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Offences – Rape

s349 Criminal Code 1899 provides it is an offence to have sexual intercourse with someone without their consent.

What the prosecution must prove.

The prosecution must prove reasonable doubt that:

1. The defendant either:

a. Had carnal knowledge of the complainant.

b. Penetrated the vulva, vagina or anus of the other person to any extent with a thing or part of the defendant’s body that is not a penis.

c. Penetrated the complainant’s mouth to an extent with a penis.

2. Without the consent of the complainant.

What it means.

Carnal knowledge includes vaginal and anal intercourse. Penetration to any degree is sufficient.

The criminal law has extended the concept of Rape to include any nature of penetration of the vagina or anus and oral sex.

“Consent” is defined to mean consent freely and voluntarily given by a person with the cognitive capacity to give consent. Consent is not free and voluntary if it is obtained by:

• force;

• threats or intimidation;

• fear of bodily harm;

• exercise of authority;

• false and fraudulent representations about the nature or purpose of the act;

• pretending to be the complainant’s sexual partner.

If the evidence suggests a defendant honestly and reasonably, but mistakenly, believed there was consent the prosecution must prove beyond reasonable doubt that was not the case.

The available defences.

Mistake of Fact as to consent

The usual penalties.

The maximum penalty for the criminal offence of Rape is life imprisonment.

The maximum penalty for an offence of Attempted Rape, or an Assault with Intent to Rape is 14 years imprisonment.

The maximum penalty is a poor numerical indicator of sentences usually imposed.  It plays a role in defining the relative seriousness of an offence. The maximum penalty is hardly eve

The offence will inevitable attract a sentence of actual imprisonment on conviction.

Factors that affect the appropriate penalty include the nature of the penetration, any associated violence, and the age or other circumstances of the victim.

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