The Law of Rape

By James Cobiac


Rape is one of the most serious offences an individual can be charged with. It carries a maximum penalty of life imprisonment in the case of a conviction and extensive social stigma can also attach to a defendant, regardless of whether a conviction is ultimately secured against them. It is important for anyone accused of this offence to seek legal advice in relation to the circumstances of their alleged offending, especially due to the serious consequences that can follow a conviction.

The law of rape is underpinned by a number of different elements each of which must be proved beyond a reasonable doubt by the Crown. If any element cannot be proved to this standard the charge of rape will fail. Culshaw Miller Criminal Lawyers have the expertise to help you understand the offence that has been laid against you and to enable you to exercise your legal rights and options before a court. Rape occurs when a person engages in sexual intercourse with a person who does not consent to the sexual intercourse, or withdraws consent during the sexual intercourse. Additionally, the accused must be aware, or recklessly indifferent to, the fact that the person is not consenting, or no longer consenting. Despite the concept of rape being quite simple, proving that a rape occurred before a court can require extensive and thorough evidence to prove each of the elements beyond reasonable doubt.

The person accused may not be the person who committed the offence, or the victim may have mistaken the identity of their attacker. Where identity is not in issue the Crown must also establish that sexual intercourse took place between the defendant and the accused. Sexual intercourse is defined by the Criminal Law Consolidation Act 1935 (SA), s 5 as any activity that includes penetration of a person’s vagina or anus (including oral sex). Often proof of any of these acts will be corroborated by reference to medical evidence collected by the Crown and any statement provided by witnesses including the victim. Further to this, the Crown must also prove that the victim did not consent to the sexual intercourse. Consent in this respect is consent that is given freely an voluntarily without the threat of force to the victim, or another, or in circumstances where the victim is asleep or unconscious. There are also a number of other circumstances wherein consent can be qualified in some way and it is important to consult a lawyer with regards to your individual circumstances. Consent within the context of the law of rape covers instances both prior to, and during sexual intercourse, so a victim may consent for some of the activity, but at some point withdraw their consent. If this occurs the onus is on the other party to cease the sexual activity.

Because of the immensely serious consequences that attach to a conviction of rape it is also necessary for the Crown to prove the accused knew that the victim was not consenting, or was recklessly different as to whether consent was given. Reckless indifference can occur in a number of ways under the Act. It can occur where the Crown can prove the Defendant became aware that the victim might not be consenting and proceeded anyway, or failed to ascertain whether or not the person was so consenting. Additionally, having no regard whatsoever to the consent of the other person can also amount to reckless indifference. Demonstrating reckless indifference on behalf of an accused beyond all reasonable doubt, particularly where the accused did not realise consent had been withdrawn can be difficult for the Crown.

If you have been charged with rape it is important to consult a lawyer as soon as possibleof. Culshaw Miller Criminal Lawyers are available 24 hours a day to provide advice or attendance on 0418 421 153 or to book an appointment you can contact our offices on (08) 8464 0033. We have the expertise to ensure you are able to exercise any legal avenue reasonably available to you.