Have you been charged with Compelled Rape?
The nuances of this type of charge are important; therefore, your case must be handled only by someone with experience in defending complex sexual offence cases. People who plead guilty to or are found guilty of, this type of offence face an immediate custodial sentence.
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 1958.
- 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?
- 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 your matter relates to an offence alleged to have occurred historically, the law is applied retrospectively as it was when the offence is alleged to have been committed. For a larger discussion on all aspects of the charge of rape and to find the best rape lawyers, follow the link.
Elements of Rape by compelling sexual penetration
Section 39 of the Crimes Act 1959 (Vic) sets out the elements that must be proven beyond reasonable doubt for this charge to be made out.
The law in relation to rape by compelling sexual penetration has been subject to a number of amendments over the years. It is important that the correct law is applied to your case.
Rape by compelling sexual penetration committed on or after 1 July 2017
Rape by compelling sexual penetration is a separate offence (from rape) contained in s39.
The elements of compelled rape under s 39(1) are as follows:
(a) A person (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.
In contrast to the offence as it stood before 1 July 2015, the complainant for this offence is either the person who sexually penetrates another person or an animal, or is sexually penetrated by another person or an animal (per s 39(1)(a)(iv)).
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?’
Compelled rape committed between 1 July 2015 and 30 June 2017
Similarly to the above, ‘rape by compelling sexual penetration’ is a separate offence contained in s39.
The elements of compelled rape are as follows (s 39):
(1) An accused person commits compelled rape if s/he:
(a) intentionally causes another person to sexually penetrate —
(i) the accused; or
(ii) themselves, or
(iii) a third person, or
(iv) an animal; and
(b) the person doing the penetrating does not consent to doing the act of sexual penetration; and
(c) the accused does not reasonably believe that that person consents to doing that act.
The elements of compelled rape are similar to those of rape, except rather than the accused intentionally sexually penetrating the complainant, the accused intentionally causes the complainant to sexually penetrate either the accused, the complainant themself, a third person or an animal (s 39(1)(a)).
The elements of the offence are similar to those of rape, except rather than the accused intentionally sexually penetrating the complainant, the accused intentionally causes the complainant to sexually penetrate either the accused, the complainant themself, a third person or an animal (per s 39(1)(a)).
For the purposes of this offence, it is the consent of the complainant (the person doing the sexual penetration) and the accused’s belief in that person’s consent, that is relevant.
If the accused causes the complainant to penetrate a third person, the accused will have committed rape of that third person if the other elements are met (per s 37D(2)).
See here for more on the definition of sexual penetration.
Compelled rape committed before 1 July 2015
For offences committed before 1 July 2015, the physical roles of offender and victim are reversed, and the offence has the additional concept of ‘compulsion’ (see s 38(3)).
Compulsion is defined in s38(4) as:
(4) For the purposes of subsection (3), a person compels another person (the victim) to engage in a sexual act if the person compels the victim (by force or otherwise) to engage in that act—
(a) without the victim’s consent; and
(b) while—
(i) being aware that the victim is not consenting or might not be consenting; or
(ii) not giving any thought to whether the victim is not consenting or might not be consenting.
This definition is mirrored in the separate offence of ‘compelling sexual penetration’ under s38A.
The maximum penalty
The maximum penalty for rape by compelling sexual penetration is level 2 imprisonment (25 years maximum).
This offence is subject to the standard sentencing regime under section 5B of the Sentencing Act 1991. A standard sentence for this offence is 10 years.
As rape by compelling sexual penetration 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.
What to do if charged
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.
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. Seem ‘The defence of consent for sexual offences‘ for more.
If you are pleading guilty, what can you do to 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 s39 Crime Act 1958
- A person (A) commits an offence if—
- A intentionally causes another person (B)—
- to sexually penetrate A; or
- to sexually penetrate themselves; or
- to sexually penetrate another person (C) or an animal; or
- to be sexually penetrated by C or by an animal; and
- B does not consent to the sexual penetration; and
- A does not reasonably believe that B consents to the sexual penetration.
- A intentionally causes another person (B)—
- A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).
