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  • Level: GCSE
  • Subject: Law
  • Word count: 2593

S.38 of the crimes act - Critically assess this proposal in terms of its likely impact on (a) What the prosecution is required to prove; and (b) Current problems with rape trials in Victoria.

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It is proposed to replace the current s.38 of the Crimes Act (Victoria) with the following definition of rape: s.38 A person commits rape if - (a) He or she intentionally sexually penetrates another person without that person's consent and (b) (i) Is aware that the person is not consenting or might not be consenting; (ii) A reasonable person would, in all the circumstances, have been aware that the person was not consenting or might not be consenting. Critically assess this proposal in terms of its likely impact on (a) What the prosecution is required to prove; and (b) Current problems with rape trials in Victoria. At common law, the crime of rape appears to have required the application of unlawful and felonious violence against the will of the victim and completed sexual intercourse by force (Rush P & Yeo S, 2000). Over the years however, these essential elements have been modified, and the common law offence of rape was abolished by s6 of the Crimes (Rape) Act 1991, which came into force on 1 January 1992. These modifications "softened" the crime of rape (Wallace et al, 2001 pp294), lending the focus from the original need for violence, to the acknowledgement that violence need to be evidenced to prove that rape or sexual offence occurred, in fact the focus being on the consent (or otherwise) ...read more.


It is true that rape can be a difficult offence to prove, especially if the accused did not make any admissions to the police and the complainant did not sustain any physical injuries. However, this is not only because the mental element in particular is difficult to prove. The basic problem is that, in the typical rape trial, the jury usually has to choose between two quite varied accounts of what took place between the accused and the complainant (R v Saragozza). Despite the inevitable debate over the facts of the case, it is rare for the accused's state of mind to be the major focus. Research into DPP case files for 53 accused who stood on trial in the County Court for rape in 1989 or 1990. Of these 53 accused, only 6% relied on 'belief in consent' as their primary line of defence, with another 9% using an actual 'consent' defence. It is not surprising that the mental element is rarely the main issue in rape trials, as 'mistaken belief in consent' is not a particularly convincing argument to run as the primary defence. This being the case, there appear to be 2 classes of accused that stand to be more likely convicted if the prosecutions burden was to change to an objective standard: 1. ...read more.


The aim, ideally should be to ensure that material is only put but before juries when it is properly relevant to the issues in the case. This is note so much a matter of legislation as of educating judges and barristers to think more critically about what is and what is not pertinent to the issues of consent, or the complainant's credibility as a witness. It also requires a serious analysis of what are, and are not, legitimate cross-examination techniques. In the long run, perhaps the factor, which will have the greatest impact on conviction rates in rape trials, will be changes in community attitudes (VAGD Annual Report, 1996). On this point there may be room for a note of guarded optimism. In Victoria there has recently been an outcry about the comments made by a County Court judge in sentencing a man for raping a prostitute, after the woman had indicated that she did not want to continue to have sex with him. It is understandable that many people should have been upset at the judge's suggesting that the accused should get a lesser sentence because the victim was a prostitute. Nonetheless, it also must be kept in mind that the jury found the accused guilty. Even a few years ago, it would have been unlikely that such a case would have found its way to court, let alone resulted in a conviction. ...read more.

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