Rape Charges in Victoria (Section 38, Crimes Act)
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What does it mean to be charged with Rape?
Rape (Section 38 of the Crimes Act 1958 (“CA”))
Being charged with rape under Section 38 of the CA entails that a person (referred to as A) is accused of intentionally sexually penetrating another person (referred to as B) without consent.
Rape by Compelling Sexual Penetration (Section 39 of the CA)
Being charged with rape by compelled penetration means that a person (A) is accused of intentionally causing another person (B) to engage in sexual penetration, either of themselves, A, or another person (C), without consent.
What must the prosecution prove for Rape:
Key Elements of Rape:
- ‘A’ must have intentionally penetrated ‘B’ sexually.
- ‘B’ must not have consented to the penetration.
- ‘A’ must not have reasonably believed that ‘B’ consented to the penetration.
What must the prosecution prove for Rape by Compelled Penetration:
Key Elements of Rape by Compelled Penetration:
- ‘A’ must have intentionally caused ‘B’ to engage in sexual penetration in one of the following ways:
- ‘B’ penetrates ‘A’.
- ‘B’ penetrates themselves.
- ‘B’ penetrates another person (C) or an animal.
- ‘B’ is penetrated by ‘C’ or by an animal.
- ‘B’ must not have consented to the sexual penetration.
- ‘A’ must not have reasonably believed that ‘B’ consented to the penetration.
What is Sexual Penetration? (Section 35A of the CA)
Sexual penetration is defined in terms of the introduction of a body part or object into specific body cavities.
The key aspects are as follows:
- Sexual Penetration by Another Person (A) into Another Person (B):
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‘A’ sexually penetrates ‘B’ if:
- Vaginal Penetration: ‘A’ introduces, to any extent, a part of their body (e.g., fingers, hand) or an object (e.g., a sex toy) into ‘B’s’ vagina.
- Anal Penetration: ‘A’ introduces, to any extent, a part of their body or an object into ‘B’s’ anus.
- Oral Penetration: ‘A’ introduces, to any extent, their penis into ‘B’s’ mouth.
- Continuation of Penetration: If ‘A’ has already introduced a part of their body or an object into ‘B’s’ vagina or anus, and continues to keep it there, this constitutes penetration.
- Self-Penetration:
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A person sexually penetrates themselves if they:
- Vaginal Self-Penetration: Introduce, to any extent, a part of their body or an object into their own vagina.
- Anal Self-Penetration: Introduce, to any extent, a part of their body or an object into their own anus.
- Continuation of Self-Penetration: If they have introduced a part of their body or an object into their own vagina or anus and continue to keep it there.
- Sexual Penetration Involving Animals:
- A person (A) sexually penetrates an animal if A engages in conduct with the animal that would qualify as sexual penetration were the animal treated as a person (B).
- Conversely, a person (B) is sexually penetrated by an animal if ‘B’ engaged in conduct with the animal that would qualify as sexual penetration were the animal treated as a person (A).
- In this context, the terms “vagina” or “anus” also refer to any similar anatomical part of the animal.
Penalties for Rape:
- A person found guilty of this offence can face level 2 imprisonment, with a maximum penalty of 25 years.
- The standard sentence for this offence is set at 10 years.
Penalties for Rape by Compelling Penetration:
- A person found guilty of this offence can also face level 2 imprisonment, with a maximum penalty of 25 years.
Where will my case be heard?
This is a serious charge which will be heard in the County Court or Supreme Court of Victoria.
Factors and Defences to consider:
- Did you receive consent from the victim?
- Did your sexual act constitute sexual penetration?
- What is your relationship to the victim?
- Was your intention to penetrate or be penetrated by the victim?
- Were you or the victim drinking before, during or after the time of the offence?
- Do you have any mental health or cognitive impairment conditions?
- Do you have any previous convictions of a similar nature to this offence?
- What were the surrounding circumstances of this offence?
Common questions about rape charges
Under section 35A of the Crimes Act 1958, sexual penetration means introducing a part of the body or an object, to any extent, into another person’s vagina or anus, or introducing a penis, to any extent, into their mouth. Keeping it there after introducing it also counts. Vagina includes the external genitalia, and a part of the body includes a surgically altered or constructed part. The same section separately covers penetrating yourself and conduct involving an animal.
Under section 38 of the Crimes Act 1958, rape is intentionally sexually penetrating another person who does not consent, when you do not reasonably believe they consent. The prosecution must prove each part. A separate offence, rape by compelling sexual penetration, applies the same consent test when you intentionally cause someone to sexually penetrate you, themselves, another person or an animal, or to be penetrated by another person or an animal. Neither applies to a procedure carried out in good faith for medical or hygienic purposes.
Yes. Rape carries a maximum of 25 years in prison under section 38 of the Crimes Act 1958. For an offence by an adult on or after 20 March 2017, the court must impose a custodial order, such as prison. For offences committed by an adult from 1 February 2018, the judge must also take into account the standard sentence of 10 years. That is the sentence for an offence that, taking into account only the objective factors affecting its relative seriousness, is in the middle of the range of seriousness.
Consent means free and voluntary agreement, under section 36 of the Crimes Act 1958. Not resisting is not consent, and nor is agreeing to a different act, or to the same act at another time or place or with someone else. There is no consent where a person says or does nothing to show consent, is too affected by alcohol or drugs to consent, submits because of force or harm or fear of either, or withdraws consent, among other situations. These rules apply to offences from 30 July 2023.
It depends on the circumstances, under section 36A of the Crimes Act 1958, which applies to offences from 30 July 2023. A belief is not reasonable if, within a reasonable time before or at the time of the act, you did not say or do anything to find out whether the other person consented. The Act has further rules for cognitive impairment or mental illness, and for self-induced intoxication.
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Sexual assault and rape
- Sexual Assault
- Sexual Assault by Compelling Sexual Touching
- Assault with Intent to Commit a Sexual Offence
- Threat to Commit a Sexual Offence
- Procuring Sexual Act by Threat or Procuring Sexual Act by Fraud
- Administration of an Intoxicating Substance for a Sexual Purpose
- Abduction or Detention for a Sexual Purpose
- Sexual Activity Directed at Another Person
Offences against children
- Sexual Penetration of a Child Under the Age of 12
- Indecent Act with a Child Under the Age of 16
- Persistent Sexual Abuse of a Child Under the Age of 16
- Grooming for Sexual Conduct with a Child under the Age of 16
- Abduction or Detention of a Child Under the Age of 16 for a Sexual Purpose
- Causing or Allowing a Sexual Performance Involving a Child
- Inciting or Offering a Sexual Performance Involving a Child
- Facilitating a Sexual Offence Against a Child
- Failure by a Person in Authority to Protect a Child from a Sexual Offence
Children aged 16 or 17 under care, supervision or authority
Child abuse material
Family members
Cognitive impairment or mental illness
Sexual servitude and commercial sexual services
Sex offender registration and related
What happens next?
If you have been charged with rape or rape by compelling penetration? your next step is to schedule an initial consultation with an expert at MK Law, where you’ll discuss your case in detail, allowing the lawyers to assess your situation and provide preliminary advice. They will then review the information, possibly request additional evidence or documentation, and tailor a defence strategy specific to your circumstances. MK Law will keep you updated throughout the process, offering legal advice and preparing you for any court appearances. If your case proceeds to court, MK Law will represent you, advocating for the best possible outcome.
To start, simply reach out by phone on 1800 130 120 or through their website to arrange the consultation.
Our sexual assault lawyers in Melbourne act in rape and all other sexual offence charges.
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