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Misconceptions about the legal definition of “rape” are common in Melbourne and elsewhere in Australia. One such misconception is illustrated in a recent headline in The Guardian: “Homeless women in Melbourne raped and abused by men who offer shelter.”
When you read the news report, you will find that it focuses on men who take advantage of homeless women by offering them accommodation in exchange for sexual services. That behaviour is deplorable but it is not rape.
In Victoria, the rape of an adult is the intentional sexual penetration of another person without that person’s consent. The absence of consent is a crucial element of the offence. A rape occurs only if the offender was aware that no consent had been given or was indifferent to the question of consent.
While the Guardian story makes repeated references to rape, most of the examples that the story cites suggest consent was given. According to the news report:
To be sure, homeless women are particularly vulnerable to sexual assaults, and the story does refer to women who say they were assaulted and abused. But the story’s primary point, that seeking sex in exchange for a place to sleep constitutes rape, is just not true.
The law in Victoria defines consent as a “free agreement.” There may therefore be situations in which a woman agrees to sex but has not consented to it because her agreement was not freely given.
In all of these examples, free will is overcome by threats, coercion, or deception, or by circumstances that prevent someone from making a conscious choice.
A homeless person who agrees to trade sex for a place to sleep is making a conscious choice. It may not be a pleasant choice, but it is a choice that the homeless person regards as preferable to sleeping rough. Provided that the person offering a bed does not threaten, detain, or deceive the person to whom the bed is offered, conditioning the offer on sex is not a rape.
It bears repeating that taking sexual advantage of a homeless person should not be condoned. At the same time, headline writers should not level serious charges of rape to describe bad behaviour that falls short of a sexual assault. A man who is accused of rape because he had sex with a homeless woman who freely agreed to that arrangement should seek legal assistance to challenge the unjust accusation.
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.