Chapter 32 outlines the offence of Rape and Sexual Assaults. A common feature of these offences is consent, where if consent is given there is no offence. Consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. However consent is not freely or voluntarily given if it is obtained by; force, threat or intimidation, by fear of bodily harm, be exercise of authority, by false or fraudulent representations about the nature of the act or by a mistaken belief induced by the accused person that the accused person was the persons sexual partner.
Any person who rapes another person is guilty of a crime. For the purpose of this section rape includes:
For this section a child under the age of 12 is incapable of giving consent. The maximum penalty for rape is life imprisonment.
An example of rape where consent is obtained by false and fraudulent representations about the nature of the act is evident in R v Williams [1923] 1 KB 340 where the victim’s singing and voice production teacher gave false and fraudulent representations as to the nature of the act of sexual intercourse and pretended he was performing an operation to improve a pupil’s breathing.
An example of rape where consent is obtained by threat is evident in R v PS Shaw[1995] 2 Qd R 97 where the appellant forced the complainant to have sex with him and allow him to video the act by threatening the complainant that she would not get to go home to her family if she ‘didn’t do it right she would have to do it over and over again until it was right’.
An attempt to commit rape can be an alternative verdict to rape. Attempt as defined in s 4 of the Criminal Code means; when a person who is intending to commit an offence, begins to put their intention into execution by some overt act, but does not actually commit the offence. The maximum penalty if found guilty of attempted rape is 14 years imprisonment.
An example of attempted rape is in R v Williams; Ex parte Minister for Justice and A-G[1965] Qd R 86, it was held that the acts of an accused who pinned a naked woman to the floor, struck her blows to the head and body and inserted his fingers while saying he was going to have her, were more than mere preparation and sufficient to constitute an attempt to rape.
It is an offence for any person who assaults another with intent to commit rape. For this offence to be made out it is necessary for the accused to:
The maximum penalty for assault with intent to commit rape is 14 years imprisonment.
It is an offence for any person to unlawfully and indecently assault another person or procure another person without their consent to commit an act of gross indecency or to witness an act of gross indecency. In R v Court[1987] QB 156 it was held that the word “indecent” meant a contravention of standards of decent behaviour relating to sexual modesty or privacy. In R v Whitehouse [1955] QWN 76 it was expressed that the word “gross” should be given the Oxford Dictionary meaning of “plain, evident, obvious”.
The maximum penalty if found guilty of sexual assault is 10 years imprisonment.
An example of sexual assault is found in R v BAS [2005] QCA 97 where the appellant grabbed the victim by the breasts, pushed her up against the wall of the house and tried to stick his hands down her pants.
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