Charges made about someone pursuing sex with another person who has not agreed to the act is not a matter to be taken lightly.
If you are victim to non-consensual penetration, it can be a deeply emotional topic for you, and may understandably lead to hesitancies and ambiguity in navigating the legal elements involved in charging your perpetrator.
If you are the accused, you may be faced with assumptions that if you are charged you are necessarily guilty – that is, even if that may not actually be the case, and without all evidence having been assessed beyond reasonable doubt.
It’s a tricky area for all parties speaking to the situation. Hence there are a number of moral and logistical challenges that rape lawyers in Melbourne face, be they prosecution or defence. This is why we want to help clarify some fundamental elements constituting nonconsensual sex, as well various factors considered by prosecution and/or defence rape lawyers in Melbourne.
The 4 elements that need to be present in this conduct are legally defined as…
- Sexual penetration – occurs when a person introduces any part of their body or an object into the vagina, anus, or mouth of another person. There is no length of time or depth of penetration (it can be fleeting or slight) needed for it to constitute a crime.
- Intention – the accused must have intentionally committed the above.
- Consent – or lack thereof by the victim. ‘Consent’ is verbal agreement to the act, entirely by the subject’s own volition, and not for instance, submitting out of fear or being unconscious. There are a list of circumstances under the Crimes Act 1958 (Vic) (“the Act”) that you can consult if you’re questioning whether consent was involved in your situation.
- The accused’s mindset – refers to how the prosecution can prove that the perpetrator failed to ‘reasonably’ believe the victim consented to the penetration. A little vague, it’s a difficult one to navigate and involves assessing the context and relationship between the victim and the accused. For example, was anyone involved intoxicated? Are/were they romantically involved?
- Prosecution rape lawyers in Melbourne
Must prove each of the above 4 elements beyond reasonable doubt in order for the perpetrator to prove guilty, and there lie specific challenges for each.
Prosecution rape lawyers in Melbourne must also be aware of the definitions and social implications of relevant terms. For example, ‘vagina’ is inclusive of surgically constructed genitals. Therefore meaning sexual penetration is very much applicable to transsexuals.
Recently there have been dozens of reported rape cases dropped due to a lack of strong evidence, or vital evidence being withheld by associates such as psychologists. This has also been due to the difficulty in navigating matters such as young women and intoxication, and the implications this has on establishing consent. There have been attempts to create training programs to teach prosecution rape lawyers, like those in Melbourne, how to address such issues in cases.
- Defence rape lawyers in Melbourne
To combat the prosecution, defence rape lawyers in Melbourne have the job of clearly showing that one of the above 4 elements has not been satisfactorily established – that is, beyond reasonable doubt.
Defending one who has sexually violated another may appear a moral dilemma. Those who are not the accused may be questioning what motivates rape lawyers in Melbourne to take such a stance…
But the reality is there have been multiple cases of false allegations of forced sexual engagement. A recent example is that of a woman admitting before the court that she presented false accusations of her ex partner forcibly having sex with her before hosing her off (Canberra, November, 2018). The woman admitted, too, to creating false evidence to support her case, including her own head injuries.
This highlights the ongoing need to ensure integrity in statements and evidence pertaining to a case. Defence rape lawyers in Melbourne recognize the importance of scrutinizing all the elements. Whether or not a defendant is guilty, it’s highly important to assess the entire context of the act, to clearly show the 4 mandatory elements, and help the court reach the most appropriate outcome.