Rape Charge in South Australia?
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Rape is a very serious charge and carries life imprisonment. In order to prove rape the prosecution must prove beyond reasonable doubt that ‘sexual intercourse’ took place, without the consent of the complainant and that the accused knew there was no consent or was recklessly indifferent.
Sexual Intercourse does not just include the traditional definition of the penis into the vagina. Anal sex, digital sex, fellatio and cunnilingus all amount to sexual intercourse. So does the penetration with an object.
The complainant will normally give evidence that no consent was given at the time of penetration. Consent needs to be obtained at each penetration and can be withdrawn at anytime during the act of sexual intercourse. A person must immediately stop if consent is withdrawn. The law deems that a person does not give consent if they unable to give free and informed consent. In other words, if a complainant is asleep or too drunk then the law says they are unable to consent. However, if a person did in fact consent at the time, but through alcohol or other drugs now has no memory, then it is not rape. At Woods & Co Lawyers we are experienced in investigating those factors which are relevant to your matter.
Further, the accused must know that the complainant is not consenting or be recklessly indifferent to that consent. In other words, he or she thought the complainant might not be consenting but continued on in any event. An accused person is not allowed at law to say he or she was too drunk to know if the other person was consenting as intoxication to the point of criminal responsibility has been repealed.
Rape is a ‘serious sexual offence’ and generally mandatory imprisonment results without suspension. Rape charges obviously create great distress to both the accused, the complainant, and their families. It is important to get the right advice at an early stage at which time we can advise you of the best way forward.
