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S.38 of the crimes act - Critically assess this proposal in terms of its likely impact on (a) What the prosecution is required to prove; and (b) Current problems with rape trials in Victoria.
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It is proposed to replace the current s.38 of the Crimes Act (Victoria) with the following definition of rape: s.38 A person commits rape if - (a) He or she intentionally sexually penetrates another person without that person's consent and (b) (i) Is aware that the person is not consenting or might not be consenting; (ii) A reasonable person would, in all the circumstances, have been aware that the person was not consenting or might not be consenting. Critically assess this proposal in terms of its likely impact on (a) What the prosecution is required to prove; and (b) Current problems with rape trials in Victoria. At common law, the crime of rape appears to have required the application of unlawful and felonious violence against the will of the victim and completed sexual intercourse by force (Rush P & Yeo S, 2000). Over the years however, these essential elements have been modified, and the common...
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