| 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).
Sexual assault is a serious crime and an abuse of power. It is sexual behaviour that someone has not agreed to, where another person uses physical or emotional force against them. It does not always include physical harm. Sexual assault carries a maximum of 10 years’ imprisonment and is set out under s40 of the Crimes Act 1958 (Vic). We [Dinesh Weerakkody of DLegal] is a defence counsel. You can contact us to book an appoint for a consultation via the appointment booking link on this web site. |
If anyone is in immediate danger or a crime is currently occurring, please call police on Triple Zero (000). You can also go to your local police station (External link) to report a crime.You can contact Centres Against Sexual Assault [CASA] for crisis care following a sexual assault.Call: 1800 806 292 Open: 24 hours a dayThe Victims of Crime Helpline 1800 819 817 can provide information, advice and support. |
On this page
Breaking: Police [Sex Crimes Squad] Fact Sheet of Dhanishka Gunathilaka
- Sexual assault [VIC]
- Checklist: Sexual Assault (From 1/7/15)
- What are The Penalties for Sexual Assault in Victoria
- Affirmative consent – ‘No room for victim-blaming’
- Stealthing
- Sentencing Outcomes for Sexual Assault in Victoria
- Defences to Sexual Assault
1. What is sexual assault?
CRIMES ACT 1958 – SECT 40 Sexual assault [VIC]
Sexual assault laws have been overhauled in Victoria to shift toward an affirmative consent model with better protections for victim-survivors of sexual assault.
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.
This charge can be used for cases involving sexual assault alleged to have been committed on or after 1/7/2015.
A sexual assault can happen as part of:
- family violence
- physical assault.
Threatening to sexually assault someone can be a crime.
Image-based abuse – the making of intimate images and videos and displaying them on the internet or sharing them via social media without a person’s permission or threatening to do so – can also be a crime.
The elements
To prove this crime, the prosecution must prove the following 4 elements beyond reasonable doubt:
One – the accused intentionally touched the complainant in the way alleged.
The first element relates to what the accused did. S/he must have intentionally touched the complainant. [If in issue, the prosecution must also prove that the accused did this act consciously, voluntarily and deliberately.
Two – the touching was sexual.
The second element that the prosecution must prove is that the touching was sexual.
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.
The law says that touching can be sexual because of the area of the body involved, of either the person being touched or the person doing the touching, such as the genital or anal area, or the buttocks or breasts.
Or the touching can be sexual because the person doing the touching wants to get or gets sexual gratification from the touching.
Finally, any other aspect of the touching, including the circumstances in which it happened, can also make the touching sexual.
The question of whether or not the touching was sexual is for you to decide.
In this case, the prosecution alleged that the touching was sexual because [ evidence and arguments]. [If relevant: The defence evidence and arguments]].
For this element to be met, the jury must be satisfied, beyond reasonable doubt, that touching was sexual.
Three – the complainant did not consent to the touching.
Consent is a state of mind. The law says that consent means free agreement. So the prosecution must prove that victim did not freely agree to being touched at the time.
How does the Act define consent?
Section 36 of the Act defines consent for the purposes of the offence provisions:
(1) For the purposes of Subdivisions (8A) to (8E), consent means free agreement.
(2) 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.
Four – the accused did not reasonably believe that the complainant consented to the touching.
The fourth element relates to the accused’s state of mind about the complainant’s consent. The prosecution must prove beyond reasonable doubt that at the time of the touching the accused did not reasonably believe that the complainant was consenting.
This fourth element will be met in any of the following circumstances;
- The accused believedthat the complainant was not consenting.
- The accused gave no thought to whether the complainant was consenting.
- Even if the accused may have believed that the complainant was consenting, this belief was not reasonable in the circumstances.
The law says that a belief in consent based only or stereotypes or preconceptions about the circumstances in which people consent to a sexual act is not a reasonable belief. It does not matter whether those stereotypes are based on any particular culture, religion or other influences.
If a belief in consent is based on a combination of matters including such a general assumption then, to the extent it is based on those general assumptions, it is not a reasonable belief.
In this case, the prosecution says that [identify relevant stereotype] is such a stereotype. If you consider that it is a stereotype, then it will not provide a basis for any belief in consent to be a reasonable belief. [If necessary, refer to relevant prosecution and defence arguments on this issue].
You must decide the case on the evidence, and not on assumptions or stereotypes about the circumstances in which people consent to a sexual act.
CRIMES ACT 1958 – SECT 40 Sexual assault [VIC]
CRIMES ACT 1958 – SECT 40
Sexual assault
(1) A person (A) commits an offence if—
(a) A intentionally touches another person (B); and
(b) the touching is sexual; and
(c) B does not consent to the touching; and
(d) A does not reasonably believe that B consents to the touching.
