NCJ Number
74357
Date Published
1980
Length
17 pages
Annotation
The legal provisions with regard to rape under the Criminal Code of the Australian State of Tasmania are examined, and suggestions for reform are made.
Abstract
According to Tasmanian court decisions, rape involves the following essential ingredients: (1) that intentional penetration occurs, (2) that the female victim is not married to the offender, and (3) that the female victim did not consent to the act. The offender's honest and reasonable belief that the victim was consenting is considered a fact of exculpation or defense. Problems arising in relation to the actus reus of rape include the definition of 'carnal knowledge' and of 'consent,' and the lack of provisions with regard to a belated withdrawal of consent by the victim. Under the Tasmanian Criminal Code, spouse rape is only subject to punishment if it involves violence, unnatural carnal knowledge, or indecency. In addition to rape provisions, the code also provides against 'indecent assault'--an assault by a male upon a female accompanied by circumstances which to the juries' mind are indecent. Because of the greater flexibility in punishment, indecent assault may be used as an alternative conviction to the indictment of rape. As a result of the study the following reforms of the code are suggested: (1) abolishment of rape as a separate offense, (2) inclusion of rape within the offense of indecent assault, (3) requirement that the accused establish the existence of reasonable grounds for assuming the victim's consent, (4) a broader definition of consent, (5) the extension of criminal liability to persons of both sexes for indecently assaulting their spouse, and (6) extension of the judge's sentencing discretion. The article includes 37 bibliographical notes and footnotes. For related papers, see NCJ 74354.