skip to content

Refine results

Search by

Search by Algolia
     

    Rape

    Consent to sexual activity

    The offence of rape occurs when a person (the accused) has, or continues to have, sexual intercourse with another person (the victim) who does not consent or has withdrawn consent [Criminal Law Consolidation Act 1935 (SA) s 48(1)]. The accused must know that the victim does not consent or be recklessly indifferent to the lack of consent.

    It is also rape when an accused compels a victim to engage in, or continue to engage in:

    • sexual intercourse with someone other than the accused
    • an act of sexual self-penetration, or
    • an act of bestiality

    either knowing that there is no consent or being recklessly indifferent about the lack of consent [s 48(2)].

    The maximum penalty for rape is life in prison.

    The Criminal Law Consolidation Act 1935 (SA) defines sexual intercourse to include (whether heterosexual or homosexual):

    • penetration of the vagina, labia majora, or anus by any part of the body of another person or by any object
    • fellatio
    • cunnilingus.

    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

    Consent in the Criminal Law Consolidation Act 1935 (SA) is defined in relation to sexual activity rather than sexual intercourse. Sexual activity includes sexual intercourse [s 46(1)].

    Consent to sexual activity means free and voluntary agreement [s 46(2)]. 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.

    To address this, s 46(3) expands upon the definition of consent to clarify that a person is taken not to freely and voluntarily agree to sexual activity if:

    • the victim agrees because there has been force applied (including an express or implied threat of force to the victim or to another person) or because of a threat to denigrate, humiliate, disgrace or harass the victim or another person
    • the victim is unlawfully detained at the time of the activity
    • the activity occurs while the victim is asleep or unconscious
    • the activity occurs while the victim is intoxicated to the point of being incapable of freely and voluntarily agreeing
    • the activity occurs while the victim is affected by a physical, mental or intellectual condition or impairment such that they are incapable of freely or voluntarily agreeing
    • the victim is unable to understand the nature of the activity
    • the victim agrees to engage in the activity with a person under a mistaken belief as to the identity of that person
    • the person agrees to engage in the activity because of a misrepresentation (whether express or implied) as to the use of a condom during the activity
    • the person is mistaken about the nature of the activity (for example, a person is taken not to freely and voluntarily agree to sexual activity if they agree to engage in the activity in the mistaken belief that the activity is necessary for the purposes of medical diagnosis, investigation or treatment, or for the purpose of hygiene).

    Reckless indifference to consent

    An accused is guilty of rape if they know that the victim does not consent (or has withdrawn their consent) or is recklessly indifferent as to whether the victim has consented. Reckless indifference in the context of sexual offences means a failure on the part of the accused to consider the victim’s wishes, or utter disregard as to whether or not they have consented (or withdrawn consent).

    Under s 47 of the Criminal Law Consolidation Act 1935 (SA), an accused is recklessly indifferent to the lack or withdrawal of consent if they:

    • are aware of the possibility that the victim might not be consenting but decide to proceed regardless of that possibility, or
    • are aware of the possibility that the victim might not be consenting but fail to take reasonable steps to ascertain whether the victim does in fact consent before proceeding, or
    • do not give any thought to whether or not the victim is consenting.

    An accused who was intoxicated at the time of the conduct may nevertheless be found guilty of rape [see Criminal Law Consolidation Act 1935 (SA) s 268].

    Rape  :  Last Revised: Tue Oct 13th 2026
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.

    We embrace diversity and welcome all people, irrespective of culture, faith, sexual orientation and gender identity.


    South Australia flag     Aboriginal icon     Torres Straight icon     LGBT icon     Disability icon   Disability icon

    Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.

           Connect with us

    • Facebook icon
    • Twitter icon
    • YouTube
    • LinkedIn