s38 Rape

Have you been charged with Rape?

The charge of Rape is one of the most serious and legally complex offences a person can be charged with and therefore your case must be handled with precision and adequate preparation.

There are a number of issues to consider if you have been charged with rape under section 38 of the Crimes Act 1958.

• Can the prosecution prove the elements of the offence?
• Did you sexually penetrate a person while that person was not consenting, while not believing that the person was consenting?
• Did you have a reasonable belief in consent at the time?
• Is your offence a recent allegation? Or does it relate to an act that is alleged to have occurred historically? If it is the latter the law will need to be applied retrospectively as it was at the time the offence is alleged to have been committed.

If your offence is alleged to have been committed between 1 January 2008 and 1 July 2015,  the law was different at that time and therefore the elements of the offence were also different.

Section 38 of the Crimes Act as it applied at that time sets out the elements that must be proven in order for this charge to be made out.

It should also be noted that people who plead guilty to this offence are facing an immediate custodial sentence.

Rape under section 38 between 1 July 2008 and 1 July 2015 the prosecution must prove the following elements:

1. That you sexually penetrated another person;
2. Intentionally;
3. Without that person’s consent;
4. While being aware that the person was not consenting or might not have been consenting or while not giving any thought to whether the person was not consenting or might not have been consenting.

Consent at this time was defined by section 37 at ‘free agreement’ (Please note that the definition of consent is now found at s36 of the Crimes Act 1958).

Rape under s38 from 1 July 2017 onward, the prosecution must prove the following elements: 

The offence

Section 38 of the Crimes Act 1958.

The Prosecution must prove:

1. That the accused intentionally sexually penetrates another person and;
2. That person does not consent to the penetration; and
3. The accused do not reasonably believe that B consents to the penetration.

The definition of ‘sexual penetration’ was amended on 1 July 2017 and is now defined by section 35A of the Crimes Act.

It should be noted the change in the legislation was geared towards achieving more convictions. 

There is also an exception to this offence which can be found in section 48A of the Crimes Act and relates to a penetration for medical, hygienic, veterinary, agricultural or scientific purposes. Please note this is not a defence and will only apply in a specific set of circumstances.

The maximum penalty

Level 2 imprisonment – 25 years maximum

Please also note that this offence is subject to the standard sentencing regime under section 5B of the Sentencing Act Vic. A standard sentence for this offence is 10 years.

An offence under section 38 of the Crimes act is also considered a category 1 offence as defined under section 3 of the sentencing act consequently section 5(2G) of the Sentencing Act applies, meaning a goal sentence, not including a CCO must be imposed. 

Where will my case be heard?

Your matter will be heard in the County Court or Supreme Court of Victoria.

Questions to consider

Do you have a defence?

If you are pleading guilty, what can you do to mitigate sentence?

What to do next?

Arrange a time to see an experienced sex offence criminal lawyer urgently.

Given the seriousness and complexity of this charge preparation is critical to achieving a favourable outcome. It is essential that there is time to make all the necessary preparations, so don’t leave it until the last minute.

If you have been charged with Rape make an appointment to see one of our experienced criminal lawyers today.

The current legislation

Section 38 Rape

(1) A person (A) commits an offence if—

(a) A intentionally sexually penetrates another person (B); and

(b) B does not consent to the penetration; and

(c) A does not reasonably believe that B consents to the penetration.

(2) A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).

(3) The standard sentence for an offence against subsection (1) is 10 years.