Sexual+Offences

**Rape**
Rape is covered by s38 of the Crimes Act 1958 (Vic).

**Actus Reus**

 * 1) The defendant will commit the requisite actus reuse where they intentionally penetrate another to any degree in the mouth, vagina or anus.
 * 2) The penetration must have been without consent

__Penetration__
 * According to s35(1)(a) of the Crimes Act 1958 (Vic) 'penetration' means the introduction to any extent of the penis into the mouth, anus or vagina; or
 * According to s35(1)(b) of the Crimes Act 1958 (Vic) 'penetration' means the introduction to any extent of an object or part of the body into the vagina or anus of another.
 * Penetration can be committed by either sex in respect of either sex.

__Consent__
 * s36 of the Crimes Act 1958 (Vic) defines consent as 'free agreement', and sets out a non-exhaustive list of situations in which consent is deemed to have been given include where:
 * (a) The person submits because of force or fear of force to that person or someone else;
 * (b) The person submits because of the fear of harm of any type to that person or someone else;
 * (c) The person submits because she or he is unlawfully detained;
 * (d) The person is asleep, unconscious, or so affected by alcohol or another drug as to be freely agreeing;
 * (e) The person is incapable of understanding the sexual nature of the act;
 * (f) The person is mistaken about the sexual nature of the act or the identity of the person;
 * (g) The person mistakenly believes that the act is for medical or hygienic purposes;

Consent can be given by words, non-verbal conduct, a course of non-verbal conduct or any combination thereof per __R v Wilkes v Briant__.

Where consent is withdrawn during intercourse, the defendant must withdraw from penetration upon becoming aware of this change per __Kaitamaki v R__ and s38(2)(h) of the Crimes Act 1958 (Vic).

Fraud will only vitiate consent where the mistake goes to the identity of the other person, the nature of the act, or the purpose of the act per __Papadimitropoulos v R__ and s36(f) of the Crimes Act 1958 (Vic). Thus the characteristics of the man, or other collateral or antecedent matters, will not vitiate consent as ultimately the victim has nevertheless consented to the act of sexual intercourse with the defendant.

Consent will only be negated by intoxication where the intoxication is so great that the victim lacked the understanding of the situation necessary for her to make a proper choice per R v Lang.

__Intention__
 * The only intention required is the intention to sexually penetrate. There need be no intent in relation to consent, and it is not necessary that the defendant commits the act for sexual gratification per __R v Dunn__.

Mens Rea
The defendant will have the requisite mens rea where they were aware or were reckless not consenting or, having already penetrated, becomes aware the the victim might not be consenting.

The defendant will be acquitted where they had an honestly held belief that the victim was consenting. THis is assessed subjectively, and there is no requirement that the belief held by the defendant by objectively reasonable per __DPP v Morgan__.

However, when considering the defendant's alleged belief the jury must take into account "all the relevant circumstances" per s37(1)(c) of the Crimes Act 1958 (Vic). Thus, the jurors will assess the belief objectively and decide whether or not the defendant could have reasonably held that belief in the circumstances of the case. The reasonableness of the belief is, however, merely a factor in the assessment of the belief held by the defendant. It does not hold that an unreasonable belief will automatically make the defence of an honest belief untenable per __R v Laz__.

Indecent Assault
Indecent Assault is covered by s39 of the Crimes Act 1958 (Vic).

**Actus Reus**
The defendant will commit the requisite actus reuse where they assault another in indecent circumstances.

__'Assault'__
 * Assault has the same meaning under the common law definition and s31 of the Crimes Act 1958 (Vic).
 * This means that assault requires an intention by the accused intentionally or recklessly to put the victim in fear of immediate and unlawful touching.
 * Where the act performed (such as touching a woman on the backside) has both an innocent and indecent interpretation, the prosecution must prove that the defendant intended to perform an assault that a right-minded person would think was indecent. The defendant's motive is admissible in explaining the cause of his or her conduct.

__'Indecency'__
 * Indecency is set by the reasonable standards set by the community at that time. It is concerned with the contravention of standards of decent behaviour in regards to both sexual modesty and privacy.

Mens Rea
The defendant will have the requisite men tea where they are aware the other person was not consenting or was reckless as to the possibility that they were not consenting.

__Consent__
 * Consent has the same meaning as under s36 of the Crimes Act 1958 (Vic) (i.e. free agreement).