Rape is defined as the act of penetration of the vagina, mouth or anus by a penis, finger, tongue or object, without the specific consent of the person being penetrated. If the penetration was partial or for a short time, it is still considered rape, and the time or degree of penetration does not constitute a legal defence.
It is important to know that from 1 July 2015 new legislation pertaining to Rape and Sexual Offences was put into effect in Australia. It is also important to know that the new legislation is not retroactive, meaning that offences that took place before this date will be prosecuted under previous legislation.
The 2015 legislation regarding Rape and Sexual Offences speak to, amongst others, the following:
The 2015 legislation has amended the previous structure of sexual offences, and has also introduced the following changes:
- Rape by compelling sexual penetration
- Sexual assault
- Sexual assault by compelling sexual touching
- Assault with intent to commit a sexual offence
- Threat to commit a sexual offence
The 2015 Rape and Sexual Offences legislation also provides for several circumstances in which a person does not consent to an act. These circumstances include:
- The person submitted because of force or the fear of force and or harm, either to themselves or someone else, or an animal
- The person submitted because they are unlawfully detained
- The person was unconscious or asleep
- The person was affected by alcohol and or drugs to such a degree that they were incapable of consenting
- The person was incapable of understanding the sexual act
- The person was mistaken about the sexual nature of the act
- The person was mistaken about the identify of any other person involved in the act
- The person believed that the act is for medical or hygienic purposes
Regarding other sexual offences
The legislation also allows that a person be charged in relation to sexual penetration in the case where they caused another person to penetrate the victim, or caused that the victim to penetrate themselves.
It is also possible for a person to be charged with sexual assault in cases of sexual touching, and is tested in respect to reasonable belief. It should also be noted that if the defendant was under a mistaken but reasonable belief that the touching was not of a sexual nature, it does not constitute a defence to the charge.
Furthermore, regarding sexual offences, the legislation sees sexual assault by compelling sexual touching as a separate offence, and covers cases where the defendant caused another person to touch the victim, themselves or another person.
Regarding the act of touching
For the charges listed above, the act of touching is seen as being sexual on account of the body area being touched, or that the person performing the touching is doing so as an act of seeking or receiving sexual gratification from the act. Touching also isn’t only seen as direct touching and can be performed through anything, an example being bed sheets.
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It is of the utmost importance that you receive the best legal advice regarding rape. Not receiving adequate legal representation can have devastating long-term consequences for the rest of your life. To avoid this, please do not hesitate to contact us.