Elements of rape (What is Rape?)

Under section 38, person (A) commits rape if:

1. A intentionally sexually penetrates another person (B);

2. B does not consent to the penetration; and

3. A does not reasonably believe that B consents to the act.

Sexual penetration

The prosecution must prove beyond reasonable doubt that the accused intentionally sexually penetrated the complainant in the way alleged (s 38(1)(a)). The prosecution must also prove that the act of sexual penetration by the accused was committed consciously, voluntarily, and deliberately.

July 2015 to June 2017

Between 1 July 2015 and 30 June 2017, ‘sexual penetration’ was defined by s 37D of the Crimes Act 1958. This definition is different from the definition in s 35, which continues to apply to all other sexual offences and to rape committed before 1 July 2015.

July 2017 Onwards

For offences committed on or after 1 July 2017, ‘sexual penetration’ is defined by s 35A and applies to all offences in Subdivisions (8A) to (8FA). It should be noted that this new definition was geared towards achieving more convictions.

Current Definition of Sexual Penetration

Under s 35A, a person sexually penetrates another person if they introduce any part of their body or an object into that person’s vagina or anus. A person also sexually penetrates another if they introduce their penis into that person’s mouth.

Current Definition of Sexual Penetration

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

Note that sexual or digital penetration occurring without consent also amounts to rape. See also ‘What is sexual penetration?‘ for more.

Non-consent

The second element that the prosecution must prove beyond a reasonable doubt is that the complainant did not consent to the penetration.

• Definition of Consent

Consent is defined in section 36 of the Crimes Act 1958 as ‘free agreement’ (until 30 July 2023) and ‘free and voluntary agreement’ (from 30 July 2023 onwards). This provision also describes non-exclusive circumstances in which a person ‘does not freely agree to an act’ (s 34C between 1 July 2015 and 30 June 2017, s 36 from 1 July 2017 to 29 July 2023 and s 36AA from 30 July 2023 onwards).

Since 30 July 2023, the new s 36AA contains the list of non-consent circumstances. However, many of the former non-consent circumstances were retained.

An important part of amendments to the non-consent circumstances commenced on 30 July 2023 criminalise ‘stealthing‘ by including it in the list specified in section s36AA(1), in which a person does not consent to sexual activity. The effect of this law is that a person who sexually penetrates another while stealthing is committing rape.

See ‘Consent from 30 July 2023‘ for a detailed description of the current law of consent and the circumstances in which a person does not consent to sexual activity.

Reasonable belief

The third element the prosecution must prove is that the accused ‘did not hold a reasonable belief’ that the complainant was consenting (s 38(1)(c)).

Satisfying the Element

This element will be satisfied if the prosecution proves one of the following mental states beyond a reasonable doubt:

• The accused believed that the complainant was not consenting;
• The accused did not believe the complainant was consenting, including circumstances in which the accused gave no thought as to whether the complainant was consenting;
• The accused believed the complainant was consenting, but the belief was not reasonable in the circumstances.

This element is discussed in more detail in ‘The Meaning of Consent’ and ‘Reasonable Belief in Consent from 30 July 23’.

Historical Context

The reasonableness of an accused’s alleged belief in consent (including any steps taken to ascertain consent) was previously only relevant in determining whether the accused genuinely held such a belief (s 37AA(b) as in force before 1 July 2015).

For sexual offences alleged to have been committed on or after 1 July 2015, the previous subjective fault element of ‘awareness of non-consent’ was replaced with the partially objective fault element, ‘no reasonable belief in consent’.

Legislative Changes – July 2017

On 1 July 2017, the provisions relating to reasonable belief in consent were repealed and replaced. Under s 37G(1) (before 1 July 2017) and s 36A(1) (from 1 July 2017 to 29 July 2023):

• Whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances.
• Circumstances include any steps the accused took to find out whether the other person was consenting (s 37G(2) (before 1 July 2017), s 36A(2) (from 1 July 2017 onwards).

