RAPE OFFENCES ARE REGULATED BY THE CRIMES ACT 1958

In Victoria, rape offences under the criminal law are regulated by the Crimes Act 1958. It is an offence for a person to:

(a)  engage in sexual penetration with another person without their consent;

(b)  fail to withdraw if the other person withdraws consent at any given time; or

(c)  compel another person to have sexual intercourse without their consent.

For a person to be convicted of a rape offence, the prosecution must prove the accused:

(d)  did rape or attempt to rape that person; and that they

(e)  intended to rape or attempt to rape another person.

These are known as the actus reus and mens rea of a crime (i.e. the physical act and mental state).

For the most recent page on the charge of rape, see our specialist rape lawyers page, as there have been several important legislative changes. See ‘Consent & Sex Offences‘ for more on consent and recent legislative changes. For more on statistics on rape charges in Victoria, see below.  

THE ELEMENTS OF THE CRIME

The accused in rape offence matters is innocent until proven guilty (the presumption of innocence). The prosecution bears the onus of proof to show that the accused has satisfied all the elements that constitute the criminal offence.

Under section 38 of the Crimes Act, a person commits rape if he or she intentionally sexually penetrates another person without that person’s consent. Sexual penetration includes the introduction of any body part or object into the mouth, vagina or anus of another person.

It is also akin to rape if an accused person does not withdraw upon the request of another person. Further, it is a rape offence to compel another person to give consent through force or threat of force or harm. It is also an offence to attempt to rape another person, even if the accused has not come close to the victim but has satisfied the mental elements of the rape offence.

Falling short of rape, for offences occurring before 1 July 2017, a person may also be charged under section 57 of the Crimes Act for procuring sexual penetration by threat or fraud (this section has been repealed). This carries a maximum sentence of 10 years for threat and 5 years for fraud.

Consent and awareness are two very contentious points of law, particularly in rape offences where it is often one person’s word against another’s. An experienced criminal lawyer may be able to raise a defence in your matter.

Rape offences carry a maximum penalty of 25 years imprisonment. Furthermore, as a category 1 offence, a custodial sentence must be imposed for a rape conviction, so you must contact a criminal defence lawyer immediately if you have been charged with rape.

DEFENCES

It is a defence to a charge of rape if the accused can show they held a mistaken but reasonable belief that the victim was consenting. For offences committed from 30 July 2023 onwards, the accused’s belief of the victim’s consent is not reasonable if, within a reasonable time before or at the time the sexual act takes place, he or she did not say or do anything to find out whether the victim consents (s 36A(2)). See here for more on reasonable belief as it applies to offences committed before 30 July 2023.

This is a challenging area of law, and there have been many amendments to consent law in recent years. You must contact an experienced criminal lawyer to represent you and, if appropriate, raise this defence on your behalf. There are multiple factors a jury may take into consideration to determine the “reasonableness” of the accused’s belief, so it is critical to obtain an experienced sex offence lawyer to establish the best possible case in your defence.

Consent is a contentious topic in cases of rape. Numerous cases address the kinds of express, implied, verbal, written or physical actions which may constitute consent. It is not a defence to a charge of rape to say that the victim did not expressly refuse sexual activity. However, factors may be taken into account that show that they did consent to sexual acts.

If you have been charged with rape, contact an experienced criminal lawyer to explain the intricacies of this area of criminal law to you.

STATISTICS

Recorded rape and sexual offences in 2023

Crime statistics recorded by Victoria Police in the Law Enforcement Assistance Program (LEAP) between September 2022 and September 2023 show that 4348 rape offences were reported to police in that year, 3.2% less than the previous year. Charges were laid in only 16% of incidents of alleged rape reported during this period.

While the percentage of incidents in which charges were laid seems low, it is a testament to the difficulty in proving rape offences. It is also important to note that the percentage of incidents proceeding through the justice system will increase as offences may be reported many years after an incident occurs.

Statistics also showed that there were 3505 victim reports of rape, indicating that a proportion of the 3272 incidents reported were committed more than once on the same person.

The overall picture of sexual offences reported during this period was slightly different. There were 14,376 recorded sexual offences, which was 4.2% higher than the previous year. Of these sexual offences, 45% (6,535) proceeded to arrest or summons, 4.3% more than the previous year, and 18% were withdrawn (2,566). Interestingly, the number of sexual offences withdrawn was 11.5% less than the previous year.

Furthermore, of 9,307 victim reports of a sexual offence, 83% were females, of which 38% were aged under 17 years of age. Of the victim reports by males, 42% were aged under 17 years of age. 40% of all victim reports of sexual offences were family-incident related. This means that reports were completed when family violence incidents, interfamilial-related sex offences and child abuse were also reported to police.

As can be shown by the above statistics, while the number of reports of rape has decreased compared to last year, the number of sexual offences has increased. However, these reports will likely increase because an offence can be reported many years after an incident was alleged to have occurred.

High drop-off rate of rape and sexual offences in the justice system

Data published in 2021 examining incidents of sexual offending reported between July 2015 and 2017 revealed a high drop-off rate of sexual offences through the justice system (see Attrition of sexual offence incidents through the Victorian criminal justice system: 2021 update).

This data revealed that only one in seven incidents of sexual offending reported to police progressed through the justice system to be proven in court. Most alleged sexual offence incidents did not progress past police investigation, with police identifying an offender for half of the incidents reported and charging an offender for only one in four.

The Crime Statistics Agency Chief Statistician Fiona Dowsley said that “Alleged incidents of rape and sexual assault are significantly under-reported and those that are reported have a low likelihood of resulting in a conviction… [the] study found most incidents reported to police never reach court, and for those that do it can take years for matters to be finalised”.

The research showed one in five sexual offence incidents reported to police was withdrawn by the victim before the conclusion of the police investigation. Rape incidents were the least likely to progress, with 10% of rape incidents reported to police proven in court, compared with 15% of indecent assault incidents.

Overall, incidents where the perpetrator was a stranger, involved other non-sexual offences, and that occurred in regional Victoria were more likely to progress through the justice system.

Historical offences

The statistics also indicate that a large proportion of rape offences are reported more than a year after they occurred. It is important to note that rape and sexual offences (especially in cases involving a child) are not barred by the Limitations of Actions Act. This means a person may be charged for rape or sexual offences allegedly committed years ago against a child who does not report the offence until maturity.

This does not act retrospectively, so a person who was initially acquitted of rape cannot be prosecuted for rape again. However, it does mean that an accused person may be charged for rape offences committed years before the offence was reported to police.

CONTACT

If you have been charged with a rape or sexual offence under the Crimes Act 1958 (Vic), contact one of our experienced criminal lawyers for advice and support as soon as possible.

If you have been charged with a rape offence under interstate legislation, but your court appearance is listed in Victoria, or if you live in Victoria and wish to have your court matter heard closer to home, contact one of our criminal defence lawyers today.

If you have been charged under any other part of the Crimes Act, or you are seeking general legal advice because you are worried you may be charged in the future, do not hesitate to contact our office.

Rape is a serious offence which carries heavy penalties, including conviction and imprisonment. To ensure you are well represented in your matter, contact one of our experienced criminal defence lawyers to get you the best possible outcome.