Rape and the Law

Rape and sexual assault are crimes and women have the right to pursue justice through the legal system. Women who have experienced such crimes also have the right to what protection the law can offer and to seek compensation for the harm they have suffered as a result of the crime.

Rape and sexual assault are two of the most underreported crimes in Australia. The ABS Victims of Crime Survey 1996 indicates that only 25% of sexual assaults are reported to police. Other researchers have estimated that as few as 10% of rapes are reported to the police (F.B.I). Only a small proportion of the offences reported to the police are prosecuted in court and less than half of these will result in a conviction.

While there are various reasons why women do not access the criminal justice system, the difficulty of the legal process and the low conviction rate are among the many reasons women give as to why they are reluctant to report rape to the police. (Report of the Taskforce on Women and the Criminal Code, Qld, 2000)

Understanding your legal position and your rights during the legal process can help you decide whether or not to report and can help prepare you for the experience, if you do decide to report.

Under the law, rape and other forms of sexual assault are seen as "criminal acts".

In court the Government prosecutes the "accused" rapist and the rape survivor is the chief witness for the prosecution.

Laws relating to sexual offences differ from state to state. In reporting sexual offences, the laws that apply are from the state in which the offence occurred.

In Queensland, rape and indecent assault are dealt with under sections 349 and 350 of the Queensland Criminal Code 2000 (QCC). The Criminal Code defines rape as:

sexual intercourse without consent (in the QCC the expression "carnal knowledge" is used to describe the act of penetration in sexual intercourse - this includes anal intercourse).
penetration of a persons vulva, vagina or anus to any extent with a thing (for example, an object, like a stick or bottle) or any body part (eg. a finger) without consent.
oral penetration to any extent of a person by a penis without their consent.

Consent is defined in the QCC, section 348, as "consent freely and voluntarily given with the cognitive capacity to give consent."

Consent is not considered real consent if it is obtained by force, intimidation or by deception. Women often choose not to resist a rape in order to survive. This does not mean however that she consented to what happened.

Consent is also negated if it is obtained by deception. For example, a doctor pretends that it is necessary to insert an instrument into a woman's vagina when in reality it's for his sexual gratification. Women can also be coerced by the exercise of authority, for example an employer who requires an employee to have sex in order for her to keep her job.

The term "cognitive capacity" recognises that a person must have the ability to understand the nature and effect of giving consent. In July 1989 rape within marriage was made illegal in Queensland. A woman has the right to charge her husband or de facto spouse with rape or sexual assault.

Under the Criminal Code sexual assault refers to a broad range of unwanted sexual behaviours such as touching a woman's breasts.

Historically, the notion of rape as a "crime" originated as a means to protect men's "property" (meaning: "their wives and daughters") from damage, not out of a sense of moral outrage at the violation of women's bodies. Hard fought for legal reforms have worked to make the legal system more responsive to the needs and rights of women, however for most women the experience of reporting to police and going to court is still pretty difficult.

Women often describe the experience of going to court as one of feeling that they themselves were put on trial. In court, it is likely that the defence lawyer (the lawyer representing the accused) will attempt to discredit a rape survivor's story and denigrate her character. She may even be left feeling somehow to blame for what happened.

While recent law reforms have helped protect the rights of rape and sexual assault survivors in court, community prejudices or myths about rape still flow into the workings of the legal system. Jurors, judges and other criminal justice personnel are all members of the community and may internalise society's myths and prejudices. These internalised beliefs about women and rape are possibly the most powerful obstacle to successful prosecution.

The law that is in force in Australia has been built up over many years by judges - all male until recently - and by legislators - predominantly male... thus it is clear that a law designed by males will not necessarily be suited to the needs of females.S S. Mukherjee and J. Scutt, Women and Crime (1981).

The Issue of Consent
The central issue in most rape cases is that of consent, or the accused's argument that the woman gave her consent.

The prosecution must prove the charge of rape by establishing that there was absence of consent beyond reasonable doubt. In order to establish this, the rape survivor's actions and words at the time may be brought up in court and their meaning questioned.

It is not uncommon for defence lawyers (those defending the accused) to insinuate that a woman led the rapist to believe she consented. For example, they might exploit myths like;

A woman's provocative appearance or behaviour was an invitation for consensual sexual intercourse.
A woman provoked a rape because she was drunk or because she was wearing a low cut dress, or accepted a lift in a car.

Alternatively they might argue that a woman's word could not be trusted, by calling on myths such as:

Women lie about rape for their own vengeful or fraudulent ends;
Most reports of rape are false;
Women mean "yes" when they say "no";
Women enjoy being raped and;
Women are prone to sexual fantasies or;
Men can't be blamed for losing control in a confusion of sexual signals.

Principles underpinning the legal system
Consider some of the principles that underpin the criminal justice system and the consequences for rape victims/survivors:

A person is presumed innocent until proven guilty

The accused person (the defendant) is presumed innocent until proven guilty and has the right to remain silent, which means it is the victim/survivor (the complainant) who is questioned and cross-examined.

The jury determines whether the prosecution has proved that the accused rapist is guilty beyond reasonable doubt. This means, that it is not enough for a jury to believe that it was more likely than not that he did it: they are instructed to be certain.

If a jury has reasonable doubt about whether a rape occurred, they cannot convict the defendant.

The verdict of the jury must be unanimous (all agreed) If a jury cannot reach agreement (a hung jury), a court may or may not order a retrial.

The convicted have the right of appeal

Anyone convicted of a crime, that is, found guilty by a jury has the right to appeal their conviction and their sentence. Once the accused has been acquitted - that is found 'not guilty', the case is at an end and the decision cannot be changed even if more evidence is found later. A person cannot be put on trial more than once for the same crime.

If we imagine a person who has been robbed undergoing the sort of cross-examination that a rape survivor does, we may better understand why most rape survivors choose not to press charges. Consider the following example.

Police and the courts