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Sexual Assault and the Defence of Consent (Vic)

The offence which used to be known as indecent assault in Victoria was replaced with an offence known as sexual assault in 2015. This offence, which is governed by Section 40 of the Crimes Act, is defined slightly differently to how indecent assault was defined, however both offences comprise non-consensual sexual touching which falls short of sexual penetration. Sexual penetration without consent is rape and is governed by Section 38.

Indecent assault was defined as intentionally touching a person in indecent circumstances and without lawful justification, where the accused was aware the complainant was not consenting or might not be consenting. Sexual assault is defined as intentional sexual touching to which the recipient does not consent and the accused does not reasonably believe that the recipient consents.

Sexual assault

A person who commits sexual assault under Section 40 of the Crimes Act is punishable by a maximum penalty of level 5 imprisonment (10 years). The four elements that the prosecution must prove for a court to find a person guilty of sexual assault are as follows.

The accused intentionally touched the complainant in the way alleged

The accused must have intentionally touched the complainant in a conscious act, voluntarily and deliberately. Any touching, no matter how slight, is enough to satisfy this element. Further, touching can be done with any part of a person’s body or with an object and can be done through anything, including clothing. If a person causes another person or animal to touch the complainant, this element is satisfied.

The touching was sexual

The touching must be sexual. This element is satisfied if the genital or anal area, buttocks or breasts of either the complainant or the accused are involved in the touching. The touching can also be sexual in nature if the person doing the touching seeks or gets sexual gratification from the touching. This element can also be satisfied in considering the circumstances in which the touching occurred.

The complainant did not consent to the touching

The prosecution must prove that the touching occurred without the complainant’s consent. Consent is recognised as a state of mind. Thus, the prosecution must prove that the complainant did not freely agree to being touched by the accused at the time.

The accused did not reasonably believe that the complainant consented to the touching

The prosecution must prove that at the time of the act, the accused did not reasonably believe that the complainant was consenting. This element can be satisfied by establishing any of the following:

  • That the accused believed the complainant was not consenting;
  • That the accused gave no thought as to whether the complainant was consenting;
  • That the accused believed the complainant was consenting, but that belief was not reasonable;

Proof that the offender had any of these three states of mind is enough to fulfill the mental element of the offence.

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).

The defence of consent

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.

When assessing evidence as to the accused’s state of mind, consideration must be given as to whether the accused took any steps to determine whether the complainant was consenting or might not be consenting, and what steps were taken. However, such assessments must be based on the evidence of the particular case. A belief in consent based only on stereotypes or preconceptions about the circumstances in which people consent to sexual acts is not a reasonable belief, even where such stereotypes are based on a particular culture or religion to which the parties belong. If a belief is based on a combination of matters including general assumptions then, to the extent it is based on general assumptions, it is not a reasonable belief. When considering whether a belief in consent is reasonable or unreasonable, courts look at what the community would reasonably expect of the accused in the circumstances.

In considering whether the prosecution has proved that the accused did not have a reasonable belief, regard must be had to any personal attributes or characteristics of the accused and the circumstances of the offence. However, any level of intoxication on the part of the accused will not be taken into account when assessing whether there was a reasonable belief in consent. The law states that the accused’s belief in the complainant’s consent must have been reasonable to a person who was not intoxicated at the relevant time.

Alternative charge

An alternative charge to sexual assault is Section 41 of the Crimes Act, which makes it an offence to compel someone to touch someone else or themselves sexually. This offence makes it possible to prosecute an offender even in circumstances where they were the recipient rather than the deliverer of the touching in question. Sexual assault by compelling sexual touching is also punishable by a maximum of 10 years imprisonment.

By Amran Azad, Solicitor

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