Rape, The Mental Element and Consistency in the Codes

Abstract

This article explores the mental element in rape in Australia. It briefly examines the position in the common law jurisdictions, which require mens rea, and the code jurisdictions, which do not. Although the Northern Territory (NT) is a code jurisdiction the approach to the offence of sexual intercourse without consent fits more appropriately with the common law states since the decision in DPP (NT) v WJI (2004) 219 CLR 43. This article examines the reasons for the High Court favouring an approach similar to common law in the NT. It will also explore whether the decision in DPP (NT) v WJI (2004) 219 CLR 43 might affect the law in the other state codes and whether there should be any change in the code approach to this offence.