7.3.1.1 - Rape1 7.3.1.1.3C - Charge: Compelled Rape (Trial of Post 1/1/08 offence)
When to use this charge
This charge can be used for trials of compelled rape offences alleged to have been committed on or after 1/1/08. For other cases see the charges:
Compelled Rape (Post 1/1/08 trial of pre 1/12/06 offence)
Compelled Rape (Post 1/1/08 trial of 1/12/06-31/12/07 offence)
The Elements
I must now direct you about the crime of rape. The law says that rape can be committed in a number of different ways. In this case rape means forcing a person to have sex with the [accused/another person]. To prove this crime, the prosecution must prove the following five elements beyond reasonable doubt:
One - the complainant sexually penetrated the [accused/another person].
Two - the accused compelled the complainant to sexually penetrate [him/her/the other person].
Three – the accused intended to compel the complainant to sexually penetrate [him/her/the other person].
Four - the complainant did not consent to the sexual penetration.
Five - at the time of the sexual penetration the accused either:
was aware that the complainant was not or might not be consenting; or
was not giving any thought to whether the complainant was not or might not be consenting.
I will now explain each of these elements in more detail.
Sexual Penetration
The first element relates to what the complainant did. S/he must have sexually penetrated the [accused/another person].
1 This document was last updated on 3 December 2012.
1 Sexual penetration can include a number of different acts. In this case, sexual penetration means the introduction of NOC’s [penis/body part/name of object] into the [vagina/anus/mouth] of [NOA/name of other person].2
[If a surgically constructed vagina is involved, add the following shaded section.]
The word vagina includes a surgically constructed vagina.
NOC’s [penis/body part/name of object] does not need to have gone all the way into [NOA’s/the other person’s vagina/anus/mouth]. Even slight penetration is enough. However, there must have been penetration to some extent.
[In the case of penetration of a vagina, add the following shaded section.]
This includes penetration of the external genitalia – that is the external lips of the vagina.
[Where emission of semen is a potential issue, add the following shaded section.]
The law also says that there does not need to have been any emission of semen for sexual penetration to have occurred.
Compulsion
The second element that the prosecution must prove is that the complainant was compelled by the accused to sexually penetrate the [other person/accused].
The law says that the word “compel” means making someone do something by force or otherwise. In this case, NOA must have made NOC sexually penetrate [him/her/name of other person].
The prosecution alleged that NOA compelled NOC to sexually penetrate [him/her/name of other person] by [insert relevant evidence]. The defence responded [insert relevant evidence].
For this second element of rape to be met, you must be satisfied that the prosecution has proven, beyond reasonable doubt, that NOC was compelled by NOA to sexually penetrate [him/her/name of other person].
Intention
The third element that the prosecution must prove is that the accused intended to compel the complainant to sexually penetrate [him/her/the other person]. That is, you must be satisfied that the accused’s compulsion of the complainant was deliberate and not accidental. NOA
2 Rape does not include the penetration of the mouth by a body part or object, other than the penis.
2 must have intended to make NOC sexually penetrate [him/her/name of other person].
Consent
The fourth element that the prosecution must prove is that the complainant did not consent to sexually penetrate the [other person/accused]. Whether or not the [other person/accused] consented to being sexually penetrated is not relevant here. The relevant consent is the consent of the complainant, NOC.
Consent is a state of mind. The law says that consent means free agreement. So NOC will not have consented to the sexual penetration if [he/she] did not freely agree to perform such an act.
The law identifies a number of circumstances where the complainant is deemed not to freely agree, or consent, to sexual penetration. These circumstances include [insert relevant section(s) from the following and apply to the evidence:
(a) the person submits because of force or the 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 incapable of 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.]
If you are satisfied beyond reasonable doubt that one of these circumstances existed in relation to NOC, you must find that s/he was not consenting. However, you do not need to consider this question only by reference to these particular circumstances. If you are satisfied beyond reasonable doubt on any basis arising from the evidence that the complainant was not consenting, then this element will be proven.
[If there is evidence the complainant did not indicate agreement, add the shaded section if relevant.]
The law also says that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person’s free agreement.
3 This means that if you accept that NOC did not say or do anything to indicate free agreement to the sexual penetration at the time of that act, you may find on that basis that s/he did not consent to that act.
[If there is evidence about prior sex acts, or a lack of resistance or injury, add the shaded section if relevant.]
The law also says the complainant is not to be regarded as having freely agreed just because:
[if relevant] he did not protest or physically resist the accused;
[if relevant] he did not sustain physical injury;
[if relevant] he agreed to engage in another sexual act on that occasion with the accused or with any other person, or that he agreed to engage in another sexual act with the accused or another person on an earlier occasion.
However, these are relevant factors for you to consider. You must consider the action or lack of action of NOC, together with all the surrounding circumstances, in order to decide whether the prosecution has proven beyond reasonable doubt that NOC did not consent.
In determining whether NOC did not freely agree to sexually penetrate the [other person/accused], you must consider all of the relevant evidence, including what he is alleged to have said and done at the time of the alleged penetration, as well as the evidence he gave in court about his state of mind at that time. You can also consider what he did not say or do at the time of the alleged penetration.
In this case, the prosecution alleged that NOC did not consent. [Refer to evidence supporting the prosecution case]. The defence responded [insert relevant evidence].
It is important that you remember that it is not for the accused to prove to you that the complainant consented. For this fourth element to be satisfied, the prosecution must prove to you, beyond reasonable doubt, that the complainant did not consent.
State of Mind of the Accused
The fifth element relates to the accused’s state of mind about the complainant’s consent. The prosecution must prove beyond reasonable doubt that at the time of sexual penetration the accused:
was aware that the complainant was not or might not be consenting; or
was not giving any thought to whether the complainant was not or might not be consenting.
If the prosecution fails to prove to you beyond reasonable doubt that NOA
4 had one of these states of mind about the complainant’s consent, then you must find this element not proven, and you must find NOA not guilty of this offence.3
Belief in Consent
[If evidence is led or an assertion is made that the accused believed that the complainant was consenting, add one of the directions in Charge: Belief in consent]
Application of Law to Evidence
[If not previously done, apply the law to the relevant evidence here.]
Summary
To summarise, before you can find NOA guilty of rape in the way alleged, the prosecution must prove to you beyond reasonable doubt:
One — that NOC sexually penetrated [name of other person/NOA]; and
Two — that NOC was compelled by NOA to sexually penetrate [name of other person/NOA]; and
Three — that NOA intended to compel NOC to sexually penetrate [name of other person/him/her]; and
Four — that NOC did not consent to sexually penetrating [name of other person/NOA]; and
Five — that at the time of the sexual penetration NOA either:
was aware that the complainant was not or might not be consenting; or
was not giving any thought to whether the complainant was not or might not be consenting.
If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of rape.
3 If this element is not in issue, it will generally be sufficient to state that conclusion at this point and elaborate no further.
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