Rape and the law
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In 1991, The Victorian Government passed the Crimes (Rape) Act 1991. The purpose of this Act was to reform the law relating to rape and indecent assault in order to clarify the concept of consent, reaffirm the fundamental right of a person not to engage in sexual activity and to give greater protection to complaints in court proceedings.
Areas where the judge must direct the jury
The new Act also states that a Judge, presiding over a rape case, must direct the jury in the following areas.
- The fact that a person did not say or do anything to indicate free agreement to a sexual act, is normally enough to show that the act took place without the person's free agreement.
- A person is not to be regarded as having freely agreed to a sexual act just because they did not protest or physically resist, or they did not sustain physical injury, or on that, or an earlier occasion, they freely agreed to engage in another sexual act with that person, or a sexual act with another person.
- In considering the accused's alleged belief that the complainant (victim/survivor) was consenting to the sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances.
Legal and court processes
Under the law, a person accused of a crime is innocent until proven guilty.
When the Police charge someone with rape, a legal process begins in which the person is tried for the crime of rape, found guilty or not guilty, and punished if found guilty. The person raped or sexually assaulted will be involved in this process. They are called witnesses, in this situation, because rape is defined legally as a crime against the community, even though the victim is the one who has suffered from the crime. Because of this definition the community will prosecute through the Office of Public Prosecutions and the victim/survivor will not need to engage their own legal representation.
If a person pleads guilty to the charge of rape, you may not have to go to court at all. If they plead not guilty you, the victim/survivor, will have to go to court. Unfortunately few cases actually go to trial, as it depends on the evidence available.
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Disclaimer
Copyright Updated: 20 Jul 2010
The South Eastern Centre Against Sexual Assault acknowledges the traditional Aboriginal owners of country throughout Victoria. We pay our respects to them, their culture and their Elders past, present and future.