Sexual Assault in Victoria

This article was prepared by Go To Court Lawyers, Australia's largest legal service. For legal advice specific to your situation, call 1300 636 846.

In Victora there is a range of offences involving unlawful sexual activity contained in the Crimes Act 1958. These offences include rape, sexual assault and procuring a sexual act by fraud. This page deals with the offence of sexual assault, its penalties and the court processes involved in finalizing a charge.

The offence of sexual assault

Section 40 of the Crimes Act 1958 makes it an offence for a person to intentionally touch another person sexually without the other person’s consent where the person does not reasonably believe that the other person consents. This offence carries a maximum penalty of 10 years imprisonment.

The offence of sexual assault by compelled sexual touching

Section 41 of the Crimes 1958 makes it an offence for a person to intentionally cause another person to touch someone else, themselves, or an animal sexually and the other person does not consent to the touching and the person does not reasonably believe that they consent to the touching. This offence also has a maximum penalty of 10 years imprisonment.

What is sexual touching?

For a sexual assault charge, the alleged touching may be:

• With any part of the body;
• With any other thing;
• Through anything, including clothing.

The touching must have been deliberate, not inadvertent or accidental.

Touching can be sexual because of:

• the area of the body touched
• The accused seeking sexual arousal or gratification
• other aspect of the touching including the circumstances in which is occurs

In assessing whether touching was sexual, the court may consider the following:

• The relationship of the accused person to the alleged victim
• How the conduct came about
• Why the accused was behaving in this way

Defence of consent

A person has a full defence to a sexual assault charge if the alleged victim consented to the touching.

A person also has a defence to a sexual assault charge if they had a reasonable belief that the alleged victim was consenting. However, that belief must be based on something the person said or did to communicate consent. If the accused made no attempt to ascertain whether the other person consented, they do not have a reasonable belief in consent.

A person does not have a defence if they:

• believed the victim was not consenting
• did not believe the victim was consenting
• did not think about whether the victim was consenting
• had a belief that the victim was consenting, but that belief was not reasonable in the circumstances.

Jurisdiction

Sexual assault is an indictable offence that can be heard summarily. It can be dealt with in the Magistrates Court or in the County Court.

When a criminal matter is dealt with in the Magistrates Court, the maximum penalty that can be imposed for a single offence is imprisonment for two years.

When a criminal matter is dealt with in the County Court, it must first go through a number of procedural stages in the Magistrates Court. If there is sufficient evidence that the accused person could be found guilty by a jury, the matter will eventually be committed to the County Court for a plea hearing or a trial.

Have you been charged with sexual assault in Victoria?

If you have been charged with sexual assault in Victoria, you should seek thorough legal advice. Go To Court Lawyers can talk to you about:

• The strength of the case again you
• Whether there is an available defence
• The likely penalty range if you are found guilty
• The court process and how long the matter is likely to take to finalise
• Your prospects of being granted bail, if you have been remanded

Applying for bail on a sexual assault charge in Victoria

 If you have been charged with sexual assault in Victoria and want to apply for bail, Go To Court Lawyers can assist. Decisions about bail in Victoria are made under the Bail Act 1977.

Under section 4E of the Bail Act 1977, a court must refuse bail to a person if there is an unacceptable risk that, if released, the person will:

• Endanger the safety or welfare of a person
• Commit an offence
• Interfere with witnesses or obstruct the course of justice
• Fail to surrender into custody.

In assessing whether the is an acceptable risk of the above, the court takes into account the strength of the prosecution case, the person’s criminal history, whether they have complied with bail conditions in the past, whether they were on bail, parole or another order when the offence allegedly occurred, the person’s circumstances and any special vulnerability they have, such as a disability or medical condition.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.