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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Crimes Amendment (Rape) Bill 2007
TABLE OF PROVISIONS
Clause Page
1 Purpose 1
2 Commencement 2
3 Section 37 substituted 2
37 Jury directions 2
4 New sections 37AAA and 37AA inserted 3
37AAA Jury directions on consent 3
37AA Jury directions on the accused's awareness 4
5 Rape 5
6 Compelling sexual penetration 5
7 Indecent assault 6
8 Incest 6
9 New section 609 inserted 6
609 Transitional provision--Crimes Amendment (Rape)
Act 2007 6
10 Repeal of Act 7
ENDNOTES 8
561068B.I-21/8/2007 i BILL LA INTRODUCTION 21/8/2007
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Crimes Amendment (Rape) Bill 2007
A Bill for an Act to amend the Crimes Act 1958 to further provide for
the offence of rape and certain other sexual offences and for the use of
jury directions in trials for such offences and for other purposes.
The Parliament of Victoria enacts:
1 Purpose
The purpose of this Act is to amend the Crimes
Act 1958 to further provide for--
(a) the offence of rape and certain other sexual
5 offences that require the prosecution to prove
that the accused was aware that the victim
was not consenting or might not have been
consenting to a sexual act; and
(b) the use of jury directions on consent and on
10 the accused's awareness in trials relating to
charges for such offences.
561068B.I-21/8/2007 1 BILL LA INTRODUCTION 21/8/2007
Crimes Amendment (Rape) Bill 2007
s. 2
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day to be proclaimed.
(2) If this Act does not come into operation before
5 1 January 2008, it comes into operation on that
day.
3 Section 37 substituted
See: For section 37 of the Crimes Act 1958
Act No.
6231. substitute--
Reprint No. 19
10 as at "37 Jury directions
1 December
2006 and (1) If relevant to the facts in issue in a
amending
Act Nos proceeding the judge must direct the jury on
16/2004, the matters set out in sections 37AAA and
97/2005,
23/2006, 37AA.
48/2006,
15 50/2006 and (2) A judge must not give to a jury a direction of
32/2007. a kind referred to in section 37AAA or
LawToday:
www. 37AA if the direction is not relevant to the
legislation. facts in issue in the proceeding.
vic.gov.au
(3) A judge must relate any direction given to
20 the jury of a kind referred to in
section 37AAA or 37AA to--
(a) the facts in issue in the proceeding; and
(b) the elements of the offence being tried
in respect of which the direction is
25 given--
so as to aid the jury's comprehension of the
direction.".
561068B.I-21/8/2007 2 BILL LA INTRODUCTION 21/8/2007
Crimes Amendment (Rape) Bill 2007
s. 4
4 New sections 37AAA and 37AA inserted
After section 37 of the Crimes Act 1958 insert--
"37AAA Jury directions on consent
For the purposes of section 37, the matters
5 relating to consent on which the judge must
direct the jury are--
(a) the meaning of consent set out in
section 36;
(b) that the law deems a circumstance
10 specified in section 36 to be a
circumstance in which the complainant
did not consent;
(c) that if the jury is satisfied beyond
reasonable doubt that a circumstance
15 specified in section 36 exists in relation
to the complainant, the jury must find
that the complainant was not
consenting;
(d) that the fact that a person did not say or
20 do anything to indicate free agreement
to a sexual act at the time at which the
act took place is enough to show that
the act took place without that person's
free agreement;
25 (e) that the jury is not to regard a person as
having freely agreed to a sexual act just
because--
(i) she or he did not protest or
physically resist; or
30 (ii) she or he did not sustain physical
injury; or
561068B.I-21/8/2007 3 BILL LA INTRODUCTION 21/8/2007
Crimes Amendment (Rape) Bill 2007
s. 4
(iii) on that or an earlier occasion, she
or he freely agreed to engage in
another sexual act (whether or not
of the same type) with that person,
5 or a sexual act with another
person.
