Have you been Charged with Rape or Rape by Compelled Penetration?
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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):
- ‘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:
- 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?
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Offence to Perform Female Genital Mutilation
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Intention of Having Prohibited Female Genital Mutilation Performed
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Sexual Activity with the Corpse of Human Being
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Rape or Rape by Compelled Penetration
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Sexual Assault
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Sexual Assault by Compelling Sexual Touching
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Assault with Intent to Commit a Sexual Offence
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Threat to Commit a Sexual Offence
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Procuring Sexual Act by Threat or Procuring Sexual Act by Fraud
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Administration of an Intoxicating Substance for a Sexual Purpose
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Failing to Comply with Sex Offender Reporting
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Abduction or Detention for a Sexual Purpose
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Furnishing False or Misleading Information
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Indecent Act with a Child Under the Age of 16
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Sexual Activity Directed at Another Person
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Sexual Penetration of a Child Under the Age of 12
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Sexual Penetration of a Child Aged 16 or 17 Under Care, Supervision, or Authority
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Sexual Assault of a Child Aged 16 or 17 Under Care, Supervision, or Authority
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Sexual Activity in the Presence of a Child Aged 16 or 17 Under Care, Supervision or Authority
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Causing a child aged 16 or 17 under care, supervision, or authority to be present during sexual activity
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Persistent Sexual Abuse of a Child Under the Age of 16
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Encouraging a Child Aged 16 or 17 Under Care, Supervision or Authority to Engage in, or Be Involved in, Sexual Activity
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Grooming for Sexual Conduct with a Child under the Age of 16
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Loitering Near Schools Etc by a Sexual Offender
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Failure by a Person in Authority to Protect a Child from a Sexual Offence
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Abduction or Detention of a Child Under the Age of 16 for a Sexual Purpose
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Causing or Allowing a Sexual Performance Involving a Child
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Inciting or Offering a Sexual Performance Involving a Child
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Facilitating a Sexual Offence Against a Child
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Sexual Penetration of a Child or Lineal Descendent
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Sexual Penetration of a Stepchild
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Sexual Penetration of a Parent, Lineal Ancestor or Stepparent
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Sexual Penetration of a Sibling or Half-Sibling
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Sexual Offences Against People with Impaired Mental Functioning (Repealed 2016)
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Child in the Production of Child Abuse Material
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Distributing Child Abuse Material
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Administering a Website Used to Deal With Child Abuse Material
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Accessing Child Abuse Material
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Assisting a Person to Avoid Apprehension
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Sexual Assault of a Person with Cognitive Impairment or Mental Illness
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Using Force, Threat etc. to Cause Another Person to Provide Commercial Sexual Services
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Causing Another Person to Provide Commercial Sexual Services in Circumstances Involving Sexual Servitude
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Aggravated Sexual Servitude
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Deceptive Recruiting for Commercial Sexual Services
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Bestiality
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Child Stealing
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Bigamy
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Abortion Performed by Unqualified Person
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Concealing the Birth of a Child
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.
For more information on specific charges regarding sexual assault, see our other publications.
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