37BGuiding principles

37B Guiding principles

It is the intention of Parliament that in interpreting and applying Subdivisions (8A) to (8G), courts are to have regard to the fact that—

(a) there is a high incidence of sexual violence within society; and

(b) sexual offences are significantly under‑reported; and

S. 37B(c) amended by No. 47/2016 s. 7.

(c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment or mental illness; and

(d) sexual offenders are commonly known to their victims; and

(e) sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.

Pt 1 Div. 1 Subdiv. (8A) (Heading) substituted by No. 47/2016 s. 8.

Pt 1 Div. 1 Subdiv. (8A) (Heading and ss 47–50) inserted by No. 9509 s. 5 amended by No. 10079 s. 8(1), substituted as Pt 1 Div. 1 Subdiv. (8A) (Heading and ss 40–43) by No. 8/1991 s. 3, substituted as Pt 1 Div. 1 Subdiv. (8A) (Heading and ss 38, 39) by No. 81/1991 s. 3 amended by Nos 49/1991 s. 119(3)(Sch. 3 item 1) (as amended by No. 81/1991 s.10(Sch. item 3.1)), 41/1993 s. 20, 48/1997 s. 60(1)(Sch. 1 items 19, 20), 67/2000 s. 4, 2/2006 ss 6, 7, 57/2007
ss 5–7, substituted as Pt 1 Div. 1 Subdiv. (8A) (Heading and ss 37C–43) by No. 74/2014 s. 4.

(8A) Rape, sexual assault and associated sexual offences

Ss 37C–37G inserted by No. 74/2014 s. 4, repealed by No. 47/2016 s. 9.

S. 37H inserted by No. 74/2014 s. 4, amended by No. 20/2016 s. 144, repealed by No. 47/2016 s. 9.

S. 38 substituted by No. 74/2014 s. 4.

38 Rape

(a) A intentionally sexually penetrates another person (B); and

(b) B does not consent to the penetration; and

(c) A does not reasonably believe that B consents to the penetration.

Note to s. 38(2) inserted by No. 65/2016 s. 20(12), repealed by No. 34/2017 s. 26(1).

S. 38(3) repealed by No. 47/2016 s. 10(1), new s. 38(3) inserted by No. 34/2017 s. 26(2).

(3) The standard sentence for an offence against subsection (1) is 10 years.

Note to s. 38 inserted by No. 47/2016 s. 10(2), substituted as Notes by No. 34/2017 s. 26(3).

1 An exception applies to this offence—see section 48A.

2 See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.

3 An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.