Digital Rape in Victoria

Digital rape is a type of sexual assault where a person involves forcibly and without consent inserts their fingers or toes into another person's private parts. The term "digital" in this context refers to the digits on a person's hands or feet. This page deals with digital rape in Victoria.

It's important to note that this type of assault is not related to any form of online sexual harassment or digital technology. The term has its roots in the English language, as the word "digit" refers to the fingers and toes.

Digital rape is a serious crime that can have severe legal consequences including imprisonment for life. It's important to understand that consent is key in all forms of sexual contact between adults, and any act performed without consent amounts to an offence.

Digital penetration falls within the broader definition of sexual penetration defined in Section 35A of the Crimes Act 1958.

Definition of digital penetration

According to the definition of sexual penetration provided in section 35A of the Crimes Act 1958, a person (A) digitally penetrates another person (B) if:

• A introduces their finger/s, thumbs or toes (to any extent) into the vagina of B.
• A introduces their finger/s, thumbs or toes (to any extent) into the anus of B.

Sexual penetration generally

In addition to digital penetration, the definition of sexual penetration also includes the following acts:

• Introducing a part of one's body or an object into another person's vagina or anus to any extent.
• Introducing one's penis into another person's mouth to any extent.
• Continuing to leave a part of one's body or object, or one's penis, in another person's vagina, anus, or mouth after introduction.

Digital rape and the law in Victoria

The general community often perceives digital penetration or digital rape as less serious than other forms of sexual penetration. However, this has changed with the introduction of section 35A of the Crimes Act 1958, which makes digital penetration without consent an equally serious offence as other forms of rape.

The Court of Appeal in R v Lomax [1998] 1 VR 551 has ruled that there is no hierarchy of penetration in Victoria and all forms of penetration, regardless of the body part used, are equally serious. The severity of a penetrative act is evaluated by considering all the facts of the case and not just the type of penetration. The court may take into account that digital penetration carries a lower risk of injury, infection or pregnancy compared to a penetrative act involving a penis, but these are just examples of what might be considered.

In the recent case of DPP v Shrestha [2017] VSCA 364, the Court of Appeal expressed the need to increase sentences involving digital penetration. Common charges related to digital penetration include rape and sexual penetration of a minor.

Legal requirements for rape and digital rape prosecutions

To secure a conviction in court, the prosecution must prove the following elements beyond a reasonable doubt:

• Sexual intercourse occurred between the accused and another person
• The other person did not consent to the sexual intercourse
• The accused knew the other person did not consent to the sexual intercourse or was reckless as to whether they consented
• In some cases, the sexual intercourse involved circumstances of aggravation
• The accused committed the offence

The maximum penalty for rape in Victoria is life imprisonment. Rape matters are heard in the County Court.

Defences to rape

Defences that may be used to contest a charge involving digital rape include:

Duress

The defence of duress argues that the accused was forced to commit the offense under threat of harm or injury. This could mean that they were under the control of someone else, or that they were in a situation where they felt they had no other choice but to engage in the sexual act in question.

Mistaken identity

This defence argues that the accused was not the person who committed the offense. This could be because they were misidentified by the victim or witnesses, or because of a mistake in the investigation.

Honest and reasonable belief in the complainant's consent

This defence argues that the accused had a good faith belief that the other person was consenting to the sexual act in question. This belief must have been both honest and reasonable in order for it to be considered a valid defence.

Consent by the complainant

This defence argues that the other person did in fact consent to the sexual act in question. If the accused can show that the other person agreed to the act, then they cannot be found guilty of the offense.

Noteworthy Victorian cases involving rape

Taha Sepehrnia, a 30-year-old man, has been sentenced to 13 years and four months' imprisonment with a non-parole period of nine years and four months for his crimes. He was found guilty of two charges of rape, three charges of threatening to kill, one charge of possessing an imitation firearm, and one charge of recklessly causing injury.

The first victim was briefly in a relationship with Sepehrnia in 2016, during which he showed incredibly possessive and domineering behavior, including threatening to kill her if she spent time with other men. On one occasion, he pointed an imitation firearm at her stomach, before holding her down on the bed and using a pillow to cover her face. Sepehrnia then raped the victim.

The second victim was in a relationship with Sepehrnia in 2017 and experienced similar possessive, controlling, jealous, and aggressive behaviour. After ending the relationship, Sepehrnia repeatedly called and attended uninvited and at all hours. On one occasion, he broke into the victim's property and ignored her pleas to stop before raping her in her bedroom.

The judge acknowledged the deep and lasting impact on the victims and prioritized the need to protect the community against potential reoffending by Sepehrnia. The judge emphasized the seriousness of the offences, stating that the first victim was powerless to stop Sepehrnia and that there was no semblance of consent.

Considering the offender's extensive criminal history and drug use issues from a young age, the judge determined that Sepehrnia's prospects for rehabilitation were low. The judge considered the offending to indicate a possessive and violent attitude towards women and stressed the need to deter others from similar acts. The mitigating factors included delays and impacts on the prison environment caused by COVID-19, as well as Sepehrnia's guilty plea.

How can we help?

It is critically important to enlist the help of a lawyer if you have been or may be charged with rape, including digital rape. In Victoria, this type of assault is a serious crime and carries a maximum penalty of life imprisonment.

A lawyer can assist in navigating the court procedures and assessing any available defences. The Go To Court Lawyers Legal Hotline is available 7 am to 9pm, 7 days a week at 1300 636 846 for those in need of legal assistance.