37AA Jury directions on the accused's
awareness
For the purposes of section 37, if evidence is
10 led or an assertion is made that the accused
believed that the complainant was consenting
to the sexual act, the judge must direct the
jury that in considering whether the
prosecution has proved beyond reasonable
15 doubt that the accused was aware that the
complainant was not consenting or might not
have been consenting, the jury must
consider--
(a) any evidence of that belief; and
20 (b) whether that belief was reasonable in
all the relevant circumstances having
regard to--
(i) in the case of a proceeding in
which the jury finds that a
25 circumstance specified in
section 36 exists in relation to the
complainant, whether the accused
was aware that that circumstance
existed in relation to the
30 complainant; and
(ii) whether the accused took any
steps to ascertain whether the
complainant was consenting or
might not be consenting, and if so,
35 the nature of those steps; and
(iii) any other relevant matters.".
561068B.I-21/8/2007 4 BILL LA INTRODUCTION 21/8/2007
Crimes Amendment (Rape) Bill 2007
s. 5
5 Rape
(1) For section 38(2)(a) of the Crimes Act 1958
substitute--
"(a) he or she intentionally sexually penetrates
5 another person without that person's
consent--
(i) while being aware that the person is not
consenting or might not be consenting;
or
10 (ii) while not giving any thought to whether
the person is not consenting or might
not be consenting; or".
(2) For section 38(4)(b) of the Crimes Act 1958
substitute--
15 "(b) while--
(i) being aware that the victim is not
consenting or might not be consenting;
or
(ii) not giving any thought to whether the
20 victim is not consenting or might not be
consenting.".
6 Compelling sexual penetration
For section 38A(3)(b) of the Crimes Act 1958
substitute--
25 "(b) while--
(i) being aware that the victim is not
consenting or might not be consenting;
or
(ii) not giving any thought to whether the
30 victim is not consenting or might not be
consenting.".
561068B.I-21/8/2007 5 BILL LA INTRODUCTION 21/8/2007
Crimes Amendment (Rape) Bill 2007
s. 7
7 Indecent assault
In section 39(2) of the Crimes Act 1958, for
"circumstances while being aware that the person
is not consenting or might not be consenting."
5 substitute--
"circumstances--
(a) while being aware that the person is not
consenting or might not be consenting;
or
10 (b) while not giving any thought to whether
the person is not consenting or might
not be consenting.".
8 Incest
For section 44(6A)(b) of the Crimes Act 1958
15 substitute--
"(b) while--
(i) being aware that the victim is not
consenting or might not be consenting;
or
20 (ii) not giving any thought to whether the
victim is not consenting or might not be
consenting.".
9 New section 609 inserted
After section 608 of the Crimes Act 1958
25 insert--
"609 Transitional provision--Crimes
Amendment (Rape) Act 2007
(1) An amendment made to this Act by section 3
or 4 of the Crimes Amendment (Rape) Act
30 2007 applies to any trial that commences on
or after the commencement of that Act,
irrespective of when the offence to which the
561068B.I-21/8/2007 6 BILL LA INTRODUCTION 21/8/2007
Crimes Amendment (Rape) Bill 2007
s. 10
trial relates is alleged to have been
committed.
(2) An amendment made to this Act by
section 5, 6, 7 or 8 of the Crimes
5 Amendment (Rape) Act 2007 applies only
to offences alleged to have been committed
on or after the commencement of that Act.
(3) For the purposes of subsection (1), a trial
commences on arraignment of the accused in
10 accordance with Subdivision (12) of
Division 1 of Part III.
(4) For the purposes of subsection (2), if an
offence is alleged to have been committed
between two dates, one before and one after
15 the commencement of the Crimes
Amendment (Rape) Act 2007, the offence
is alleged to have been committed before the
commencement of that Act.".
10 Repeal of Act
20 This Act is repealed on 1 January 2009.
561068B.I-21/8/2007 7 BILL LA INTRODUCTION 21/8/2007
Crimes Amendment (Rape) Bill 2007
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561068B.I-21/8/2007 8 BILL LA INTRODUCTION 21/8/2007
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