Over the last 10 years, but most particularly since the Royal Commission into Institutional Responses to Sexual Assault and the advancement of technology, the law surrounding offences of a sexual nature has become increasingly complex and all encompassing.
Sex offences, by nature, range from non-contact offences, such as the Commonwealth Offences of ‘grooming’, through to the most serious forms of physical/sexual assault. Of recent times, the legislature has had to also address the issue of ‘sexting’, the proliferation of pornographic images without consenting (referred to as ‘revenge porn’) and the dissemination of illegal pornography over the internet.
Matters involving rape, sexual assault and incest are among the most sensitive, intricate and complex of criminal cases. For those contesting charges involving sexual violence, their experience of the criminal justice system can be difficult and overwhelming.
By virtue of their very nature, alleged sex offences (if they in fact occurred) are rarely witnessed by anyone other than the complainant and the offender. If the alleged offence was not immediately reported, there may be no independent evidence of its occurrence (i.e. in the form of forensic evidence). It is well recognised that there are a variety of reasons why complainants of sexual offences do not immediately report matters. Statistically, most complainants are sexually assaulted by someone that they know and there are very personal reasons why reporting the allegations may have a devastating effect on the complainants life, family and community. It is also recognised that it is our most vulnerable who are targeted, such as children, the disadvantaged, those working in the sex industry and the elderly.
However, the privacy within which these allegations arise also pose difficulties for those contesting allegations because the Crown case usually relies exclusively on the evidence on the complainant. It is very difficult for a defendant to try to prove that something did not occur, particularly if the allegations are historical and evidence relevant to the timing within which the alleged offences are said to have occurred has been lost.
Where the complainant is a child or a person with a cognitive impairment, special laws operate in Victoria, which tailor proceedings and make the defence of accused persons even more challenging and involved.In such cases, sensitivity and experience are required to not only vigorously defend the charges, but also to reduce the trauma and anxiety experienced by the parties to the proceedings. In our experience, a strategic defence is required, stemming from extensive preparation and a superior knowledge of the laws of evidence.We regularly retain experienced and dynamic Barristers who specialise in this jurisdiction. It goes without saying that all matters are dealt with in the strictest of confidence and with the utmost consideration.
There are many different sexual offences proscribed in the legislation and it would be impractical to describe each of them in this section. However, some of the more commonly prosecuted sexual offences are detailed below, along with the relevant provisions and sentences. If you are charged with any sexual offence, it is crucial that you obtain legal advice in relation to your charges. Please visit our contact us page and make an appointment with one of our experienced criminal lawyers.
On 1 July 2015, the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 came into effect which now affects the law in relation to sex offences. Accordingly, we have divided the relevant sections of this page into pre- 1 July 2015 offences and post- 1 July 2015. However, in relation to all offences, it will no longer be a defence to any child sex offence that the accused was, or honestly believed that they were, married to the alleged victim. These amendments are modeled on the existing law in the United Kingdom, Wales, New South Wales and New Zealand.
On 1 July 2017, new sex offences were added to the Crimes Act (between sections 48 and 50) through the introduction of the Crimes Amendment (Sexual Offences) Act 2016, which expanded the number of state offences and also mirrors the Commonwealth Jurisdiction. These offences have been summarised in this page and are most particularly relevant to circumstances where it is alleged that a person in authority becomes aware of child sexual abuse and does not protect the child and where a person facilitates the sexual abuse of a child but is not an active participant.
Rape – pre- 1 july 2015
Pursuant to section 38 of the Crimes Act, it is an offence to commit rape, which offence is punishable by a maximum sentence of 25 years imprisonment.
A person commits the offence of rape if:
(a) he or she intentionally sexually penetrates another person without that person’s consent
- while being aware that the person is not consenting or might not be consenting; or
- while not giving any thought to whether the person is not consenting or might not be consenting; or
(b) after sexual penetration he or she does not withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting.
A person also commits rape if he or she compels a person—
- to sexually penetrate the offender or another person, irrespective of whether the person being sexually penetrated consents to the act; or
- who has sexually penetrated the offender or another person, not to cease sexually penetrating the offender or that other person, irrespective of whether the person who has been sexually penetrated consents to the act.
It is a related offence, pursuant to section 38A to compel another to take part in an act of penetration, of either themselves or another person. It is also punishable by a term of 25 years imprisonment.
In certain cases, rape can be one of the most difficult charges to come before the Courts because the issue of consent and the accused’s awareness of the absence of consent is fraught with legal complexity. It is imperative that before engaging in records of interview with the police or responding to any allegations of rape, an accused person obtains comprehensive legal advice.
