What You Need to Know About Sexual Offence Charges in Melbourne, Victoria
Sexual offences are heavily legislated and taken extremely seriously in Victoria. The majority of sex-related crimes are defined under the Crimes Act 1958 (Vic). Some summary sex-related offences, such as obscene exposure, are found in the Summary Offences Act 1966 (Vic).
People typically think of sexual offences as non-consensual acts that involve touching, such as rape or sexual assault. However, in Victoria, many laws criminalise sexual behaviour that may not involve touching at all, such as forcing someone to watch pornography or sex.
If you have been charged or are under investigation for allegedly committing a sexual offence, please contact Sher Criminal Lawyers immediately. Our team of specialist lawyers has years of experience advising and representing clients in sex offence matters before the Magistrates and County Courts of Victoria. We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.
Summary offences can carry a maximum penalty of 2 years’ imprisonment and are dealt with in the Magistrates’ Court of Victoria. Sex-related offences listed in the Summary Offences Act 1966 (Vic) include:
- Sexual exposure (s19)
- Observation of genital or anal region of another person (s41A)
- Visually capturing genital or anal region of another person (s41B)
- Distribution of image of genital or anal region of another person (s41C)
- Distribution of intimate image of another person (s41DA)
- Threatening to distribute an intimate image of another person (s41DB)
There are many factors that the Magistrates’ Court must consider when determining the outcome of a summary sexual offence trial. All relevant evidence and circumstances must be taken into account. If the prosecution fails to prove any element beyond a reasonable doubt, the defendant cannot be held criminally liable for that charge.
Indictable offences are serious criminal charges that carry a maximum penalty of more than 2 years’ imprisonment. In Victoria, indictable sexual offences are legislated under the Crimes Act 1958 (Vic) and include:
- Performing female genital mutilation (s32)
- Taking a person from the State with the intention of having prohibited female genital mutilation performed (s33)
- Rape (s38)
- Rape by compelling sexual penetration (s39)
- Sexual Assault (s40)
- Sexual assault by compelling sexual touching (s41)
- Assault with intent to commit a sexual offence (s42)
- Threat to commit a sexual offence (s43)
- Procuring sexual act by threat (s44)
- Procuring sexual act by fraud (s45)
- Administration of an intoxicating substance for a sexual purpose (s46)
- Abduction or detention for a sexual purpose (s47)
- Sexual activity directed at another person (s48)
- Bestiality (s54A)
- Bigamy (s64)
- Abortion performed by unqualified person (s65)
There are many factors that the County Court must consider when determining the outcome of an indictable sexual offence trial. All relevant evidence and circumstances must be taken into account. If the prosecution fails to prove any element beyond a reasonable doubt, the defendant cannot be held criminally liable for that charge.
In sexual offences involving children, consent may not be a relevant element. There is an automatic presumption that children are unable to give consent. Even if the child agrees to the sexual act, the accused can still be charged and held criminally liable. However, some very limited exceptions might apply in some cases.
If a child is under the age of 12, it is automatically presumed that they cannot consent to a sexual act in any way.
If a child is aged 12-15, it is automatically presumed that they cannot consent to a sexual act with any person aged more than two years older than them. However, it is not an offence if the accused honestly believed the child was 16 or older.
The age of consent in Victoria is 16. However, a person aged 16 or 17 cannot consent to sexual act with a person in a position of care, supervision or authority (unless the parties are married). However, it is not an offence if the accused honestly believed the person was 16 or older.
Indictable sexual offences in Victoria related to children, legislated under the Crimes Act 1958 (Vic) include:
- Sexual penetration of a child under the age of 12 (s49A)
- Sexual penetration of a child under the age of 16 (s49B)
- Sexual penetration of a child aged 16 or 17 under care, supervision or authority (s49C)
- Sexual assault of a child under the age of 16 (s49D)
- Sexual assault of a child aged 16 or 17 under care, supervision or authority (s49E)
- Sexual activity in the presence of a child under the age of 16 (s49F)
- Sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority (s49G)
- Causing a child under the age of 16 to be present during sexual activity (s49H)
- Causing a child aged 16 or 17 under care, supervision or authority to be present during sexual activity (s49I)
- Persistent sexual abuse of a child under the age of 16 (s49J)
- Encouraging a child under the age of 16 to engage in, or be involved in, sexual activity (s49K)
- Encouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity (s49L)
- Grooming for sexual conduct with a child under the age of 16 (s49M)
- Loitering near schools etc. by sexual offender (s49N)
- Failure by a person in authority to protect a child from a sexual offence (s49O)
- Abduction or detention of a child under the age of 16 for a sexual purpose (s49P)
- Causing or allowing a sexual performance involving a child (s49Q)
- Inviting or offering a sexual performance involving a child (s49R)
- Facilitating a sexual offence against a child (s49S)
- Child stealing (s63)
- Kidnapping (s63A)
There are also numerous laws in Victoria criminalising sexual offences related to child abuse material (e.g. child pornography). Indictable material-related offences legislated under the Crimes Act 1958 (Vic) include:
- Involving a child in the production of child abuse material (s51B)
- Producing child abuse material (s51C)
- Distributing child abuse material (s51D)
- Administering a website used to deal with child abuse material (s51E)
- Encouraging use of a website to deal with child abuse material (s51F)
- Possession of child abuse material (s51G)
- Accessing child abuse material (s51H)
- Assisting a person to avoid apprehension (s51I)
There are many factors that the County Court must consider when determining the outcome of an indictable sexual offence trial. All relevant evidence and circumstances must be taken into account. If the prosecution fails to prove any element beyond a reasonable doubt, the defendant cannot be held criminally liable for that charge.
