Sexual Assault in Victoria – Recent Legislative Changes

Following a comprehensive review of the current legislation on Sexual Offences in Victoria, several amendments were created to ensure a simple and clear application.[1] The new legislation commenced on 1 July 2015 and featured specific amendments to laws on rape and sexual assault, including exceptions to child pornography offences for children (under 18) who engage in Sexting. In this update, we discuss the updates to the charge of sexual assault, including the application of a ‘fault’ element and what this means for the issue of consent.

Definition of Sexual Assault

The new legislation removed the old offence of ‘indecent assault’ and replaced it with the new offence of ‘sexual assault’.[2] This offence is defined as the intentional touching of another in a sexual manner, where consent has not been given.[3] Touching includes that done with any part of the body or object and may be ‘sexual’ due to the area touched, or circumstances of the touching.[4] The maximum penalty for this offence is 10 years imprisonment.[5] However, there are separate offences where the complainant was a child under 16 or between 16 and 17 at the time of the alleged offending.[6]

Elements of the Offence

The legislation clearly identifies the elements for an offence of sexual assault as follows:

1. Intentionally touches another person; and
2. The touching is sexual; and
3. The complainant does not consent to the touching; and
4. There was no reasonable belief that the complainant was consenting to the touching.[7]

Each of the above elements must be proved by the Prosecution beyond reasonable doubt to result in a conviction for the offence.

In relation to the first element, the prosecution must prove beyond a reasonable doubt that the touching was intentional and deliberate. Touching inadvertently or accidentally will not amount to intentional touching.

In relation to the second element, touching can be ‘sexual’ because of:

1. The area of the body that is touched or used in the touching;
2. The person doing the touching seeks to or gets aroused or sexual gratification from the touching; or
3. Any other aspect of the touching, including the circumstances in which it is done.[8]

In determining whether touching is considered ‘sexual’, relevant circumstances to consider include:

• The relationship of the accused to the victim (e.g. were they relatives, friends or complete strangers);
• How the accused had come to embark on this conduct; and
• Why the accused was behaving in that way.

What is consent and why is it relevant?

Consent is extremely relevant in sexual assault cases. It describes the ‘free agreement’ of the complainant to the touching or behaviour.[9] It is the role of the Police to establish that the complainant did not consent to the act and that the accused person understood that the complainant did not consent. This will involve assessment of the circumstances of the case and the specific steps taken to determine if the complainant consented. However, there are specific situations where consent cannot be inferred, such as if the complainant is asleep or unconscious or significantly affected by drugs or alcohol.[10]

Defences

If you held a reasonable belief that the person was consenting to the touching, you have an arguable defence to the charge.[11] What will constitute ‘reasonableness’ will depend on the circumstances of your case.[12]

Exceptions to the offence also exist if you were acting under the necessity for medical, hygienic or scientific purposes (for example in the reasonable conduct of professional employment, such as a doctor examining a patient).[13]

It is important to understand that consent is not a defence if the complainant is a child under the age of 16 unless it can be established that you did not know the child was under 16 or are yourself a child no more than 2 years older than the complainant at the time of the offence.

You may also have a defence of a reasonable mistake or a factual dispute relating to the charge.

We suggest that you should contact an experienced legal practitioner as soon as possible if you are to be interviewed in relation to this offence so that you can be provided with appropriate advice based on the circumstances relevant to your matter.

[1] Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic)
[2] Crimes Act 1958 (Vic) s 40.
[3] Crimes Act 1958 (Vic) s 40 (1).
[4] Crimes Act 1958 (Vic) s35B.
[5] Crimes Act 1958 (Vic) s 40 (2).
[6] Crimes Act 1958 (Vic) s 49D, 49E.
[7] Crimes Act 1958 (Vic) s 40 (1).
[8] Crimes Act 1958 (Vic) s 35B(2)
[9] Crimes Act 1958 (Vic) s 36(1).
[10] Crimes Act 1958 (Vic) s 36(2)(d)(e).
[11] Crimes Act 1958 (Vic) s 40 (1)(d).
[12] Crimes Act 1958 (Vic) s 36A.
[13] Crimes Act 1958 (Vic) s 48A