A person will be guilty of the offence of rape if they have sexual intercourse with another person without the consent of that person or if they knew that the person was not consenting or they were recklessly indifferent as to whether that other person consents.
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Major indictable offence
District Court of South Australia
Maximum penalty of life imprisonment
Rape Key Facts
| Offence | Sexual intercourse with another person without consent and knowing or being reckless as to the lack of consent, under Section 48 of the Criminal Law Consolidation Act 1935 (SA). |
| Maximum Penalty | Maximum penalty is life imprisonment due to the seriousness of the offence. |
| Typical Sentence | Sentences are almost always custodial, with significant prison terms (often several years to decades) depending on the circumstances and aggravating factors. |
| Which Court? | This matter will be heard in the District Court of South Australia. |
| Process Timeline | Complaint → Police Investigation → Arrest → Police Interview → Bail Consideration (bail may be refused) → Committal in Magistrates Court → Trial in District/Supreme Court → Sentencing if found guilty. (Average: 12-24 months) |
| Possible Defences | It may be a defence to the charge if you had consent. |
| What The Prosecution Must Prove | The prosecution must prove that sexual intercourse took place, - without consent - knowing there was no consent; or - recklessly indifferent to consent |
Rape Case Scenarios
Below are examples of how rape may be charged and sentenced in South Australia. These examples are not indicative of a specific outcome and are for informational purposes only.
Low-Level Offence
Mid-Level Offence
Aggravated Offence
Low-Level Offence
Scenario:
An individual is alleged to have engaged in sexual intercourse without consent. The alleged victim was an adult and not under the influence of drugs or alcohol, and the allegation does not involve aggravating circumstances.
What to expect:
Rape is treated as a serious offence with a maximum penalty of life imprisonment. Even for a single alleged incident without aggravating circumstances, courts will often impose a prison sentence, though the term may be shorter where there are mitigating factors such as no prior record or an early guilty plea.
Mid-Level Offence
Scenario:
A person is alleged to have engaged in sexual intercourse without consent, where the alleged adult victim was heavily intoxicated at the time.
What to expect:
Allegations involving heavily intoxicated victims are treated seriously due to the vulnerable nature of the victim. Prison sentences commonly in the range of 6-12 years, with non-parole periods often between 3 and 7 years, depending on the seriousness of the conduct and any prior convictions have been imposed.
Aggravated Offence
Scenario:
An individual is alleged to have engaged in sexual intercourse without consent while on bail, during which a weapon was used to threaten the alleged victim.
What to expect:
If convicted, the offender will receive a lengthy term of imprisonment, typically exceeding 10 years. The combination of multiple aggravating factors including breaching bail and using a weapon means a sentence at the upper end of the scale.
Disclaimer: The examples above are provided for informational purposes only and do not guarantee a specific result in your matter. Sentencing decisions can vary significantly depending on individual circumstances, including the severity of the offence, intent, prior criminal history and other legal factors. For case-specific advice, get in touch with one of our expert criminal lawyers.
Our Results For Similar Offences
To view our past case results, please click the links below:
Rape, Indecent Assault and Assault
Rape, Indecent Assault and Assault
Persistent Exploitation of a Child
Persistent Exploitation of a Child
Indecent Assault
Indecent Assault
Removal of Reporting Conditions Under the Child Sex Offenders Register Act
Removal of Reporting Conditions Under the Child Sex Offenders Register Act
Possession of Child Pornography
Possession of Child Pornography
Rape FAQ’s
If you need more information about rape in South Australia, these FAQs answer the most common questions.
What counts as aggravating circumstances in rape cases?
Aggravating factors include the use of violence or threats, the involvement of a weapon, acting in company, breaching bail or court orders, or where the victim is under 14 years of age. These push penalties toward the upper end of the scale.
What constitutes sexual intercourse under South Australian rape laws?
Sexual intercourse includes:
- Penetration of the vagina, anus or labia majora by a body part or object,
- Oral sex (fellatio or cunnilingus),
- Any continuation of such acts after consent is withdrawn.
This definition applies regardless of gender and includes object insertion.
What is meant by ‘recklessly indifferent to consent’?
A person is recklessly indifferent if they:
- Know there’s a possibility the other person isn’t consenting,
- Proceed without taking steps to check for consent,
- Or fail to even consider whether the person is consenting.
This legal test is set out under section 47 of the Act.
Can rape charges apply if consent was withdrawn during intercourse?
Yes. It is rape to continue sexual intercourse after consent has been withdrawn, and the offender knows or is recklessly indifferent to that withdrawal.
What does South Australian law say about ‘consent’ in sexual offences?
Under section 46, consent must be free and voluntary agreement. A person does not consent if:
- There’s coercion, force, or threats,
- They are asleep, unconscious, intoxicated, impaired, or misled,
- There’s a mistaken belief about identity or use of protection.
Is it rape if the victim didn’t physically resist?
Yes. In South Australia, lack of physical resistance is not required. If there’s no freely given agreement, it may still be rape.
Can intoxication be used as a defence to rape in South Australia?
No. Being intoxicated does not excuse rape, as long as intent to commit the act can be shown. This is confirmed under section 268(2) of the Criminal Law Consolidation Act.
Can rape involve an object, not just a body part?
Yes. Penetration of the vagina or anus by any object, without consent, can amount to rape under South Australian law.
Is it rape if someone lies about using a condom?
Yes. From 8 March 2023, lying about condom use or removal of a condom without consent (‘stealthing’) may invalidate consent, potentially leading to rape charges.
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