If you have been accused of sexual assault, you will naturally be feeling stressed and anxious. In this article, our team of specialist sexual offence lawyers will attempt to relieve your anxiety by explaining:
- The different types of sexual offences in Victoria.
- The evidence required to prove a sexual assault charge.
- What to do if you have been accused of sexual assault.
- How to beat a sexual assault charge.
If you are under investigation or have been charged with sexual assault, it is critical that you immediately seek legal advice from a sexual offence lawyer. Please contact one of our experts at Sher Criminal Lawyers for immediate advice and representation in Melbourne or regional Victoria.
Please note that this article is not legal advice. It only presents general information.
Sexual Offences in Victoria
In Victoria, there are over 60 different criminal charges that could be considered “sexual offences”. However, most commonly when people refer to sexual offences, they are referring to either rape or sexual assault.
It is important to note the difference between rape and sexual assault. Many people mistakenly believe that both terms mean the same thing. However, the law treats rape and sexual assault as two separate sexual offences.
Charge of Rape
In Victoria, rape is defined as “when a person intentionally sexually penetrates another person without that person’s consent”.
It is important to note the word “penetrates”, as this is what distinguishes rape from sexual assault. Sexual penetration can be committed by and against both men and women. It may include:
- Oral penetration;
- Anal penetration;
- Vaginal penetration.
Rape is a criminal offence under s38 of the Crimes Act 1958 (Vic). For a person (A) to be found guilty of rape, the prosecution must prove that:
- A intentionally sexually penetrated another person (B); and
- B did not consent to the penetration; and
- A did not reasonably believe that B consented to the penetration.
Between 2016 and 2020, the County Court of Victoria convicted 238 people of rape. Of those people convicted, 211 (or 88%) were sentenced to imprisonment. The median prison sentence was between 5-7 years. In Victoria, the maximum penalty that can be imposed in a rape matter is 25 years imprisonment.
Charge of Sexual Assault
Sexual assault does not involve penetration. Instead, it is defined as “when a person intentionally sexually touches another person without that person’s consent”.
Sexual assault is a criminal offence under s40 of the Crimes Act 1958 (Vic). For a person (A) to be found guilty of sexual assault, the prosecution must prove that:
A intentionally touched another person (B);
The touching was sexual;
B did not consent to the touching; and
A did not reasonably believe that B consented to the touching.
In Victoria, the maximum penalty that can be imposed in a sexual assault matter is 10 years imprisonment. Sexual assault replaced the offence of indecent assault in Victoria in 2015.
Elements Required to Prove Sexual Assault
As noted above, s40 of the Crimes Act 1958 (Vic) identifies four elements that the prosecution must prove in order for the accused to be found guilty of sexual assault. If the accused’s legal defence team can prove that one or more of these elements did not exist at the time of the offence, the accused must be found not guilty.
Intentional Touching of Another Person
For the accused to be found guilty of sexual assault, the prosecution must prove that the accused intentionally touched the complainant.
According to s35B of the Act, “touching” includes:
- Touching done with any part of the body;
- Touching done with any other object; or
- Touching done through anything, including anything worn by the person doing the touching or by the person touched.
Also, note that the touching must be “intentional”. That is, the prosecution must prove that the touching was deliberate and not just accidental or inadvertent.
The Touching Was Sexual
For the accused to be found guilty of sexual assault, the prosecution must prove that the touching was sexual.
Section 35B(2) of the Act states that touching is considered “sexual” if:
- The area of the body that is touched or is used in touching includes:
- The genital or anal region;
- The buttocks; or
- The breasts (females).
- The person doing the touching seeks or gets sexual arousal or sexual gratification from touching; or
- Any other aspect of the touching (including the circumstances) suggests that it was sexual.
The Complainant Did Not Consent to the Touching
For the accused to be found guilty of sexual assault, the prosecution must prove that the complainant did not consent to the touching that occurred at the time.
Section 36 of the Act defines “consent” as meaning “free agreement”.
The Act also identifies some circumstances in which it must be held that the complainant did not consent to sexual touching. Such circumstances include but are not limited to:
- The complainant does not say or do anything to indicate consent to the touching;
- Having consented to the touching, the complainant later withdraws consent to the touching taking place or continuing.
- The complainant submitted to the touching because they feared harm or force;
- The complainant submitted to the touching because they were unlawfully detained;
- The complainant was asleep or unconscious;
- The complainant was so affected by alcohol or another drug as to be incapable of consenting to the touching (or incapable of withdrawing consent);
- The complainant was incapable of understanding or mistaken about the sexual nature of the touching;
- The complainant was mistaken about the identity of the person involved in the touching; or
- The complainant mistakenly believed that the touching was for medical or hygienic purposes.
No Reasonable Belief of Consent
For the accused to be found guilty of sexual assault, the prosecution must prove that the accused did not reasonably believe that the complainant was consenting to being touched.
According to the Judicial College of Victoria, this element will be satisfied if the prosecution can prove that:
- The accused believed that the complainant was not consenting;
- The accused did not believe the complainant was consenting. This includes circumstances where the accused gave no thought as to whether the complainant was consenting; or
- The accused believed the complainant was consenting, but the accused’s belief was not reasonable in the circumstances.
