The offence of rape occurs where a person has sexual intercourse, or continues to have sexual intercourse, with another person without the consent of that person (or continuing where consent has been withdrawn), either knowing that there is no consent or being recklessly indifferent about that consent.
It is rape even where the victim says that they do not consent, even if they do not physically resist.
It is also rape where a person compels another to engage in, or to continue to engage in sexual intercourse with a person other than the offender; or an act of self penetration; or an act of bestiality, either knowing that there is no consent or being recklessly indifferent about that consent.
Maximum penalty:life imprisonment.
[s 48 Criminal Law Consolidation Act 1935 (SA)]
The Criminal Law Consolidation Act 1935 s 5 defines sexual intercourse to include (whether heterosexual or homosexual):
- penetration of the vagina, labia majora, or anus by any part of the body of another person or by any object; or
- fellatio; or
This definition recognises the harm that can be done by inserting objects into the vagina or anus. The inclusion of penetration of body parts other than the vagina to rape legislation recognises that there is not one specific type of sexual intercourse that is inherently more significant than another.
Consent to sexual activity is defined in s 46 of the Criminal Law Consolidation Act 1935 (SA) as free and voluntary agreement. The notion of consent has been notoriously difficult to define with the added complication that juries have been known to use it to distinguish between what they regard as acceptable or unacceptable sexual practice.
In this context the legislation has been rewritten to provide a more comprehensive definition of what not having consent actually means.
Under s 46 a person is taken not to freely and voluntarily have agreed to sexual activity if:
- the person agrees because there has been force applied (this includes an express or implied threat of force to the victim or to another person) or because of a threat to denegrate, humiliate, disgrace or harrass the person or another person; or
- the victim was unlawfully detained at the time of the activity; or
- the activity occurred whilst the victim was asleep or unconscious; or
- the activity occurred whilst the victim was intoxicated to the point of being incapable of freely and voluntarily agreeing;or
- the activity occurred whilst the victim was affected by a physical, mental or intellectual condition or impairment such that they were incapable of freely or voluntarily agreeing; or
- the victim is unable to understand the nature of the activity; or
- the victim agrees to engage in the activity with a person under a mistaken belief as to the identity of that person; or
- the person is mistaken about the nature of the activity (for example, a person is taken not to freely and voluntarily agree to sexual activity if they agree to engage in the activity in the mistaken belief that the activity is necessary for the purposes of medical diagnosis, investigation or treatment, or for the purpose of hygiene).
Reckless indifference to consent
A person is guilty of rape if he or she knows that the other person does not consent (or has withdrawn their consent) or is recklessly indifferent as to whether the other person has consented. Reckless indifference in the context of sexual offences means a failure on the part of the accused to consider the other person’s wishes, they have utter disregard as to whether or not they have consented (or withdrawn consent).
Under s 47 of the Criminal Law Consolidation Act 1935 (SA) a person will be found to be recklessly indifferent to the fact of consent (or withdrawal of consent) if he or she:
- is aware of the possibility that the other person might not be consenting (or has withdrawn consent) but decides to proceed regardless of that possibility; or
- is aware of the possibility that the other person might not be consenting (or has withdrawn consent) but fails to take reasonable steps to ascertain whether the other person does in fact consent before proceeding;
- does not give any thought to whether or not the other person is consenting to the act (or has withdrawn consent).
Even where an accused was intoxicated at the time the offending occurred, he or she will be guilty of rape provided intent to commit the offence can be shown [see further s 268 (2) Criminal Law Consolidation Act 1935 (SA)].
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