Rape Offences Are Regulated by the Crimes Act 1958

by Dribbin & Brown Criminal Lawyers

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

  1. engage in sexual penetration with another person without their consent;
  2. fail to withdraw if the other person withdraws consent at any given time; or
  3. compel another person to have sexual intercourse without their consent.

In order for a person to be convicted of a rape offence, the prosecution must prove the accused:

  1. did rape or attempt to rape that person; and that they
  2. intended to rape or attempt to rape another person.

These are known as the actus reus, and mens rea of a crime (the physical action and mental state).  



The accused in rape offence matters is innocent until proven guilty. The prosecution bears the onus of proof to show that the accused has satisfied all the elements which together 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, a person may also be charged under section 57 of the Crimes Act for procuring sexual penetration by threat or fraud. This carries with it 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, so it is vital that you contact a criminal defence lawyer immediately if you have been charged with rape.



It is a defence to a charge of rape if the accused can show they held an honest mistaken belief that the victim was consenting. This belief must be reasonable in the circumstances and the accused must show that they had taken all reasonable steps to ascertain whether the victim was consenting.

This is a difficult area of law, and it is important that you contact an experienced criminal lawyer to 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 important that a good criminal defence lawyer establishes the best possible case in your defence.

Consent is a contentious topic in cases of rape. There are numerous cases which address what kind of express, implied, verbal, written or physical action constitutes consent. It is not a defence to a charge of rape to say that the victim did not expressly refuse sexual intercourse. However, factors may be taken into account which show that they did in fact 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.    



Crime statistics compiled by Victoria Police between July 2013 and June 2014 show that 2,144 rape offences were reported to police in that year, 3.7% more than the previous year.

Of those 2,144 people accused of rape offences, 1,349 were cleared. A further 598 were cleared from previous years, meaning that just under 91% of recorded instances of rape did not result in a conviction for the defendant.

While this number seems high, and is testament to the difficulty of proving rape offences, it is important to note that close to 10% of those who were accused of rape were subsequently convicted.

Statistics also showed that there were 1,765 rape victims, indicating that a proportion of the 2,144 offences were committed more than once on the same person. Further, 167 of those victims were male, indicating that although women make up the majority of crime victims in this area, they are certainly not the only ones.

As noted in the statistic records, there may be a link between the increase in rape offences over the last year with the increase in family-incident related rape offences. These incidents increased by 15.6% from 2012/13 to 2013/14. There were 735 incidents in 2013/14, making up 34.3% of all rape offences across the state. This means that over one third of all rape offences recorded by Victoria Police over the last year were committed by a family member against another family member.

In reference to locations where rape occurs, residential locations made up 70% of all rape offences. 1,500 incidents of rape occurred in or around the home, while 514 incidents occurred in non-residential areas.

Over the past year there was also an increase in historical rape offences reported to Victorian police. This is defined as rape committed outside of the current financial year (2013/14) but can date back many years to when the incident or incidents occurred. This number is up to 59% for the 2013/14 year, making up 878 of the 2,144 reported incidents. This number is lower, however, than the 2012/13 year which showed 64% of incidents were of a historical nature.



As can be shown by the above statistics, incidents of rape have increased over the last year. While the non-conviction rate is quite high, large proportions of offenders are still convicted of the crime and could face up to 25 year in prison.

We also see that a large proportion of incidents of rape are committed by a family member, and it is more likely that rape will occur in the home rather than in non-residential areas.

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



If you have been charged with a rape offence under section 38 or 57 of the Crimes Act, contact one of our experienced criminal lawyers immediately.

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.



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