What To Do If You’re Accused of Sexual Assault
Remain silent unless you speak with a lawyer
In Australia, if the police charge you with a sexual offence, you have the right to remain silent until you speak to a criminal defence lawyer. It is important that you exercise this right to remain silent and contact a sexual offence lawyer as quickly as possible.
The police will likely try and pressure you into talking to them without a lawyer present. This is a terrible idea. Sometimes it is a good idea to answer questions in a police interview, but only after discussing it with a lawyer.
If the police do try to question you without a lawyer present, remain silent or say “no comment” and ask to immediately speak to a specialist sexual offence lawyer. Your silence during police questioning cannot be used against you in court.
Contact a Specialist Sexual Offence Lawyer
As soon as you are made aware that you are under investigation or being charged with sexual offences, you must ask to speak to a criminal defence lawyer who specialises in sex offences.
Sher Criminal Lawyers is a specialist criminal defence law firm based in Melbourne, Victoria. We have a team of extensively experienced sexual offence lawyers who are available 24/7 and ready to help. Please call us immediately if you have been charged or asked to interview in relation to a sex offence. We will provide you with immediate advice and attend the police interview to protect your rights.
Talk Openly and Honestly With Your Lawyer
Your criminal defence lawyer is duty-bound to protect your legal interests regardless of what you tell them. It is critical that you talk with your lawyer openly and honestly.
Tell your sexual offence lawyer everything that you know or remember about the alleged incident. Whatever you say is confidential, unless you instruct your lawyer to disclose it to the police, or if it comes to it later, to a Court.
If your lawyer knows all the facts and circumstances about the alleged offence, they can prepare the best possible legal defence. By being open and honest with your lawyer, your defence team can ensure that they are ready for any arguments that the prosecution might raise in court.
Do Not Contact or Approach the Complainant
It is common for people accused of sexual assault to try and contact the complainant. Often, the accused believes that they can resolve the issue themselves by speaking directly with the complainant. This is a bad idea that can result in further criminal charges being laid.
Do not attempt to contact or approach the complainant. If you do so, the police or the court might think that you are trying to interfere with the case. This could result in you being charged with:
- Perverting the Course of Justice: A common law criminal offence that carries a maximum penalty of 25 year’s imprisonment; or
- Intimidation: A criminal offence under s257 of the Crimes Act 1958 (Vic) that carries a maximum penalty of 10 year’s imprisonment.
If the complainant contacts you, you should refuse to speak with them. If they ask why, simply tell them your lawyer advised you not to speak with them. You should speak with your lawyer as soon as possible if the complainant does contact you.
If it is essential that you contact the complainant, ask your lawyer to speak to the complainant’s lawyer on your behalf.
Defences to Sexual Assault in Victoria
In Victoria, for the accused to be found guilty of sexual assault, the prosecutor must prove the four key elements discussed above. However, numerous defences may negate these elements. The defences that are available to you will depend on the circumstances of the alleged offence and the evidence available.
The only person who can properly assess your legal options is a specialist sexual offence lawyer. If you have been charged or asked to interview in relation to a sex offence, please contact Sher Criminal Lawyers immediately. Our expert team of sexual offence lawyers will assess your case and advise you of your defence options.
As discussed above, consent is a legal defence to sexual assault. In relation to sexual assault, consent is defined as a “free agreement” (s36 Crimes Act 1958 (Vic)).
If the defendant can prove that the complainant freely agreed to the touching that occurred at the time of the alleged incident, the defendant must be found not guilty.
Consent can be given by the complainant in the form of words, non-verbal conduct or a combination of both. The defendant must prove consent based on the facts and evidence available.
The court must also consider whether the accused held a “reasonable belief of consent”. In doing so, the court must assess the circumstances of the alleged offence. Did the accused take any steps to determine if the complainant was consenting or not? If reasonable steps were taken, this might help prove that the accused held a reasonable belief of consent and is therefore not guilty.
Honest and Reasonable Mistake
In sexual assault matters, honest and reasonable mistake is not a defence. Section 48B of the Crimes Act 1958 (Vic) forbids the honest and reasonable mistake defence from being used in sexual assault matters.
This means that the accused cannot rely on the fact that they held a “mistaken but honest and reasonable belief that the touching was not sexual”.
Impossibility may be a valid legal defence in some sexual assault matters. If the accused can prove that it is impossible for them to have intentionally touched the complainant in a sexual manner, this will negate an element of the offence and result in the accused being found not guilty.
Section 48A of the Crimes Act 1958 (Vic) creates medical exceptions to the offence of sexual assault.
That is, the accused does not commit sexual assault if the “sexual touching is required and done in the course a procedure carried out in good faith for medical or hygienic purposes”.
Choosing a Sexual Offence Lawyer (Melbourne)
If you have been charged or asked to interview in relation to a sexual offence, please contact Sher Criminal Lawyers immediately. We are here to help you protect your rights and achieve the best possible outcome in your criminal matter.
Our extensively experienced sexual offence lawyers will prepare your case in a manner that establishes the true context of the situation. We have advised and represented clients in all kinds of sexual offence cases before the Magistrates, County and Supreme Courts of Victoria. Further, we work hand in hand with Senior and Queens Counsel to ensure that our client’s representation is of the utmost calibre in jury trials.
Please get in touch and ask for a free consultation by way of Zoom, Facetime or in person at our Melbourne or Moorabbin offices. Our sexual offence defence lawyers are available 24/7 and here to help in your time of need.