Rape – post- 1 july 2015
A person commits the offence of rape if –
(a) that person intentionally sexually penetrates the alleged victim;
(b) that alleged victim does not consent to the penetration; and
(c) that person does not reasonably believe that the alleged victim consents to the penetration.
Sexual penetration is defined in the new Section 37D of the Crimes Act. The new section 34C of the Crimes Act lists circumstances where a person is presumed not to consent for the purposes of the act, which include:
- the alleged victim submits because of force or the fear of force to themselves or someone else;
- the alleged victim submits because of fear of harm or any time, whether to themselves, someone else or an animal;
- the alleged victim submits because they are unlawfully detained;
- the alleged victim is asleep or unconscious;
- the alleged victim is so affected by alcohol or another drug as to be incapable of consenting to the act;
- the alleged victim is incapable of understanding the sexual nature of the act;
- the alleged victim is mistaken about the identity of any person involved in the act;
- the alleged victim mistakenly believes that the act is for medical or hygienic purposes; or
- if the act involves an animal, the alleged victim mistakenly believes that the act is for veterinary, agricultural or scientific research purposes.
Whether a person has a reasonable belief in consent depends on the circumstances under the new provisions. However, consideration of these circumstances will include any steps that the accused person has taken to find out whether the alleged victim consents or, in the case of a charge of assault with intent to rape, whether the alleged victim would consent. Please refer to our ‘Assaults’ section for more information on the new charge of ‘Assault with intent to rape’.
In relation to circumstances where the accused is alleged to have been intoxicated at the time of the alleged offending and, accordingly, it is alleged that his or her belief in consent was affected, the amending Act has introduced section 37H specifically in relation to this issue. The section states that, where the intoxication is self-induced, regard must be had to the standard of a reasonable person who is not intoxicated and who is otherwise in the same position as the accused. Where the intoxication is not self-induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person and who is otherwise in the same position as the accused.
Sexual penetration of a person under 16 years (pre & post-july 2015)
Persons under the age of 16 years are incapable of consenting to sexual activity at law, except in certain circumstances (see below). Accordingly, even if a person under 16 has willingly and consciously engaged in sexual activity, they are still presumed to be incapable of consenting and an offence will have occurred. In these circumstances, the accused’s belief as to the age of the alleged victim is crucial and each case will hinge on its own facts.
In circumstances where the alleged victim is under 12 years, the maximum sentence is 25 years imprisonment. The Victorian Parliament has introduced a baseline sentence for this offence, which is fixed at 10 years. A baseline sentence is the median sentence, which Parliament dictates should be imposed on offenders.
In cases where the victim is between the ages of 12 and 16 years, the maximum sentence is 10 years imprisonment. This sentence is increased to 15 years imprisonment in circumstances where the alleged victim is between the ages of 12 and 16 years and they are under the care, supervision or authority of the accused. It is an offence to commit an act of sexual penetration with a 16 or 17 year old in circumstances where the alleged victim is under the care, supervision or authority of the accused.
Consent is not a defence to the charge unless:
- the accused satisfies the court on the balance of probabilities that he or she reasonably believed that the alleged victim was 16 years or older; or
- the accused was not more than two years older than the alleged victim.
If consent is raised as a defence by the accused, the Prosecution has the burden of proving a lack of consent. These offences must be determined in the County Court of Victoria.
As of 1 July 2017, offences of sexual penetration of a person under the age of 16 have been categorised to include an offence specific to sexual penetration of a child aged 16 or 17, but who is under care, supervision or authority: section 49C.
Indecent assault – pre- 1 july 2015
A person is guilty of this offence if the Prosecution proves beyond all reasonable doubt that they assaulted the alleged victim in indecent circumstances, whilst being aware that the alleged victim was not or might not have been consenting or in circumstances where they gave no thought to whether the alleged victim was or was not consenting. For an explanation of assault offences, please see our section on assault offences. Indecency is judged according to ordinary community standards. Accordingly, acts such as touching another person’s breasts or genitalia will be an indecent assault, if the accused is aware that the victim was not or might not have been consenting.
Sexual assault – post- 1 july 2015
From 1 July 2015, references to indecent assault will be abolished and replaced with sexual assault. Pursuant to the new section 40, sexual assault is constituted by the following:
(a) the accused intentionally touches the alleged victim; and
(b) the touching is sexual; and
(c) the alleged victim does not consent (refer to the “Rape – post- 1 July 2015″ of this page for circumstances where a person is deemed not to be consenting);
(d) the accused does not reasonably believe that the alleged victim consented to the touching. Whether a person has a reasonable belief in consent depends on the circumstances under the new provisions. However, consideration of these circumstances will include any steps that the accused person has taken to find out whether the alleged victim consents.
