Problems With Rape Trials * It is proposed to replace the current s.38 of the Crimes Act
(Victoria) with the following definition of rape:
* s.38 A person commits rape if -
* (a) He or she intentionally sexually penetrates another person
without that person's consent and
* (b) (i) Is aware that the person is not consenting or might not be
* (ii) A reasonable person would, in all the circumstances, have
been aware that the person was not consenting or might not be
Critically assess this proposal in terms of its likely impact on
(a) What the prosecution is required to prove; and
(b) Current problems with rape trials in Victoria.
At common law, the crime of rape appears to have required the
application of unlawful and felonious violence against the will of the
victim and completed sexual intercourse by force (Rush P & Yeo S,
2000). Over the years however, these essential elements have been
modified, and the common law offence of rape was abolished by s6 of
the Crimes (Rape) Act 1991, which came into force on 1 January 1992.
These modifications "softened" the crime of rape (Wallace et al, 2001
pp294), lending the focus from the original need for violence, to the
acknowledgement that violence need to be evidenced to prove that rape
or sexual offence occurred, in fact the focus being on the consent (or
otherwise) of the victim (Papidimitropoulos v R).
This essay will focus on the current prosecutorial requirements with
regards to consent issues, and the effect that the proposed
legislation modifications to the mental element will have on the
burden of proof for prosecution, and potentially affect the conviction
rates in sexual assault. It will also highlight the current problems
in rape trials in Victoria, and how these affect the rate of
conviction, and the impact on the victim.
The current Crimes Act (VIC) 1952 [s38] reads that
1. A person must not commit rape
Penalty, Level 2 Imprisonment (25 years maximum)
2. A person commits rape if -
(a) He or she intentionally sexually penetrates another person without
that person's consent while being aware that the person is not
consenting or might not be consenting; or
(b) After sexual penetration he or she does not withdraw from a person
who is not consenting on becoming aware that the person is not
consenting or might not be consenting.
To establish the offence of rape based on the current legislation, the
prosecution must prove beyond reasonable doubt:
1. That the accused sexually penetrated another person;
2. That the accused did so without the consent of that other person
3. That the act of sexual penetration was intentional
4. That the...