Rape and the law

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In 1991, the Victorian Government passed the Crimes (Rape) Act 1991. The purpose of this Act is 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 give greater protection to complainants 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 that 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.

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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, will be involved in this process. They are called a witness in this process because rape is defined legally as a crime against the community, even though they are the one who has suffered from the crime. Because of this definition the community will prosecute through the Department of Public Prosecutions and the victim/survivor will not need to engage their own legal representation.

If the man pleads guilty to the charge of rape, you may not have to go to court at all. If he pleads not guilty, you will have to go to court.

Rape cases are given priority in Victorian courts, so that the maximum period from time of charge to committal is 3 months. Similarly, 3 months is the maximum period allowed from committal to trial. If a delay does occur the Department of Public Prosecutions will inform the victim/survivor of the reasons for this delay.

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The charges

The police will charge the man with rape (or attempted rape) in one of the following categories:

1. Rape penalty up to 25 years in prison.

Rape occurs when a man has sexual intercourse with a woman without her consent, knowing that she is not consenting or might not be consenting. It also occurs if a man continues to have sexual intercourse with a woman who initially consented, if she has changed her mind and he is aware she wants him to stop.

The physical acts covered by the offence "rape", include not only penetration of the vagina by the penis, but also anal and oral intercourse and the insertion of a part of the body or an object into a person's vagina or anus. The penetration can be to any extent and the definition of vagina includes the external genitalia, as well as a surgically constructed vagina. It is also irrelevant, for the purposes of sexual penetration, whether or not there is an emission of semen.

The law states that "consent" means free agreement. A women 'is not regarded as having freely agreed to a sexual act, if she agreed to the act because the man threatened to harm her or someone else, or detained her against her will until she agreed. It is rape if a man has intercourse with a woman who cannot freely agree because she is asleep, unconscious or greatly affected by alcohol or another drug.'

If a woman does not consent to the act, it is rape whether the man is her husband or a stranger, whether she is 8 or 80, whether she is a virgin or a prostitute. Boys aged 10 or older can be charged with rape.

2. Attempted rape penalty up to 1- 5 years in prison.

3. Sexual penetration of a young person penalty up to 20 years in prison, depending on the age of the victim.

Various laws prohibit sexual acts with or in the presence of children, who cannot legally consent to sexual acts involving adults.

4. Indecent assault penalty up to 10 years in prison.

Indecent assault covers sexual acts other than those involving sexual penetration, such as touching a person's breasts or buttocks.

5. Abduction and threat to life may be added to the above charges

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The committal hearing

There are two kinds of court hearings. The first is the committal hearing, where a magistrate decides if there is enough evidence for the case to go to trial. The committal hearing is held in a Magistrates' Court and will probably be held a couple of months after the man is charged with sexual assault. The time the hearing takes varies between a few hours and a few days, occasionally it will be longer.

The magistrate may allow a closed court at the committal hearing while the victim/survivor gives their evidence. They can also request that their name and address not be given in court. Both of these things need to be prearranged.

The case against the accused man is presented at the committal hearing and at the trial by a barrister briefed by the Director of Public Prosecutions. The victim/survivor's position in the court is that of a witness, so they won't have a lawyer representing them in court. The man is defended by his own lawyer. He may not have representation at the committal hearing, but he almost certainly will if there is a trial. The man does not have to give evidence, his lawyer will often act on his behalf.

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The trial

The second court hearing is the trial which is usually before a Judge of the County Court and a jury. (There is no jury if the man pleads guilty). The interval between committal and hearing is usually 23 months. The court is generally not a closed court at trial. However, on application by the prosecution and at the Judge's discretion, the court can be closed while the victim/survivor gives their evidence.

If the man pleads guilty the victim/survivor will not have to give evidence at the court and may not even have to go to the court at all. However, if the man pleads not guilty they will have to give evidence under oath in the witness box and be cross-examined by the defence. After evidence has been given by the victim/survivor other witnesses will be questioned.

At the end of the trial, the jury gives a "guilty" or "not guilty" verdict and the judge then passes sentence. The trial may take a few days or occasionally longer.

If you live in a country area, you may not want the court hearings to be held locally. If this is so, ask the court if it can be arranged for the hearings to be held in another town.

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Disclaimer Copyright Updated: 27 May 2009