Section 40 of the Crimes Act 1958 punishes the crime of assault with intent to rape with imprisonment of up to 10 years. The same law punishes the act of threatening assault with intent to rape.
A perusal of Section 40 of the Crimes Act 1940 shows that the crime primarily being punished is actually the act of assaulting another person. However, the difference with Section 40 from other types of assault offences is that the offender’s intention is not primarily to injure, resist arrest or perform an indecent act but to commit rape against the offended party.
Section 40 provides that the assault being referred to is found in Section 31(1). The most applicable definition of assault under Section 31 (1) that can be related to Section 40 is that which provides that a person commits the crime of assault if he assaults or threatens to assault another person with intent to commit an indictable offense. In relation to Section 40, the indictable offense that is intended to be committed is rape.
There is a need therefore to also look into the crime of rape as punished under the jurisdiction of Victoria. Rape is the unlawful sexual penetration of the vagina, mouth or anus by a penis, finger, tongue or any other object.
In Section 40 there is no consummated rape because otherwise the offence would fall under the crime of rape and not under assault. However, in order for an accused to be convicted under Section 40 the police must prove that the acts of assault clearly show that there is an intention to rape the offended party.
An integral element of rape is the lack of consent of the offended party. Hence, the assault that was committed with the intention to commit rape must be without the consent of the offended party.
The offender can argue that the sexual acts were committed with the consent of the offended party. This type of criminal charge can be won or lost depending on whose version of the story is believable.
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