Updated: Feb 24
The offence of Sexual Assault is 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 old offence, the test of whether conduct was indecent was adjudged according to community standards of decency. Whether conduct was or was not indecent depended upon the particular circumstances of the case.
The offence of Sexual Assault leaves less to interpretation and provides statutory definitions of sexual touching and consent.
To secure a conviction against an accused, the prosecution must prove beyond reasonable doubt the following elements.
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.
How is sexual touching defined under the Act?
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.
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:
(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.
Penalties for Sexual Assault
Under Section 40 of the Act, a person found guilty of sexual assault is liable to a term of 10 years imprisonment (maximum penalty).
Sentencing Outcomes for Sexual Assault
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%
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.
Prepare early and get advice.
The offence of Sexual Assault is a serious offence. Early preparation is key to enhancing the prospects of a successful defence. Should you have to confront an allegation of this nature, call our office on (03) 9668 7600 and we can provide a case assessment for you.
Written by Shaun Pascoe, Director, Pascoe Criminal Law.