For offences committed on or after 1 July 2015, the mental element for rape is that the accused “does not reasonably believe” that the person consented to the penetration. This can be achieved by showing that:
- The accused knew or believed that the complainant was not consenting;
- The accused did not believe that the complainant was consenting;
- Any belief in consent which the accused may have held would not have been reasonable in the circumstances.
For offences committed prior to 1 July 2015, the prosecution must prove that the accused intentionally sexually penetrated the victim while being aware that the victim was not consenting or might not be consenting. For offences committed on or after 1 December 2008, the prosecution may alternatively prove that the accused had given no thought to whether the person was not or might not be consenting.
Section 37AA required the judge to direct the jury about the accused’s belief that the complainant was consenting. It is erroneous to assume that a belief that the complainant was consenting is incompatible with an awareness that the complainant might not be consenting. Instead, the jury must consider the nature and extent of any belief the accused had when deciding whether the prosecution has proved the mental element.
See R v Getachew [2012] HCA 10; NT v R [2012] VSCA 213, [16]
Elements of offence
Under the contemporary definition of rape, a person (A) commits rape if:
- A intentionally sexually penetrates another person (B);
- B does not consent to the penetration; and
- A does not reasonably believe that B consents to the penetration.
For offences committed before 1 July 2015, the most commonly prosecuted form of rape was that found in section 38(2)(a) of the Crimes Act 1958. The elements of this form of offence are
- the accused intentionally penetrated the victim
- the penetration took place without the victim’s consent
- when the penetration took place the accused either:
- was aware that the victim was not consenting or might not be consenting; or
- did not give any thought to whether the victim was not consenting or might not be consenting.
The former section 38 also created forms of rape that consisted of:
- failing to withdraw after the accused becomes aware that the victim was not consenting or might not be consenting,
- compelling the victim to sexually penetrate the accused or a third party, and
- compelling the victim to continue sexually penetrating the accused or a third party.
It is important that a judge directs a jury on the elements of the offence of rape using the language of the section. Careful directions should be given as to each of the elements in issue.
Physical act
The accused must have intentionally committed an act of sexual penetration.
An accused may also be guilty of the offence where he or she causes another person to sexually penetrate the victim.
See Crimes Act 1958 s37D(2); R v Hewitt [1997] 1 VR 301.
Source: judicialcollege