Sexual assault is an indictable offence, and is prosecuted under the Crimes Act 1958 (Vic).
The offence is often heard in the Magistrates' Court, but where there are aggravating features the offence will be prosecuted in the the County Court.
Sexual Assault is an indictable offence prosecuted under Section 40 of the Crimes Act 1958 (Vic) (The Act). Sexual assault replaced the previous offence of Indecent Assault (Crimes Amendment (Sexual Offences) Act 2016).
Under the previous offence of Indecent assault, the test of whether the conduct was indecent was adjudged according to community standards of decency.
The offence of Sexual Assault leaves less to interpretation and provides statutory definitions of sexual touching and consent, which we describe below.
Table of Contents
What is Sexual Assault?
The prosecution must prove beyond reasonable doubt the following elements.
Sexual Assault - what the prosecution must prove:
A person (A) intentionally touches another person (B) and
the touching is sexual; and
B does not consent to the touching; and
A does not reasonably believe that B consents to the touching.
Key definitions for Sexual Assault:
'touching'
Section 35B provides that touching may occur:
With any part of the body.
With anything else.
Through anything, including anything worn by the person doing the touching or by the person touched.
'sexual touching'
Under 35B(2) touching is sexual due to:
(a) the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or
(b) the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or
(c) any other aspect of the touching, including the circumstances in which it is done.
How does the Act define consent?
Section 36 of the Act defines consent for the purposes of the offence provisions:
For the purposes of Subdivisions (8A) to (8E), consent means free agreement.
Circumstances in which a person does not consent to an act include, but are not limited to, the following:
(a) the person submits to the act because of force or the fear of force, whether to that person or someone else.
(b) the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal.
(c) the person submits to the act because the person is unlawfully detained.
(d) the person is asleep or unconscious.
(e) the person is so affected by alcohol or another drug as to be incapable of consenting to the act.
(f) the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act.
What are The Penalties for Sexual Assault in Victoria
Under Section 40 of the Act, a person found guilty of sexual assault is liable to a term of 10 years imprisonment (maximum penalty).
Sexual Assault of a child under 16 can result in an Order under the Sex Offenders Register
Sexual assault of a child under 16 is a class 2 offence and will result (upon conviction/finding of guilty) in a registration order of 8, 15 years or life reporting depending upon the particulars of the case. To read our article on the Sex Offenders Register.
Sentencing Outcomes for Sexual Assault in Victoria
The criminality underlying an allegation of sexual assault can vary greatly between cases.
As a guide to sentencing outcomes in the Magistrates' Court, the Sentencing Advisory Council published the sentencing statistics for this offence during the period 1 July 2016 - 30 June 2019:
Imprisonment - 26.2%
Community Correction Order - 40.6%
Fine - 17.4%
Where a child was the victim (Sexual Assault of a Child Section 49D of the Act) for the same period, the outcomes were as follows:
Imprisonment - 46.0%
Community Correction Order - 35.1%
Fine - 5.4%
Adjourned Undertaking/Discharge/Dismissal - 10.8%
Defences to Sexual Assault
For any allegation of Sexual Assault, the prosecution must prove each element of the offence.
Consequently, a factual dispute may arise as to whether an accused did in fact "touch" the complainant, or if the accused did touch whether the touching was relevantly "sexual" having regard to the definitions contained under Section 35B.
Where the complainant is an adult, a defence may also turn on whether consent was given as defined under Section 36.
Conclusion
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