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7.3.2.1 - Charge: Rape (From 1/07/15)

Click here for a Word version of this document for adaptation

When to use this charge

This charge can be used for cases involving s38 rape alleged to have been committed on or after 1/7/2015

For rape cases where the offence is alleged to have been committed before 1/7/2015 see the following charges as relevant:

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

Rape (Pre-1/1/08)

Warning! This charge contains many optional directions which may be requested by a party. Judges must take care to ensure that requested directions are appropriate to the circumstances of the case.

The elements

I must now direct you about the crime of rape. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt.

One - the accused intentionally sexually penetrated the complainant.

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

Three- the accused did not reasonably believe that the complainant consented to the sexual penetration.

I will now explain each of these elements in more detail.[1]

Intentional 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 intentionally 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.][2]

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].[3]

[If relevant add:

[In vaginal penetration cases, add the following shaded section.]

The law says that the vagina includes the external genitalia – that is the outer or external lips of the vagina. So the prosecution can prove this element by proving that NOA introduced [identify body part or object] to any extent between the outer lips of NOC’s vagina.

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 intention or voluntariness in issue, add the shaded section.]

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 introduced his finger into NOC’s vagina deliberately, and not accidentally” or “NOA was conscious and not asleep and dreaming at the time of the penetration”].

Lack of consent

The second element that the prosecution must prove is that the sexual penetration happened without the complainant’s consent.

Consent is a state of mind. 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.[4]

[Where a party requests a direction about the meaning of consent, add one or more of the following shaded paragraphs]

The law says that a person can consent to an act only if they are capable of consenting, and free to choose whether or not to engage in or to allow the act.

The law says that where a person has given their consent to an act, they may withdraw that consent before the act happens or at any time while it is happening.

[Where a party requests a direction about the circumstances in which a person is taken not to have consented, add the following shaded section]

In some circumstances the law says that the complainant did not freely agree, or consent, to sexual penetration. These circumstances include [insert relevant section(s) from the following and apply to the evidence:

a) the person submits to the act because of force or the fear of force, whether to that person or someone else;

b) the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;

c) the person submits to the act because the person is unlawfully detained;

d) the person is asleep or unconscious;

e) the person is so affected by alcohol or another drug as to be incapable of consenting to the act;

f) the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;

g) the person is incapable of understanding the sexual nature of the act;

h) the person is mistaken about the sexual nature of the act;

i) the person is mistaken about the identity of any other person involved in the act;

j) the person mistakenly believes that the act is for medical or hygienic purposes;

k) if the act involves an animal, the person mistakenly believes that the act is for veterinary, agricultural or scientific research purposes;

l) the person does not say or do anything to indicate consent to the act;

m) having initially given consent to the act, the person later withdraws consent to the act taking place or continuing]

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.

 

[Where a party requests a direction about the lack of physical injury, add the following shaded section.]

When you are assessing the evidence, it is important to know that experience shows that there are many different circumstances in which a person does not consent to sexual penetration. Experience also shows that just because a person is not physically injured, subjected to violence or threatened with physical injury or violence does not mean that they consented.

[When a party requests a direction about the lack of protest or physical resistance, add the following shaded section.]

When you are assessing the evidence, it is important to know that experience shows that people react in different ways to a non-consensual sexual act. There is no typical, proper or normal response. Experience shows that just because a person did not protest or resist does not mean that they consented. For example, a person might freeze and not say or do anything, even though they are not consenting.

[When a party requests a direction on the relevance of past consensual sex, add the following shaded section.]

When you are assessing the evidence, it is important to know that experience shows just because a person has consented to sexual activity with a person on one occasion does not mean that they consented to sexual activity with that person on another occasion.[5]

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 second element to be satisfied, the prosecution must prove to you, beyond reasonable doubt, that the complainant did not consent.

No reasonable belief in consent

The third 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 did not reasonably believe that the complainant was consenting.[6]

This third element will be met in any of the following circumstances [insert relevant section(s) from the following and apply to the evidence]:

The prosecution only needs to prove one of these three states of mind. If the prosecution does not prove to you beyond reasonable doubt that NOA had any of these states of mind about the complainant’s consent, then you must not find this element proven, and you must not find NOA guilty of this offence.

In this case, [evidence has been led / the defence argue] that at the time of the sexual penetration NOA reasonably believed that NOC was consenting to the sexual act. [Briefly summarise relevant prosecution and defence evidence and arguments].

[If a party requests a direction on the relevance of knowledge of a deemed non-consent circumstance under s34C(2), add the shaded section.]

If you find that [describe relevant Crimes Act 1958 section 34C(2) circumstance(s)], you must consider whether the accused knew or believed that [describe relevant Crimes Act 1958 section 34C(2) circumstance(s)]. If you find that NOA knew or believed that [describe relevant Crimes Act 1958 section 34C(2) circumstance(s)], that is enough to show that NOA did not reasonably believe that NOA was consenting and you may find this element proved.