Several indictable offences under the Crimes Act 1958 (Vic) criminalise incest in Victoria, including:
- Sexual penetration of a child or lineal descendant (s50C)
- Sexual penetration of a step-child (s50D)
- Sexual penetration of a parent, lineal ancestor or step-parent (s50E)
- Sexual penetration of a sibling or halfsibling (s50F)
There are many factors that the County Court must consider when determining the outcome of an indictable sexual offence trial. All relevant evidence and circumstances must be taken into account. If the prosecution fails to prove any element beyond a reasonable doubt, the defendant cannot be held criminally liable for that charge.
Cognitive impairment can include mental illness, intellectual disability, dementia and brain injury.
In certain matters involving people with a cognitive impairment, consent may not be a relevant element. This is the case if the accused provides medical or health services or works or volunteers in a residential facility with the cognitively impaired victim. People in this position can potentially be charged with the following indictable offences under the Crimes Act 1958 (Vic):
- Sexual penetration of a person with a cognitive impairment or mental illness (s52B)
- Sexual assault of a person with a cognitive impairment or mental illness (s52C)
- Sexual activity in the presence of a person with a cognitive impairment or mental illness (s52D)
- Causing a person with a cognitive impairment or mental illness to be present during sexual activity (s52E)
There are many factors that the County Court must consider when determining the outcome of an indictable sexual offence trial. All relevant evidence and circumstances must be taken into account. If the prosecution fails to prove any element beyond a reasonable doubt, the defendant cannot be held criminally liable for that charge.
Certain indictable offences pertaining to commercial sexual services and servitude are also criminalised under the Crimes Act 1958 (Vic), including:
- Using force, threat etc. to cause another person to provide commercial sexual services (s53B)  
- Causing another person to provide commercial sexual services in circumstances involving sexual servitude (s53C)    
- Conducting a business in circumstances involving sexual servitude (s53D)  
- Aggravated sexual servitude (s53E)  
- Deceptive recruiting for commercial sexual services (s53F)  
- Aggravated deceptive recruiting for commercial sexual services (s53G)  
There are many factors that the County Court must consider when determining the outcome of an indictable sexual offence trial. All relevant evidence and circumstances must be taken into account. If the prosecution fails to prove any element beyond a reasonable doubt, the defendant cannot be held criminally liable for that charge.
The Court Procedure for Sexual Offences in Victoria ​
If you have been charged or are under investigation for potentially committing a sexual offence, it is important that you understand your legal rights and options. This area of law is highly complex.
Our expert team at Sher Criminal Lawyers are specialists at defending sex offence charges. We have years of experience advising and representing clients in sexual offence matters before the Magistrates, County and Supreme Courts. Please contact us immediately so that we can protect your rights and privacy from the outset of your matter. Find peace of mind knowing that our specialist lawyers are professionally navigating your case towards the best possible outcome.
Reporting of the Sexual Offence
In many cases, the victim or an authorised representative of the victim will report the alleged crime directly to the police.
However, in some instances, a person in a position of mandatory reporting (such as the police, doctors, teachers and nurses) will raise their suspicions with the Department of Human Services.
Interviewing and Charging of the Accused
The police may interview you before or after laying a charge, depending on the strength of the evidence. Statements made during the interview can be used by the prosecution as further evidence in court.
If you have been asked to give an interview to the police regarding a sexual offence, it is vital that you obtain legal advice prior. The police interview can be a highly stressful process and carries serious repercussions for the outcome of your matter. The legal advice you receive could make the difference between a guilty or not guilty verdict.
Pre-trial
The pre-trial management of indictable sexual offence matters occurs in the Magistrates’ Court of Victoria, usually on a Friday. Filing hearings and committal mentions are conducted during the pre-trial management.
