Frequently Asked Questions

Q: What are the basic elements of the offence of rape?

Despite the difference in name, the law is generally similar throughout Australia. The crime consists of three basic elements:

• sexual intercourse;
• an absence of consent; and
• the mental element of the accused.

The first requirement relates to the physical nature of the crime. The law is now generally expressed in gender-neutral terms, so that there is not an assumption that only a woman could be the victim of a rape. In addition, the crime is wide enough to include acts that would not involve actual penile penetration.

This topic naturally brings up some difficult issues concerning when someone consents. It would, however, be reasonable to say that consent must be freely given, may be withdrawn at any time and cannot be obtained in situations involving force, fraud or intimidation. The law also considers some individuals (such as a young person under age or someone who is mentally disabled) as being incapable of giving consent. Likewise, a person who is asleep or sedated would be unable to give their consent.

The final mental element reflects the mental state of the accused. It requires the prosecution to prove that the accused knew of the lack of consent, was reckless or indifferent to it or failed to stop when the complainant (that is, the person alleging the sexual attack) said no. This may also address situations where the complainant did not say no, but it would be clear that they had not consented. This is a separate issue from the accused claiming that they had an honest or reasonable belief that the complainant had consented.



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