A belief will be reasonable if there are reasonable grounds for a person in the position of the accused to hold that belief. You must also consider all the circumstances when deciding whether a belief in consent was reasonable.

[Refer to competing prosecution and defence evidence and arguments on reasonable belief in consent]

In looking at the evidence, you should consider whether the accused took any steps to find out whether the complainant was consenting or might not be consenting and, if so, the nature of those steps. In this case [identify any evidence and/or competing arguments about the steps taken by the accused].

[If a party requests a direction about a belief in consent based on a general assumption about circumstances of consent – which must be identified by the prosecution- add the following shaded section]

The law says that a belief in consent based only or stereotypes or preconceptions about the circumstances in which people consent to a sexual act is not a reasonable belief. It does not matter whether those stereotypes are based on any particular culture, religion or other influences.

If a belief in consent is based on a combination of matters including such a general assumption then, to the extent it is based on those general assumptions, it is not a reasonable belief.

In this case, the prosecution say that [identify relevant stereotype] is such a stereotype. If you consider that it is a stereotype, then it will not provide a basis for any belief in consent to be a reasonable belief. [If necessary, refer to relevant prosecution and defence arguments on this issue].

You must decide the case on the evidence, and not on assumptions or stereotypes about the circumstances in which people consent to a sexual act.

[If a party requests a direction about the relevance of community expectations to whether a belief is reasonable, add the following shaded section.]

When you are considering whether a belief in consent is unreasonable, you must consider what the community would reasonably expect of the accused in the circumstances in forming a reasonable belief in consent.

[If a party requests a direction about the accused’s personal attributes, characteristics or circumstances, add the following shaded section.]

In deciding whether the prosecution has proved that the accused did not have a reasonable belief in consent you may take into account any personal attributes or characteristics of the accused, or the circumstances of the accused. In this case, this would include [Identify relevant attributes, characteristics and circumstances].[7]

[If a party requests a direction on the relevance of self-induced intoxication, add the following shaded section.]

If you find that NOA was intoxicated at the relevant time, you must not take this into account when assessing whether he/she reasonably believed that NOC was consenting. The law requires you to consider whether his/her belief in NOC’s consent would have been reasonable to a person who was not intoxicated at the relevant time.[8]

Medical or hygienic purposes

[In cases involving alleged penetration in the context of a medical procedure or hygienic purposes add the following shaded section.]

According to the law, the accused has not committed the offence of rape if the sexual penetration was done in good faith for medical or hygienic purposes. In this case, the accused submits [refer to relevant evidence]. It is for the prosecution to prove to you, beyond reasonable doubt, that the insertion of [name of object or body part] by NOA into NOC’s [anus/vagina], was not done in good faith for [medical/hygienic] purposes.

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 intentionally sexually penetrated NOC in the way alleged; and

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

Three — that at the time of the sexual penetration NOA did not reasonably believe that NOC was consenting.

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] 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 proved."

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

[3] If sexual penetration by failure to withdraw, or by causing another person or an animal to sexually penetrate the complainant, is in issue the charge will need to be modified accordingly.

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

[5] This direction may be modified to include reference to different forms of sexual activity, or sexual activity with different people, if appropriate in the circumstances of the case. See Jury Directions Act 2015 s46(3)(e).

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

[7] When a party seeks this direction Jury Directions Act 2015 s47(4) specifies good reasons for not giving this direction. See Rape for guidance.

[8] This direction will need to be modified if the intoxication is not self-induced. See Jury Directions Act 2015 s47(3)(b)(ii) and Charge: Statutory Intoxication (Self-induced) for guidance.

Last updated: 11 July 2018

See Also

7.3.2 - Rape (From 1/1/92)

7.3.2.2 - Checklist: Rape (From 1/07/15)

7.3.2.3 - Charge: Rape (1/1/08 - 30/06/15)

7.3.2.4 - Checklist: Rape (1/1/08 – 30/06/15)

7.3.2.5 - Charge: Rape (Pre-1/1/08)

7.3.2.6 - Checklist: Rape (Pre-1/1/08)

7.3.2.7 - Charge: Compelled Rape (1/1/08 - 30/6/15)

7.3.2.8 - Checklist: Rape - Compulsion to Penetrate the Accused (1/1/08 - 30/6/15)

7.3.2.9 - Checklist: Rape - Compulsion to Penetrate Another Person (1/1/08 - 30/6/15)

7.3.2.10 - Charge: Compelled Rape (1/12/06 - 31/12/07)

7.3.2.11 - Charge: Compelled Rape (Pre-1/12/06)

7.3.2.12 - Checklist: Rape - Compulsion to Penetrate the Accused (Pre-1/1/08)

7.3.2.13 - Checklist: Rape - Compulsion to Penetrate Another Person (Pre-1/1/08)