As of 1 July 2017, offences of sexual penetration of a person under the age of 16 have been categorised to include an offence specific to sexual assault of a child aged 16 or 17, but who is under care, supervision or authority: section 49E.
Sexual Assault by compelling sexual touching
Pursuant to the new section 41, a person commits this offence if –
(a) the accused intentionally causes the alleged victim to touch the accused, or themselves, or a third person, or an animal;
(b) the touching is sexual; and
(c) the alleged victim does not consent to the touching; and
(d) the accused does not reasonably believe that the alleged victim consents to the touching.
Touching is defined under the new section 37E of the Act.
Indecent act with a child under 16 – pre & post-1 july 2015
It is an offence for a person to wilfully commit or wilfully be a party to an indecent act with or in the presence of a person under 16 years of age.
Consent is not a defence to the alleged offending unless:
- the accused can satisfy the court (on the balance of probabilities) that they reasonably believed that the child was 16 years or older; or
- the accused was no more than 2 years older than the child at the time of the alleged offending.
Where consent is raised as an defence to the charge, the Prosecution has the onus of proving a lack of consent.
Sexual activity in the presence of a child
As of 1 July 2017, the Victorian law changed to introduce offences involving sexual activity in the presence of a child, in circumstances where the child was not a direct victim of the sexual activity. The offence is made out in circumstances where the alleged offender:
- intentionally engages in a sexual activity / sexual assault;
- the child (under the age of 16 years) is present; and
- engaging in the activity in the presence of the child is contrary to community standards.
The child in question may be present either physically or by means of electronic communication (i.e. Skype). Similarly it is an offence if a person causes a child to be present during sexual activity. There are certain exceptions and defences which apply to this offence and are enshrined in the legislation (as well as at common law). Legal advice should be sought in relation to the availability of these exceptions/defences as soon as an accused is charged.
Encouraging a child under the age of 16 to engage in sexual activity
On 1 July 2017, a new offence was introduced into the Crimes Act 1958, which applies in circumstances where a person encourages a child (aged under 16 years) to engage in sexual activity for the sexual arousal or gratification of the accused person, even if the sexual activity did not directly involve the Accused. This offence applies whether the child was present either physically or by means of an electronic medium. This offence mirrors aspects of the Commonwealth legislation which addresses sexual offences committed over the internet, where the Accused is present in Australia but the child is present in an overseas country and is being engaged in sexual activity remotely. Significantly the state offence carries a lower maximum penalty than the Commonwealth Offence and may be prosecuted in the Magistrates’ Court, whereas the Commonwealth Offence must be prosecuted in the County Court. There is a separate offence which applies to the encouragement of a child aged 16 or 17 years to engage in sexual activity, whom is under care, supervision or authority. There are also separate offences for causing or allowing a sexual performance involving a child, inviting or offering a sexual performance involving a child and facilitating a sexual offence against a child.
Failure by a person in authority to protect a child from a sexual offence
The introduction of this offence, on 1 July 2017, is one of the most significant developments in sex offence law in Victoria. Previously, mandatory reporting obligations applied to certain professionals (i.e. teachers, doctors, police etc) but there was no offence that applied more generally to persons in authority. However, now a completely separate offence has been created which applies to a person who did not participate in the sexual offence against the child, but was in a position of authority and failed to protect them. The offence is completed where:
- the Accused occupies a position within a relevant organisation (i.e. a church, school, charity, sporting group, children’s service etc);
- there is a substantial risk to a relevant child (i.e. a child under 16 years who is, or may come, under the care, supervision or authority of the organisation);
- the Accused knows the risk and has the power/responsibility to reduce or remove that risk; and
- the Accused negligently fails to reduce or remove that risk.
Interestingly, it is not necessary that the Crown prove that a sexual offence has been committed against the child or to even identify a particular child. Rather it is a purely risk based/negligence offence.
In the aftermath of the Royal Commission into Institutional Responses to Child Sexual Abuse, this offence was introduced to clearly apply to religious organisations where senior members of the church/organisation were aware that one of its members/clergy was a risk to children but took no action to reduce or remove the risk, thereby potentially allowing for the further victimisation of children within the organisation, even if all of the potential victims could not be identified.
Threat to commit a sexual offence – post – 1 july 2015
After 1 July 2015, it will be an offence, pursuant to section 43, for a person to threat a rape or sexual assault on the alleged victim (the recipient of that threat) or a third person. The offence will be committed if such a threat is made, the accused intends that the alleged victim believes, or believes that the alleged victim will probably believe, that the accused will carry out the threat. Words or conduct may constitute a threat. If you are accused of making a threat of this kind over the internet or using a carriage service, such as a mobile phone, go to our Cyber Crime section for more information on other offences with which you may be charged.