(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).
-
- 40(3)(4)repealed by No. 47/2016 s. 12(1).Note to s. 40 substituted as Notes by No. 47/2016 s. 12(2).
Notes
- An exception applies to this offence—see section 48A.
- A mistaken but honest and reasonable belief that the touching was not sexual is not a defence to this offence—see section 48B.
41 inserted by No. 74/2014 s. 4.
2. Checklist: Sexual Assault (From 1/7/15)
Touching
- Did the accused intentionally touch the complainant?
If Yes then go to 2
If No, then the accused is not guilty of Sexual Assault
Sexual
- Was the touching sexual?
Consider – What was the area of the body touched, did the accused get sexual gratification from the touching or did other circumstances make the touching sexual
If Yes then go to 3
If No, then the accused is not guilty of Sexual Assault
Sexual Assault Consent
- Did the touching occur without the complainant’s consent?
If Yes then go to 4
If No, then the accused is not guilty of Sexual Assault
The Accused’s State of Mind
- At the time of sexual touching, did the accused reasonably believe that the complainant was consenting?
4.1 Did the accused believe that the complainant was not consenting?
If Yes, then the accused is guilty of Sexual Assault (as long as you have answered yes to Questions 1, 2 and 3)
If No, go to 4.2
4.2 Did the accused not hold a belief that the complainant was consenting?
If Yes then the accused is guilty of Sexual Assault (as long as you have answered yes to Questions 1, 2 and 3)
If No, go to 4.3
4.3 Are you satisfied that even if the accused may have believed that the complainant was consenting, that this belief was not reasonable in the circumstances?
If Yes then the accused is guilty of Sexual Assault (as long as you have answered yes to Questions 1, 2 and 3)
If No, then the accused is not guilty of Sexual Assault
3. 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
4. Affirmative consent
The new laws, which passed in parliament in August 2022 as the Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022, have been designed to shift the scrutiny in sexual assault cases away from the victims and onto the perpetrators.
The amendments to the Crimes Act – which will become law in July 2023 and are similar to reforms that passed the NSW parliament – have received a mixed reception from legal experts and advocates.
In Victoria you also need to know about the changes to consent, stealthing and revenge porn.
The model will make it clear that everyone has a responsibility to get consent before engaging in sexual activity. For their belief in consent to be reasonable, a person must have taken steps by saying or doing something to find out if the other person consents – simply, it must be a clear and enthusiastic go-ahead.
This can include, but isn’t limited to verbally asking and getting a ”yes”, a physical gesture like a nod or reciprocating a move such as removing clothes.
Even if a person meets this minimum requirement to take steps, their belief in consent must still be reasonable in all the circumstances – for example taking into consideration if the steps went far enough, or if there were cues such as pushing away the accused’s hand or facial reactions.
The reforms will also clarify that circumstances where there is no consent to an act, including the removal, non-use or tampering of a condom – commonly referred to as ”stealthing” – without the other person’s consent is a crime.
The Bill also includes stronger laws to target image-based sexual abuse, which includes taking intimate videos of someone without their consent and distributing, or threatening to distribute, intimate images, including deepfake porn.
Under new “affirmative consent” laws in New South Wales (NSW) – where the alleged incident occurred – a person must say or do something to communicate their consent for sex. The NSW reforms, which came into effect in June 2022, also made “stealthing” – the removal of a condom without consent – a sexual assault offence.
A person consents to sexual intercourse if, at the time of the act of intercourse, [she/he] freely and voluntarily agrees to that act of intercourse. [s 61HI(1)] Consent can be given verbally or it can be expressed by actions. However, a person who does not offer physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity. [s 61HI(4)]
5. Stealthing
Stealthing refers to the non-consensual act of removing a condom during sexual activity without the awareness or consent of the other person or people involved.
6. 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%
Adjourned Undertaking/Discharge/Dismissal – 15.4%
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%
7. Defences to Sexual Assault
‘No room for victim-blaming’
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.
If the court finds that the accused held a reasonable belief that the complainant was consenting, it must find the accused not guilty. The court will consider all the circumstances of the alleged offence in assessing whether such a belief was reasonable in the circumstances.
Legislative exception
A legislative exception to the offence of sexual assault lies where the touching of a person is done in the course of a procedure carried out in good faith for medical or hygienic purposes. The onus is on the prosecution to prove, beyond a reasonable doubt, that the alleged offence was not done in good faith for medical or hygienic purposes (Section 48A).