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

Click here to obtain a Word version of this document for adaptation.

 

When to use this charge

This charge can be used for rapes alleged to have been committed between 1/3/1981 and 31/12/1991.

There are some minor differences between offences committed before 5/8/1991, and offences committed or on or after that date. See the Rape and Aggravated Rape (Pre-1/1/92) for information concerning these differences.

This charge can be adapted where the accused is charged with rape with aggravating circumstances. See Rape and Aggravated Rape for guidance.

Alternative charges

For other rape directions see the charges:

Rape (1/1/08 - 30/06/15)

Rape (Pre-1/1/08)

Rape (Pre 1/3/81)

 

The Elements

I must now direct you about the crime of rape. To prove this crime, the prosecution must prove the following four elements beyond reasonable doubt.

One - the accused sexually penetrated the complainant in the way alleged.[1]

Two - the accused did this intentionally.

Three - the complainant did not consent to the sexual penetration.

Four - the accused was aware either that the complainant was not consenting, or that the complainant might not be consenting.

I will now explain each of these elements in more detail. [2]

Sexual Penetration

The first element relates to what the accused is alleged to have done. The prosecution must prove beyond reasonable doubt that the accused sexually penetrated the complainant in the way alleged. [If in issue, add: The prosecution must also prove that the accused did this act consciously, voluntarily, and deliberately.] [3]

Act of sexual penetration

The law defines the term sexual penetration to include a number of different acts. In this case the prosecution must prove that NOA introduced [identify item or body part, e.g. "his penis"] to any extent into NOC’s [vagina/anus/mouth]. [4]

[If relevant add:

In this case [insert relevant evidence or competing arguments about proof of sexual penetration].

The act was conscious, voluntary and deliberate

If the evidence or arguments have placed voluntariness in issue, add the shaded section

As I have directed you, the prosecution must prove that the accused sexually penetrated the complainant consciously, voluntarily, and deliberately.

This requirement is in issue here because [describe the evidence or arguments that place voluntariness in issue].

You must find NOA not guilty unless the prosecution can satisfy you that [describe the finding that proves voluntariness in the circumstance of the case, e.g."NOA was conscious and not asleep and dreaming at the time of the penetration"].

Intention

The second element that the prosecution must prove beyond reasonable doubt is that the sexual penetration was intentional. [5]

If intention is not in issue, add the shaded section

This element is not in issue here. [If appropriate, explain further, e.g.

 

 

Consent

The third element that the prosecution must prove is that the complainant was not consenting at the time to the sexual penetration.

The law says that consent means free agreement. So the prosecution must prove that NOC did not freely agree to being sexually penetrated by NOA [at the time in question].

The law identifies a number of circumstances where the complainant is deemed not to freely agree, or consent, to sexual penetration. These circumstances include [insert relevant section(s) from the following and apply to the evidence:

  1. the person submits because of force or the fear of force to that person or someone else;
  2. the person submits because of the fear of harm of any type to that person or someone else;
  3. the person submits because she or he is unlawfully detained;
  4. the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing;
  5. the person is incapable of understanding the sexual nature of the act;
  6. the person is mistaken about the sexual nature of the act or the identity of the person;
  7. the person mistakenly believes that the act is for medical or hygienic purposes.]

If you are satisfied beyond reasonable doubt that one of these circumstances existed in relation to NOC, you must find that s/he was not consenting. However, you do not need to consider this question only by reference to these particular circumstances. If you are satisfied beyond reasonable doubt on any basis arising from the evidence that the complainant was not consenting, then this element will be proven.

[If there is evidence the complainant did not indicate agreement, add the shaded section if relevant]

The law also says that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person’s free agreement.

This means that if you accept that NOC did not say or do anything to indicate free agreement to the sexual penetration at the time of that act, you may find on that basis that s/he did not consent to that act.

[Where evidence is given about absence of physical resistance, lack of physical injury or past consensual sex, add the following shaded section]

The law also says that you are not to regard the complainant as having freely agreed just because:

However, these are relevant factors for you to consider. You must consider the action or lack of action of NOC, together with all the surrounding circumstances, in order to decide whether the prosecution has proven beyond reasonable doubt that NOC did not consent.

In determining whether NOC did not freely agree to be sexually penetrated, you must consider all of the relevant evidence, including what s/he is alleged to have said and done, or not said and done at the time of the alleged penetration, as well as the evidence s/he gave in court about his/her state of mind at that time.

In this case, [insert evidence and competing arguments relevant to proof that the complainant was not consenting].

It is important that you remember that it is not for the accused to prove to you that the complainant consented. For this third element to be satisfied, the prosecution must prove to you, beyond reasonable doubt, that the complainant did not consent.

State of Mind of the Accused

The fourth element relates to the accused’s state of mind about the complainant’s consent. The prosecution must prove beyond reasonable doubt that at the time of sexual penetration the accused was either:

If the prosecution fails to prove to you beyond reasonable doubt that NOA had one of these states of mind about the complainant’s consent, then you must find this element not proven, and you must find NOA not guilty of this offence. [6]

Belief in consent

[If evidence is led or an assertion is made that the accused believed the complainant was consenting, add a suitably modified direction from Charge: Belief in consent]

Application of law to evidence

[If not previously done, apply the law to the relevant evidence here.]

Summary

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

One — that NOA sexually penetrated NOC; and

Two — that NOA intended to sexually penetrate NOC; and

Three — that NOC did not consent to the sexual penetration; and

Four — that at the time of the sexual penetration NOA was either:

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

 

Notes

[1] This charge will need to be adapted if the prosecution case relies on a failure to withdraw. See the Rape and Aggravated Rape for information on when the law may allow such a case to be put to the jury.

[2] If an element is not in issue it should not be explained in full. Instead, the element should be described briefly, followed by an instruction such as: "It is [admitted / not disputed] that NOA [describe conduct, state of mind or circumstances that meets the element], and you should have no difficulty finding this element proven."

[3] Described in the instructions within this charge as the "voluntariness" requirement.

[4] Penetration by a part of the body other than the penis only falls within the definition of "sexual penetration" for offences committed between 5 August 1991 and 31 December 1991.

[5] Because rape is an offence of basic intent (the intent to commit the physical act of penetrating the complainant) proof of the intent will rarely be separated from proof of the act, and "intention" will rarely be an independent issue. Instead, mental state issues related to the act of penetration should generally be addressed by voluntariness directions. This will be the case if the issue is negation of intent by involuntariness, unconsciousness or accident. If different "intention" issues arise, this charge should be adapted.

[6] If this element is not in issue, it will generally be sufficient to state that conclusion at this point and elaborate no further.

 

Last updated: 3 December 2012

See Also

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

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

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