July 2023 Changes

For offences committed from 30 July 2023 onwards, the news 36A states:

• A’s belief that B consents to an act is not reasonable if, within a reasonable time before or at the time the act takes place, A does not say or do anything to find out whether B consents to the act (s 36A(2)).

Previously, the steps taken to determine whether the other person consented were relevant to whether a belief is reasonable; however, the new provision means that a belief in consent is not reasonable unless the accused said or did something to determine whether the other person consented.

Rape committed between 1 January 2008 and 1 July 2015

Between 1 January 2008 and 1 July 2015, section 38 defined four distinct forms of rape:

• Intentionally sexually penetrating another person without their consent, while being aware that the person is not or might not be consenting, or while not giving any thought to whether the person is not or might not be consenting (s38(2)(a));
• After sexual penetration, failing to withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting (s38(2)(b));
• Compelling a person to sexually penetrate the offender or another person (s38(3)(a)); and
• Compelling a person who has sexually penetrated the offender or another person not to withdraw (s38(3)(b)).

Note that s 38(3) compelled rape is wholly different to s 38A compelled sexual penetration (another offence existing at the time). Section 38(3) applies where the complainant is compelled to sexually penetrate the offender or another person other than the victim. However, s 38A involves the compulsion of the victim to sexually penetrate themself, or compelled bestiality.

Consent at this time was defined in s 37 as ‘free agreement’.

The maximum penalty for the offence of rape

Rape is an indictable offence carrying a maximum penalty of 25 years’ imprisonment or a fine of 3,000 penalty units (s38 of the Crimes Act 1958).

Rape offences committed from 1 February 2018 are subject to a standard sentence of 10 years under s 5B of the Sentencing Act 1991. The standard sentence for this offence is ten years.

As rape is a Category 1 offence (defined under s 3), if the offence was committed on or after 20 March 2017, the court must impose a custodial sentence (without a CCO) pursuant to s 5(2G) of the Sentencing Act 1991. See ‘Category 1 offences‘ in our Mandatory Sentencing article for more.

If you have been charged with rape, contact an experienced sexual offence lawyer as soon as possible.

Cases highlighting the range of sentences for rape

Wholly suspended sentence

The offender was the victim’s husband and primary carer. He persisted with sex on several occasions despite her lack of consent. She asked the police for help but not to charge him. The offender made full admissions at the police interview. At sentencing, the victim and her family asked the court not to imprison the offender and allow him to continue caring for her (Unpublished sentencing remarks provided to the Sentencing Advisory Council).

5-year prison sentence

The offender was the Uber driver who picked up an 18-year-old victim who had been drinking with friends before organising an Uber home. The offender pulled over in the car, entered the backseat and digitally raped the victim. He denied the offending when interviewed by police but later pleaded guilty. His visa was revoked, and he spent nearly two years in immigration detention (DPP v Barbar [2021] VCC 180).

12-year prison sentence

On release from prison for family violence, the offender went to his former partner’s house and raped her vaginally and anally. He did not plead guilty, was considered at high risk of reoffending and had previous convictions for rape. His total effective sentence, taking into account multiple offences heard together, was 21 years in prison (DPP v Bolton [2018] VCC 385).

What to do next: Contacting Dribbin & Brown Criminal Lawyers

Rape and related offences are serious crimes carrying heavy penalties, including imprisonment. To ensure you are well represented in your matter, contact one of our experienced criminal lawyers today.

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

Our criminal offence lawyers can assist if you have been charged with a rape offence under interstate legislation, if your court appearance is listed in Victoria or if you live in Victoria and wish to have your court matter heard closer to home.

Seeking legal advice? Contact Dribbin & Brown’s CBD office to connect with an experienced assault lawyer in Melbourne.

Contact Us

Questions to consider

Do you have a defence? A defence to sexual offences may be established if the complainant (or alleged victim) consented to the sexual act. See ‘The defence of consent for sexual offences‘ for more.

If you plead guilty to sexual assault charges, how can you mitigate your sentence?

Where will my case be heard?

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

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.