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accused) has, or continues to have, sexual intercourse with another person (the victim) who does not consent or has withdrawn consent [Criminal Law Consolidation Act 1935 (SA) s 48(1)].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:
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):
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 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:
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An accused is guilty of rape if they know that the victim does not consent (or has withdrawn their consent) or is recklessly indifferent as to whether the victim has consented.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part of the accused to consider the victim’s wishes, or utter disregard as to whether or not they have consented (or withdrawn consent).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:
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].