Do you need a rape or sexual assault lawyer in Melbourne?
Any alleged offending of a sexual nature is serious. Hearing that someone may be or has made a complaint against you involving a sexual offence can be incredibly stressful, and potentially damaging to your reputation and integrity. Getting expert advice as early as possible is essential, even if the police are not yet involved. Arranging a conference with a lawyer will make clear the immediate steps that need to be taken to best protect your livelihood and explain to you all the avenues moving forward.
Of all the matters Anthony Isaacs fight in contested hearings or trials, rape and sexual assault form a very high percentage. These cases can be particularly difficult, because often the only evidence is that of the complainant. We have the expertise and experience to know what is required to mount the best possible defence and see clients successfully acquitted of these types of charges.
What is rape?
To be charged with rape, the allegation must be that (i) an act of penetration has taken place, (ii) which the complainant did not consent to, and (iii) that the accused person did not reasonably believe that the complaint was consenting to the penetration.
The penetration may be of the mouth, vagina or anus by a finger, tongue, penis or other object.
For example, it may be alleged that the accused penetrated the complainant’s vagina with a finger (referred to as digital penetration), or that the accused placed their mouth over the complaint’s penis, and in either case, the complainant was not consenting to the act, and that the accused did not have a reasonable belief that they were consenting
The difference between sexual assault and rape
For there to be a rape, there must be some type of penetration. Touching or other contact without penetration may be a sexual assault, but not rape.
An assault may be sexual because of where the person has been touched (breasts, buttocks, outside of vagina, etc) or because the person touching was sexually aroused by doing so.
A person can also be charged with rape where they cause another person to penetrate themselves, or a third person.
Fighting or Contesting a rape charge
To contest a charge of rape, the accused might argue that (i) no penetration took place, (ii) that the person did consent, or (iii) that they held a reasonable belief that the person was consenting at the time of the act.
Understanding consent – Progressive changes in legislation
What is the meaning of consent and how is it applied?
The meaning of consent and the responsibilities of an accused person in Victorian rape and sexual assault matters continues to evolve. Significant changes to the legislation took effect in July 2015 and July 2023 which are explained below.
Importantly, the test applied to an accused is that which was in effect at the time of the alleged incident. For example, if a rape is alleged to have taken place on 1 March 2018, but the accused is not charged until January 2024, their matter is determined on the law as it was prior to 30 July 2023.
Before 1 July 2015 – subjective belief in consent
The position before 1 July 2015 was that the prosecution was required to establish that the accused was ‘aware’ that the complainant was not, or might not be, consenting before they could be found guilty.
The accused’s belief in consent was determined ‘subjectively’, meaning that a jury only had to determine whether or not the accused themselves believed the other person was consenting, not whether that belief was also reasonable in the circumstances.
The accused’s belief in consent is significant, as it goes to their awareness that the complainant was not, or might not be consenting.
After 1 July 2015 – introducing reasonableness to consent
Amendments to the law in July 2015 introduced the requirement of reasonableness to consent. ie, the prosecution had to prove that the accused did not reasonably believe that the complainant was consenting before they could be found guilty.
This means that when determining the accused’s belief, the Court now applied an ‘objective’ test, which examines the accused’s belief “in the light of generally accepted community standards and attitudes”.
The prosecution can therefore establish their case by inviting the jury to find either that the accused did not hold any belief that the complainant was consenting, or that if they did hold such a belief, it was unreasonable in all the circumstances.
These circumstances include, but are not limited to, any steps that the accused has taken to ascertain whether the other person is consenting to the act or would consent to the act.
Importantly, the legislation set out that where the accused was intoxicated, regard must be had to the standard of a reasonable person who is not intoxicated. ie, what would a sober person have done in that same scenario? The same standard is not applied to the complainant’s actions.
The July 2015 updates also introduced the following circumstances where somebody is deemed unable to give consent:
- The person submits because of force or the fear of force/harm, to themselves or someone else or an animal
- The person submits because they are unlawfully detained
- The person is asleep or unconscious
- The person is so affected by alcohol or drugs as to be incapable of consenting
- The person is incapable of understanding the sexual act
- The person is mistaken about the sexual nature of the act
- The person is mistaken about the identity of any other person involved in the act
- The person mistakenly believes that the act is for medical or hygienic purposes
After 30 July 2023 – the ‘affirmative consent’ model
Further amendments to reasonable belief in July 2023 were made to reflect the principle that “consent to an act is not to be assumed”.
It introduced the requirement to actively seek the consent of the other party. If an accused did not either say or do anything to find out whether the other person was consenting within a reasonable period prior to, or at the time of, the act, their belief in consent is deemed unreasonable.
Taking steps to obtain consent can include receiving a verbal “yes” or head nod from the person, or their reciprocating taking off clothing.
The circumstances when a person is deemed unable to give consent were also expanded to include:
- When the act occurs in the provision of commercial sexual services and the person engages in the act because of a false or misleading representation that the person will be paid;
- the person engages in the act on the basis that a condom is used and either—
- before or during the act, any other person involved in the act
intentionally removes the condom or tampers with the condom; or
(ii) the person who was to use the condom intentionally does not use it;
(iii) having given consent to the act, the person later withdraws consent to the act taking place or continuing.
The differences in short
If the alleged offence occurred prior to 1 July 2015, a jury will examine the accused’s own belief in consent without applying community standards. Their finding will then assist determining whether the accused was aware that the complainant was not, or may not be consenting.
If the alleged offence occurred between 1 July 2015 and 30 July 2023, a jury will simply examine the accused’s belief in consent, and whether it was a reasonable belief taking into account community standards. In doing so, a Jury may look to what the accused said or did, if anything.
For offences after 30 July 2023, an accused must establish that they said or did something to find out whether the other party was consenting, or will otherwise be deemed to not have held a reasonable belief in consent
Why do you need immediate legal advice?
Rape and sexual assault cases can be won or lost on what the accused says to Police during the initial recorded interview. Often, this is the first time hearing the allegations. It is crucial that you receive legal advice prior to answering the questions of Police to setup the best defence possible.
This can be provided immediately and over the phone if required.