Have you been charged with Rape by compelling sexual penetration?
This is a very serious and legally complex matter; therefore, your case must be handled with precision and careful preparation.
There are a number of issues to consider if you have been charged with Rape by compelling sexual penetration under section 39 of the Crimes Act.
Can the prosecution prove the elements of the offence?
- Have you caused the sexual penetration of another person in any way?
- Have you caused someone to sexually penetrate you, or sexually penetrate another person or an animal in circumstances where the other person does not consent to the sexual penetration and you do not reasonably believe that the other person consents to the sexual penetration?
Are there other matters to be considered?
- 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.
The law in relation to an offence under section 39 has been subject to a number of amendments over the years. It is important that the correct law is applied to your case. See below for more information.
Section 39 of the Crimes Act 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 by compelling sexual penetration before 1 December 2006 prosecution must prove the following elements:
NB: In this case ‘Rape’ means means forcing a male person to have sex with the accused or another person.
- The complainant sexually penetrated the accused or another person with his penis.
- The accused compelled the complainant to sexually penetrate him/her/or the other person
- The accused intended to compel the complainant to sexually penetrate him/her/or the other person]
- The complainant did not consent to the sexual penetration.
- At the time of the sexual penetration the accused was either:
- aware that the complainant was not consenting; or
- aware that the complainant might not be consenting.
Sexual penetration means the insertion of the complainant’s penis into the anus, vagina or mouth of the accused or another person.
Compel means making someone to something by force or otherwise. Here the accused must have made the complainant sexually penetrate him, her or another person.
The law at this time defined consent as ‘free agreement’. There are a number of legislative circumstances which will not amount to free agreement. These include force or fear of harm, being asleep or unconscious and incapable of free agreement, being incapable of understanding the sexual nature of the act or mistakenly believing the sexual act is for medical or hygienic purposes.
Rape by compelling sexual penetration from 1 December 2006 to 31 December 2007
The stayed the section stayed the same but definition of vagina changed to include surgical contructed vagina’s making the charge gender neutral. That is sexual penetration means introduction of the complainant’s penis, body part or object into the vagina, anus or mouth of the accused or another person. Vagina will include a surgically constructed vagina.
Rape by compelling sexual penetration from 1 January 2008 to 30 December 2015 and beyond, the prosecution must prove:
- The elements remained the same but for the last fault element being
- was not giving any thought to whether the complainant was not or might not be consenting.
Sexual penetration means the introduction of the complainant’s penis, body part or object object into the vagina, anus or mouth of the accused or another person.
NB: The definition of ‘sexual penetration’ was amended on 1 July 2017 and is now defined by section 35A of the Crimes Act, so offences that occur after 1 July 2017 must apply the new definition of what is sexual penetration.
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 39 of the Crimes act is also considered a category 1 offence as defined under section 3 of the sentencing act. As such section 52G of the Sentencing Act applies.
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 39 – Rape by compelling sexual penetration
- A person (A) commits an offence if –
- A intentionally causes another person (B)—
(i) to sexually penetrate A; or
(ii) to sexually penetrate themselves; or
(iii) to sexually penetrate another person (C) or an animal; or
(iv) to be sexually penetrated by C or by an animal; and
(b) B does not consent to the sexual penetration; and
(c) A does not reasonably believe that B consents to the sexual penetration.
Liable Penalty: Imprisonment (25 years maximum).
