Reckless Rape in Victoria

24 Pages Posted: 4 Nov 2009 Last revised: 8 Nov 2012

See all articles by Dale Smith

Dale Smith

University of Melbourne - Law School

Date Written: November 7, 2012


In this article, I distinguish three types of recklessness – ‘inadvertence recklessness’, ‘indifference recklessness’ and ‘possibility recklessness’ – and examine whether each of these is, and should be, sufficient to satisfy the fault element for rape. I suggest that these three states of mind are not always properly distinguished. For example, while inadvertence recklessness is now sufficient to satisfy the fault element in Victoria, it is unclear whether indifference recklessness is sufficient, precisely because the Victorian Parliament did not carefully distinguish between these two states of mind. However, I argue, both indifference recklessness and inadvertence recklessness should be sufficient to satisfy the fault element for rape. By contrast, I contend that possibility recklessness is much more problematic than is generally realised, before suggesting a way in which the problems I identify could be alleviated.

Keywords: recklessness, rape, consent, possibility recklessness, indifference recklessness, inadvertence recklessness

JEL Classification: K1, K14, K4, K42, K49

Suggested Citation

Smith, Dale, Reckless Rape in Victoria (November 7, 2012). Melbourne Univeristy Law Review, Vol. 32, p. 1007, 2008, Monash University Legal Studies Research Paper No. 2009/12, Available at SSRN:

Dale Smith (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010

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