Suggestions on reform of the law of rape in South Australia

Essay by shavironica March 2005

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The law of rape in South Australia is governed by the common law and the Criminal Law Consolidation Act 1935 SA. Recently, there have been inquiries as to the low conviction rate for sexual assault offences (1.8 per cent of reported rape cases against adult women resulted in convictions in 2002), which might indicate the insufficiency of law in this area .

There are many reasons for the low conviction rate. Among all, emphasis will be put on the steps to establish a conviction. That is, the requirement for the prosecution to prove beyond reasonable doubt. In South Australia, the current law requires the finding of fault (mens rea) on the part of the accused. Consequently, it has been argued among commentators that it is very difficult, if not impossible, to establish the mens rea requirement. Also, controversies arise in the process of finding mens rea.

In the face of this, it is suggested that the approach of strict liability should be adopted.

An offence is a strict liability offence if the Crown only has to prove that physical elements (actus reus) of the offence have taken place. The Crown does not have to prove any fault element, such as a particular intention or awareness on the part of the accused . Obviously, the adoption of strict liability would be more favourable to the complainants. But should the law change? In the following sections, the current law of rape in SA, Queensland, Victoria and New South Wales will be focused, together with some law reform commitment in other jurisdictions outside SA.

Current law in South Australia

According to s.48 Criminal Law Consolidation Act 1935,

A person who has sexual intercourse with another person without the consent of that other person

a) knowing that that other person does not consent...