The offence of rape occurs where a person has sexual intercourse, or continues to have sexual intercourse, with another person without the consent of that person (or continuing where consent has been withdrawn), either knowing that there is no consent or being recklessly indifferent about that consent.
It is rape even where the victim says that they do not consent, even if they do not physically resist.
It is also rape where a person compels another to engage in, or to continue to engage in sexual intercourse with a person other than the offender; or an act of self penetration; or an act of bestiality, either knowing that there is no consent or being recklessly indifferent about that consent.
Maximum penalty:life imprisonment.
[s 48 Criminal Law Consolidation Act 1935 (SA)]
The Criminal Law Consolidation Act 1935 s 5 defines sexual intercourse to include (whether heterosexual or homosexual):
This definition recognises the harm that can be done by inserting objects into the vagina or anus. The inclusion of penetration of body parts other than the vagina to rape legislation recognises that there is not one specific type of sexual intercourse that is inherently more significant than another.
Consent to sexual activity is defined in s 46 of the Criminal Law Consolidation Act 1935 (SA) as free and voluntary agreement. The notion of consent has been notoriously difficult to define with the added complication that juries have been known to use it to distinguish between what they regard as acceptable or unacceptable sexual practice.
In this context the legislation has been rewritten to provide a more comprehensive definition of what not having consent actually means.
Under section 46 a person is taken not to freely and voluntarily have agreed to sexual activity if:
Reckless indifference to consent
A person is guilty of rape if he or she knows that the other person does not consent (or has withdrawn their consent) or is recklessly indifferent as to whether the other person has consented. Reckless indifference in the context of sexual offences means a failure on the part of the accused to consider the other person’s wishes, they have utter disregard as to whether or not they have consented (or withdrawn consent).
Under s 47 of the Criminal Law Consolidation Act 1935 (SA) a person will be found to be recklessly indifferent to the fact of consent (or withdrawal of consent) if he or she:
Even where an accused was intoxicated at the time the offending occurred, he or she will be guilty of rape provided intent to commit the offence can be shown [see further s 268 (2) Criminal Law Consolidation Act 1935 (SA)].
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