Where the Crown relies on the circumstances in s 36(a)–(c) of the Crimes Act 1958 (Vic) (submission because of force, fear of force, fear of harm, or unlawful detention), proof that the accused was aware of those circumstances is sufficient to establish the mental element of rape under s 38, because the causal language 'because of' makes awareness of those circumstances incompatible with a belief in free agreement. R v Getachew does not preclude this analysis because it concerned s 36(d) (sleep), which lacks the causal connection requirement.
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