences committed on or after 1 March 1981 (Crimes (Sexual Offences) Act 1980 s2).
However, recent cases have questioned whether the common law actually recognised a presumption of consent within marriage. Depending on the resolution of this issue, the abolition of that presumption by s62(2) may be redundant (see R v L (1991) 174 CLR 379; R v P, GA (2010) 109 SASR 1 (special leave to appeal granted)).
 If the legislation uses the medical definition, cases in which only the external genitalia have been penetrated will need to be charged as indecent assault instead.
 Prior to 1 March 1981, s44(2) of the Crimes Act 1958 allowed the jury on a charge of rape to return a verdict of rape with mitigating circumstances, if satisfied that the accused committed the offence in circumstances of mitigation.
 By Crimes Act 1958 s606A(1), the guiding principles provisions in ss37A and 37B apply to any trial commenced after 1 December 2006, regardless of when the offence was allegedly committed.