This is the first opportunity that your lawyer will have to talk to the prosecution and the Magistrate about your matter. It is an important stage of the legal proceedings because your lawyer will be able to assess the strengths and weaknesses of your case based on the evidence presented. The Magistrate will also decide as to whether there is enough evidence to proceed to trial.
Most importantly, your lawyer will have to inform the Magistrate whether you are pleading guilty or not guilty. If you plead guilty to an indictable charge, the matter will likely be adjourned to be heard in the County or Supreme Court on a set date.
Trial
If you plead not guilty to an indictable sexual, you will likely be required to stand trial before a jury in the County Court of Victoria.
Evidence will be given by both parties. Witness evidence is heavily relied upon in sexual offence matters. To test that evidence, both parties will also be given the opportunity to cross-examine witnesses.
The jury, after being instructed by the judge and hearing the evidence, will decide whether the defendant is guilty or not guilty.
Sentencing
If you are found guilty, a plea hearing will take place. This is an opportunity for your lawyer to ask that the judge takes certain factors into account when deciding a sentence. The judge may also take into account a Victim Impact Statement if one is made by the victim.
Finally, the judge will impose a criminal sentence and you will be informed of your punishment. For more information about the penalties for sexual offences in Victoria, please see below.
Alternatively, if you are found not guilty, the case will be dismissed.
Things to Consider When Charged with a Sex Offence in Victoria
If you have been charged or are under investigation for committing a sexual offence in Victoria, there are many things to consider before giving a police interview and appearing in court. It is vital to speak to a criminal lawyer who is highly experienced in sexual offence matters as soon as possible. Your actions at the outset of the matter can mean the difference between a verdict of guilty or not guilty.
Things for the Accused to Consider
Consent is a key issue in the majority of sexual offences. In Victoria, consent is recognised as a free and mutual agreement between two parties to engage in sex. Therefore, consent requires some form of reciprocal communication.
There are some circumstances in which a person is automatically considered unable to give legal consent. The circumstances include if the person is:
- A child;
- Affected by drugs or alcohol to the extent that they are incapable of consenting or withdrawing consent;
- Asleep or unconscious;
- Unable to understand the sexual nature of the situation;
- Forced into the situation out of fear, force, harm or threats to themselves or someone else;
- Held against their will;
- Mistaken about the identity of the other person; or
- Made to believe the act is for medical purposes.
Sexual offence matters are highly complex. The Courts often have to rely on numerous and differing version of events and timelines. The issue of consent may not always be as straightforward as the prosecution attempts to make out. Please reach out to us immediately if you have been charged or are under investigation for allegedly committing a sexual offence so that we can provide timely legal advice.
Things that the Court Must Consider
Our specialist team at Sher Criminal Lawyers can answer your questions and provide you with expert advice and representation in your sexual offence matter. We will explain your legal options to you by answering important questions such as:
- Did the other party consent to the act?
- Should I cooperate with a police interview?
- What legal strategy should I utilise when facing multiple complainants?
- What is the likely result if I plead guilty or not guilty?
- Does the prosecution have enough evidence to support the charge?
- Do I have a valid explanation for what happened?
- Is there a legal defence I can rely on in my matter?
- Is it possible to have my charges negotiated to a lesser offence?
Penalties for Sexual Offences in Victoria
Sexual offences are considered amongst the most serious crimes in Victoria. Because of this, the maximum penalties imposed are severe.
Maximum penalties can range from 2 years imprisonment for summary offences to 25 years imprisonment for indictable offences. The specific penalty for an offence is stipulated in the relevant legislation. The value of one penalty unit in Victoria is around $165.
- Penalties in relation to sexual offences include:
- Imprisonment
- A Community Corrections Order
- A Good Behaviour Bond (Adjourned Undertaking)
- A fine
- A criminal conviction
- Placement on the Sex Offender Register
The Sex Offenders Register is used to track information about people who have committed certain sex offences. Registered sex offenders have to comply with a very strict set of conditions. Often, an offender is registered for life. Conditions can include:
- Keeping police informed of your whereabouts;
- Keeping police informed other specific details; and
- Not being able to work or volunteer in child-related fields.
What to Do If You Are Charged with a Sex Offence in Victoria
If you have been charged or asked to interview in relation to a sex 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 you case in a manner that establishes the true context of the situation. This is important because to assess issues like consent, the Court will likely have to rely on several witnesses, each with differing memories, timelines and versions of events.
It is also important to consider whether your criminal lawyer is experienced in jury trials. There are many complicated rules in relation to juries. A sound understanding of these rules and experience presenting to a jury will lead to the best possible outcome in your matter.
Sher Criminal Lawyers 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.
Recent news
Recent news
