Sexual violation by rape – offending alleged prior to 1986 (Section 128 Crimes Act 1961)

[Note: Before 1986, a man could not be convicted of rape in respect of intercourse with his wife. This was because a wife impliedly gives a general consent to marital intercourse on marriage: see R v Miller [1954] 2 QB 282 (QB). However, s 128(3) of the Crimes Act 1961 set out that a man could be convicted of rape against his wife if the consent had been revoked because of: (a) a separation order which was in force; or (b) a decree of judicial separation in force; or (c) a decree nisi of divorce in force. If one of these exceptions is said to apply, the relationship status of the parties may first need to be determined.]

Charge 1: Sexual violation by rape under section 128 of the Crimes Act 1961 where the offending allegedly occurred prior to 1986

The Crown must prove each element of the offence. That is called the burden of proof. The Crown carries that burden. Also, the Crown must prove each element beyond reasonable doubt. That is called the standard of proof. It means you must be sure that each element is proved.

1.	Are you sure that Mr Smith had sexual intercourse with Ms Jones on 1 January 1980?
	Sexual intercourse is complete once penetration occurs. If no, find Mr Smith not guilty. If yes, go to question two.
2.	Are you sure that Ms Jones did not consent to the sexual intercourse with Mr Jones?
	“Consent" means consent freely given by a person who is in a position to make a rational decision. Lack of protest or physical resistance does not, of itself, amount to consent. If no, find Mr Smith not guilty. If yes, go to question three.
3.	Are you sure that Mr Smith did not genuinely believe that Ms Jones was consenting?
	Mr Smith’s belief in consent must have been genuine, but it does not need to have been based on reasonable grounds. If no, find Mr Smith not guilty. If yes, find Mr Smith guilty.