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 an act of penetration has taken place, which the complainant did not consent to. 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 victim’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.
Further, a person can be charged with rape where they cause another person to penetrate themselves or another person.
Sexual assault vs. rape
Touching or other contact without penetration may be a sexual assault, but not rape.
Understanding consent – before and after the new legislation
Before 1 July 2015
Under the old legislation (before 1 July 2015), the prosecution was required to establish that the accused was ‘aware’ that the victim was not, or might not be consenting, to have the accused found guilty.
Importantly, the accused’s belief in consent was to be determined ‘subjectively’, meaning that a jury only had to determine whether or not the accused held that belief, not whether that belief was also reasonable.
The accused’s belief in consent is significant then as to their awareness that the victim was not, or might not be consenting.
After 1 July 2015 – introducing reasonableness into consent
Amendments to the law in 2015 introduced the requirement of reasonableness into consent. The prosecution must now prove that the accused did not reasonably believe that the complainant was consenting.
This means that when determining the accused’s belief, the Court now applies 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 either by showing that the accused did not hold any belief that the victim 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 person has taken to ascertain whether the other person is consenting to the act or would consent to the act.
Importantly, the legislation sets out that where the accused was intoxicated, regard must be had to the standard of a reasonable person who is not intoxicated and is otherwise in the same circumstances.
Consent – differences between the legislation before and after July 01 2015, in simple terms
If the alleged offence occurred prior to 1 July 2015, a jury will examine the accused’s belief in consent without applying community standards. Their finding in belief will then assist determining whether the accused was aware that the complainant was not, or may not be consenting.
If the alleged offence occurred after 1 July 2015, a jury will simply examine the accused’s belief in consent, and whether it was a reasonable belief taking into account community standards.
In which circumstances is somebody unable to give consent (July 2015 onwards)?
The July 2015 legislation updates introduced the following circumstances where somebody is 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 believes that the act is for medical or hygienic purposes
Rape vs. other sexual offences
Other than charges of rape, or rape by compelling sexual penetration, persons may face charges for the following sexual offences:
- Sexual assault
- Sexual assault by compelling sexual touching
- Assault with intent to commit a sexual offence
- Threat to commit a sexual offence
- Sexual offences without consent to an act
We find that cases are typically fought on one of two positions. Firstly, that the allegations are a total fabrication (lies) by the complainant, and that nothing of the sort occurred, or secondly, that there was sexual contact between the parties, but that it was consensual.
Importantly, the accused’s level of intoxication or particular cultural beliefs are unable to be relied upon as part of a defence where they do not align with community expectations regarding reasonable belief in consent.
Sentencing outcomes: what happens if I’m found guilty?
Depending on the seriousness of the offending, a sentence of imprisonment is a realistic expectation if the accused pleads or is found guilty in cases of sexual offending. For charges of rape in particular, a period of imprisonment between 4 to 5 years is common.
Additionally, the accused will most likely be placed on the Sex Offenders Register for several years. This has its own implications which you can read more about here (link).
If you’ve been charged, what should you do next?
If you have been charged with rape or sexual assault offences, receiving expert legal advice is imperative. Not only are there harsh penalties for these offences, but persons found guilty may be placed on the ‘Sexual Offenders Register.
Seek expert council, especially a lawyer who has dealt with similar cases.
Contact Anthony Isaacs, experts in rape and sexual assault cases, for a confidential discussion about your charges.