Elements Prosecution Must Prove

1.  Accused intentionally sexually penetrate another person; and
2. The other person does not consent to the penetration; and
3. They did not reasonably believe the other person consented to the penetration;

What is penetration?

Penetration can involve the insertion of any part of their body, or an object into the vagina or anus of a person, or of a penis into the complainant’s mouth.

What is intention?

The sexual penetration must be intentional. An unlikely situation where penetration occurred unintentionally, such as while asleep, would not be considered rape.

What is consent?

Consensual sexual activity is not rape. However, the law views consent to require absolute free agreement. S34C of the Crimes Act 1958 outlines circumstances which demonstrate that a person has not consented to an act.

They include:

Submission to the act due to fear of force, or fear of harm of any type, or being unlawfully detained
- The person being asleep or unconscious
- The person being so affected by alcohol as to not be capable of consenting to the act.
- The person being incapable of understanding sexual nature of the act.
- The person being mistaken about the sexual nature of the act;
- The person is mistaken about the identity of any other person involved in the act;
- The person mistakenly believes that the act is for medical or hygienic purposes;
- The person does not say or do anything to indicate consent to the act;
- The person later withdraws consent to the act taking place or continuing.

Not withstanding s34C, it was held in Holman v The Queen [1970] WAR 2 CCA that "A woman's consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threats, fear or fraud) it is not rape"

What is meant by reasonable belief?

If the accused has a reasonable belief that the complainant was consenting, then rape can't be proved.  However, if the accused has a reasonable belief that the complainant was consenting to the sexual act, but also had knowledge of one of the factors outlined in s34C to be true, then this may support the view that the accused didn't have a reasonable belief that the complainant was consenting to the act.

In R v Zilm (2006) 14 VR 11, Callaway JA said "The belief of an accused person that the complainant was consenting to a sexual act does not have to be reasonable as a matter of law. The crown must prove that, in fact, the accused was aware that the complaint was not consenting or might not be consenting. The unreasonableness of his belief does not mean he is guilty. The direction required by s37(1)(c) of the crimes Act 1958, where it is relevant to the facts in issue, makes it more important than ever that the jury understand the true significance of the question of whether the belief of the accused person was reasonable"


Rape carries a maximum period of 25 years imprisonment. The sentence usually varies depending on a number of factors that include the existence of factors of mitigation along with aggravating features and the prior history of the accused. Nonetheless, it is common to see sentences of five to six years imprisonment in Victoria.


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