Can rape allegations be defended?

Rape is an incredibly serious crime codified under 38 of the Crimes Act 1958 (Vic) that usually results in imprisonment in cases where the allegations are proved.

To prove an allegation of rape, the prosecution must prove beyond reasonable doubt that the accused:

• intentionally sexually penetrated the complainant;
• that the complainant did not consent to that penetration;
• and that the accused did not reasonably believe the complainant was consenting.

How does one define ‘Sexual Penetration’?

Sexual penetration is defined broadly, and includes introducing a body part or object into the vagina or anus, and introducing a penis into the mouth.

What is meant by Consent?

Consent means free and voluntary agreement. The Crimes Act says that a person does not consent just because they do not resist verbally or physically, or just because they consented to other sexual activity with that person or anyone else at another time. There is a codified list of circumstances of physical fact in which a person can not be held consent, including where the person does not say or do anything to indicate consent, and where the person submits because of force or fear of force or harm.

Can an accused have a reasonable belief of consent?

Yes. An accused can have a reasonable belief of consent even in circumstances where complainant claims there was no consent. However, whether a belief in consent is reasonable depends on the circumstances, but a belief is not reasonable if, within a reasonable time before or at the time of the act, the accused did not say or do anything to find out whether the other person consented (with exceptions).

Intoxication obviously affects a belief in consent. However, the law treats self-induced intoxication differently from intoxication that was not self induced. Self-induced intoxication is assessed by reference to a reasonable sober person in the same circumstances, whereas this is not the case for intoxication that is not self induced.

If the intoxication was not self-induced, you instead assess reasonableness by reference to a reasonable person who is intoxicated to the same extent as the accused and in the same circumstances.

Can rape allegations be successfully defended?

Yes. A defence can succeed where there is a reasonable doubt about consent, about what was said or done to communicate consent, about the accused’s belief, or about identity, opportunity, or the occurrence of penetration.

In practice, a successful defence might mean an acquittal at trial, charges being withdrawn, a reduction to a different offence, or a plea on a narrower factual basis. Doubt can arise from contradictions, prior statements, digital messages, CCTV, medical or forensic findings, alibi evidence, or the absence of expected supporting evidence. The court will also scrutinise how a belief in consent could be reasonable in the circumstances, including the intoxication rules.

None of this is automatic. These matters are taken extraordinarily seriously, and outcomes turn on preparation and rigorous testing of the prosecution case. Early legal advice matters, because disclosure requests, expert input, and careful client instructions can shape the issues, preserve evidence, and avoid unhelpful admissions at the outset.

What is the sentence for rape?

In Victoria, the maximum penalty for rape is 25 years imprisonment. The court has the discretion to set a non-parole period, which is the minimum amount of time the offender must serve before being eligible for release on parole. The non-parole period can range from 2 to 10 years, depending on the circumstances of the offence.

The Sentencing Advisory Council’s most recent higher-courts snapshot (County and Supreme Courts) for 2019–20 to 2023–24 reports that, when rape was the main offence, 95.3% of accused were imprisoned and the imprisonment lengths for the non-aggregate principal terms ranged from 39 days to 15 years, with a median of 6 years.

It is important to note that the court will consider a range of factors, including the offender’s culpability, the existence of mitigating factors elicited through personal circumstances, when determining an appropriate sentence. We have represented clients who have received non imprisonment outcomes, not withstanding relatively serious allegations.