Have you been charged with Rape?

This is a very serious offence carrying with it the possibility of lengthy custodial sentences – up to 25 years in prison. It is vital you seek advice from an experienced criminal lawyer as soon as possible.

The issue of consent is critical to all Rape cases. It is crucial to determine in the circumstances whether valid consent was obtained. Similarly, it must be determined whether sexual penetration occurred.

Further questions you and your lawyer will need to consider are: Were you aware that the defendant was not, or may not have been, consenting? Did you withdraw at any point after penetration, on becoming aware that the defendant was not consenting? Or did you incite someone else to commit Rape?

We understand that this level of detail can be embarrassing and uncomfortable to talk about. However, the answers to these questions will be vital to determining whether or not you have a defence, and our experienced lawyers will always strive to put you at ease.

Please read below for more information in relation to this charge.

The offence

Section 38 of the Crimes Act 1958

The prosecution must prove:

1. The defendant sexually penetrated another person

2. The defendant did so without the consent of that other person

3. The act of sexual penetration was intentional

4. At the time of penetration the defendant was aware that the alleged victim

   1. Was not consenting; or

   2. Might not be consenting; or

5. After penetration the defendant became aware that the alleged victim was not consenting or might not be consenting but did not withdraw on becoming so aware.

The maximum penalty

Level 2 imprisonment being a maximum of 25 years.

Where will my case be heard?

Rape cases can only 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 minimise your sentence?

What to do next?

Arrange a time to consult with a specialist criminal lawyer. As thorough preparation is critical to the success of any matter, make sure that you allow plenty of time, so your lawyer can prepare the strongest possible case.

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

The legislation

38. Rape

(1) A person must not commit rape.

Penalty: Level 2 imprisonment (25 years maximum).

(2) A person commits rape if—

1. he or she intentionally sexually penetrates another person without that person’s consent while being aware that the person is not consenting or might not be consenting; or

2. after sexual penetration he or she does not withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting.

(3) A person (the offender) also commits rape if he or she compels a male person

1. to sexually penetrate the offender or another person with his penis, irrespective of whether the person being sexually penetrated consents to the act; or

2. who has sexually penetrated the offender or another person with his penis, not to withdraw his penis from the offender or that other person, irrespective of whether the person who has been sexually penetrated consents to the act.

(4) For the purposes of sub-section (3), a person compels a male person (the victim) to engage in a sexual act if the person compels the victim (by force or otherwise) to engage in that act—

1. without the victim’s consent; and

(b)  while being aware that the victim is not consenting or might not be consenting.