Course of conduct offences – post – 1 july 2015
As of 1 July 2015, the Prosecution will be able to allege what is called a ‘course of conduct offence’. The relevance to the sex offences jurisdiction is that where there are one or more sexual offences alleged to have occurred over a period of time, the Prosecution will not have to prove with the same degree of specificity the time, date, place, or circumstances of the alleged offence. This ‘course of conduct’ charge will be charged as a single offence.
The Prosecution will have to prove beyond reasonable doubt that:
- there has been more than one incident;
- each incident constitutes an offence under the same provision – however, it does not have to involve the exact same act (ie rape can involve different acts of penetration but it is still the same offence);
- each incident relates to the same alleged victim;
- the incidents take place on more than one occasion over a specified period; and
- the incidents taken together amount to a course of conduct having regard to their time, place, purpose of the commission of the offence and any other relevant matter.
A charge sheet that contains this offence cannot be issued by a Police officer. It must be filed and signed with the consent of the Director of Public Prosecutions.
Sex offenders register – pre & post – 1 july 2015
Important Note: In May 2017, the Victoria Government announced that it would introduce legislation into Parliament to amend the current registration scheme. These changes are intended to address situations where young people of 18 and 19 years old have consensual sexual interactions with partners under the age of 18. In particular, in circumstances of sexting. Please see the proposed amending legislation and ensure that if yourself or your loved one may be affected by these changes that you obtain legal advice. Our Galbally Rolfe Facebook page has links to media regarding these amendments.
Conviction for certain serious sexual offences automatically attracts a period of time on the sex offenders register, supervised by the Victoria Police and the Department of Justice. However, a person may be added to the register at the discretion of a Magistrate or Judge if they are found guilty of a sexual offence that does not attract automatic registration, but in circumstances where an application has been made by the Prosecution to have them added to the register. The Judicial Officer may use their discretion to place a person on the register if they consider that they ‘pose a risk to the sexual safety of the community’. These discretionary applications have become more common in the Courts of late, particularly in the Magistrates’ Courts where most sex offences that are heard therein do not attract the mandatory registration.
A registrable offender will be added to the Sex Offenders Register once they have served any custodial sentence imposed upon them and they are released into the community, or at the same time that they are sentenced to a non-custodial disposition such as a Community Corrections Order. They will be subject to various reporting conditions, which:
- restrict where they live;
- restrict where they work;
- require them to report a change in phone number or email address;
- require them to report a change of name, address and employment;
- restrict their ability to travel interstate or overseas;
- restrict their access to children, including their access to the children of friends, relatives and partners.
Whether you will be added to the register, the duration of your registration and the conditions likely to be imposed upon you are all dependent on your offending and a number of other factors. Accordingly, you must contact an experienced criminal lawyer with any questions regarding registration.
Loitering by a sex offender
As of 1 July 2017, it is an offence for a person who has been found guilty of a relevant offence (i.e. sexual offence, murder where the victim was also the victim of a sexual offence etc) to loiter near a place regularly frequented by children (i.e. a school, children’s service centre, public place frequented by children), without a reasonable excuse. This offence was created to address a situation where a person previously convicted of a sex offence, but who is not prohibited from attending areas frequented by children pursuant to their sex offender registration conditions, is observed spending time in those areas without a reasonable excuse. Previously the Police had no power to take action against this person for ‘hanging around’ a school or playground, and so the Victorian Parliament has empowered Police to charge a person who has previously been convicted of a sex offence with loitering.
‘Revenge porn’ and ‘sexting’ offences
On 2 November 2014, it became illegal in Victoria to distribute intimate images of another person without their consent. This is commonly known as ‘sexting.’ An intimate image can only be distributed to third parties with the express or implied consent of the party (or parties) present in the image. They must also consent to the manner in which the image is shared. In addition, it is also illegal to make a threat that an intimate image will be distributed. Both offences are punishable by a 2 year maximum period of imprisonment.
Defences to sexual offences
With the introduction of new sexual offences and the expansion of pre-existing offences, the Victorian Parliament has also introduced new and expanded defences to these offences, which include circumstances where the participants in sexual acts are of a similar age, there is a reasonable belief as to age, there is a belief as to marriage or where an act of penetration occurs for a medical or hygienic purpose. Given the complexity of sex offence law and the defences that apply to particular offences, it is imperative that an Accused person obtains legal advice from an experienced defence practitioner.
Please visit our contact us page to make an appointment with one of our experienced criminal lawyers.
For privacy reasons, we do not disclose the names of clients in sexual assault matters.