In search of a model provision for rape in Australia

The purpose of this article is to set out a comprehensive model provision for the crime of rape (or the equivalent offence) that can be incorporated into all Australian criminal jurisdictions irrespective of whether the particular legislation can be broadly categorised as being a code or a statute. This is in part achieved by defining the specified fault elements, such as knowledge and recklessness, within the provision, thereby overcoming the lack of such definitions in the entire code or statute in some jurisdictions. Given that only the Australian Capital Territory and the Northern Territory have adopted Chapter 2 of the Criminal Code 1995 (Cth), which contains all the general principles of criminal responsibility that apply to any offence, uniform criminal law reform in Australia has stalled. One objective of this article is to show that it is possible to reform key criminal offences in a uniform manner. Apart from addressing the current inconsistencies in rape provisions in Australia, the proposed model provision is also designed to clarify the vexed question of whether the defendant reasonably believed the victim was consenting. In this way, it is hoped that some of the well-known difficulties in securing a conviction for rape — where it is often one person’s word versus another’s against a standard of proof of beyond reasonable doubt — may be reduced through the comprehensiveness and clarity of the statutory language employed in the model provision