Sexual violence in Victoria
The Crimes Act of 1958 was expanded to address these disturbing circumstances. Among those noted in s37B were the unacceptably high incidence of sexual violence in Victoria (37B sec A), that a significant number of sexual offences are committed against women, children and vulnerable persons (37B sec C), that sexual offenders are commonly known to their victims (37B sec D) and sexual offences often occur in circumstances that diminish the likelihood of finding physical evident (37B sec E).
Among the reforms introduced were broadening the aggravating circumstances of rape to include consideration of the mental state of both offender and victim; as well as expanding the instrumentality of rape beyond the previous emphasis on the penis to now include any object, including digital penetration of vagina, mouth, or anus. Merely coercing another person to commit rape can be considered rape (38 Par 3). Free consent being the essential threshold between consensual sex and rape, the principal debate then is what constitutes consent. Implied consent is now largely irrelevant.
The fact that a woman does not do anything to signify consent during the assault is sufficient to imply that the act occurred without her free consent (37 par A). The lack of physical resistance or injury should not imply consent either (37 par B). Even if the victim initially consented or had done so on prior occasions can no longer be taken to mean that she consented to the act of rape when it did happen. The law is so explicit that even in the midst of consensual sex, consent can still be withdrawn and thus the act reverts to assault in the eyes of the law (38 Par 1 and 2).
Intake of drugs or alcohol is now to be taken as vitiating free consent. Finally, the fact of adolescent (10 to 16 years old) consent is no longer exculpatory but a mitigating circumstance at best (Sexual Offence, p. 83). Given the stigma attached to being a rape victim, the law leans heavily in favour of assuming rape over consensual sex. This serves the interest of justice. Being a personal and private crime, rape is often a question of the word of the rapist versus that of the victim. Without the law to support her, the victim will endure her shame in silence and without hope of redress.
Among the reforms introduced were broadening the aggravating circumstances of rape to include consideration of the mental state of both offender and victim; as well as expanding the instrumentality of rape beyond the previous emphasis on the penis to now include any object, including digital penetration of vagina, mouth, or anus. Merely coercing another person to commit rape can be considered rape (38 Par 3). Free consent being the essential threshold between consensual sex and rape, the principal debate then is what constitutes consent. Implied consent is now largely irrelevant.
The fact that a woman does not do anything to signify consent during the assault is sufficient to imply that the act occurred without her free consent (37 par A). The lack of physical resistance or injury should not imply consent either (37 par B). Even if the victim initially consented or had done so on prior occasions can no longer be taken to mean that she consented to the act of rape when it did happen. The law is so explicit that even in the midst of consensual sex, consent can still be withdrawn and thus the act reverts to assault in the eyes of the law (38 Par 1 and 2).
Intake of drugs or alcohol is now to be taken as vitiating free consent. Finally, the fact of adolescent (10 to 16 years old) consent is no longer exculpatory but a mitigating circumstance at best (Sexual Offence, p. 83). Given the stigma attached to being a rape victim, the law leans heavily in favour of assuming rape over consensual sex. This serves the interest of justice. Being a personal and private crime, rape is often a question of the word of the rapist versus that of the victim. Without the law to support her, the victim will endure her shame in silence and without hope of redress.
Source: law aspect
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