Following a comprehensive review of the current legislation on Sexual Offences in Victoria several amendments were created to ensure a simple and clear application. The updated legislation commenced on 1 July 2015 and featured specific updates 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’. This offence is defined as the intentional touching of another in a sexual manner, where consent has not been given. 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. The maximum penalty for this offence is 10 years in prison. However, there are separate offences where the alleged victim was a child under 16 or between 16 and 17.
Elements of the Offence
The legislation clearly identifies the elements for an offence of sexual assault and each must be satisfied by the Prosecution to result in a conviction for the offence:
- Intention to touch another person;
- The touching is sexual;
- The victim does not consent to the touching; and
- There was no reasonable belief that the victim was consenting to the touching.
The specific fault element of the offence is a reasonable belief that there was consent to the touching.
What is consent and why is it relevant?
Consent is extremely relevant in sexual assault cases. It describes the ‘free agreement’ of the alleged victim to the touching or behaviour. It is the role of the Police to establish that the alleged victim did not consent to the act and that the accused understood that the alleged victim did not consent. This will involve assessment of the circumstances of the case and the specific steps taken by you to determine if the alleged victim consented. However, there are specific situations where consent cannot be inferred, such as if the alleged victim is asleep or unconscious or significantly affected by drugs or alcohol.
It may be a defence to the charge if you held a reasonable belief that the person was consenting to the touching. What will constitute ‘reasonableness’ will depend on the circumstances of your case. Exceptions to the offence also exist if you were acting under necessity for medical, hygienic or scientific purposes (for example in the reasonable conduct of professional employment, such as a doctor examining a patient).
It is important to understand that consent is not a defence if the alleged victim 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 alleged victim at the time of the offence.
 Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic)
 Crimes Act 1958 (Vic) s 40.
 Crimes Act 1958 (Vic) s 40 (1).
 Crimes Act 1958 (Vic) s35B.
 Crimes Act 1958 (Vic) s 40 (2).
 Crimes Act 1958 (Vic) s 49D, 49E.
 Crimes Act 1958 (Vic) s 40 (1).
 Crimes Act 1958 (Vic) s 36(1).
 Crimes Act 1958 (Vic) s 36(2)(d)(e).
 Crimes Act 1958 (Vic) s 40 (1)(d).
 Crimes Act 1958 (Vic) s 36A.
 Crimes Act 1958 (Vic) s 48A