Sexual offences include rape, assault with intent to rape, indecent assault, incest and administering drugs to enable sexual penetration, sexual offences against young people and offences against people with impaired mental functioning. A person found guilty of rape can be sentenced to 25 years imprisonment.
Summary of general sexual offences
There are the following general sexual offences under the Crimes Act 1958 (Vic) (“Crimes Act (Vic)”):
•assault with intent to rape;
•administering drugs to enable sexual penetration;
•sexual offences against young people; and
•offences against people with impaired mental functioning.
The Crimes (Rape) Act 1991 (Vic) applies to any offence that occurred after 5 August 1991. Procedural and evidence amendments have also been made to other Acts, including the CP Act, Evidence Act 2008 (Vic) and Evidence (Miscellaneous Provisions) Act 1958 (Vic).
General sexual offences are also listed in the Crimes Act 1914 (Cth) (pt IIIA).
The Crimes Act (Vic) clarifies the concept of consent and reaffirms the fundamental right of a person to elect not to engage in sexual activity.
The law says that unlawful sexual penetration (i.e. rape) occurs when someone does not agree to any penetration of the vagina, mouth or anus by a penis, or by another part of the body, such as a finger, tongue, or other object. “Vagina” is prescribed to include the external genitalia and a surgically constructed vagina. It is not necessary as a matter of law for there to have been emission of semen for a finding that there has been sexual penetration. Failure of a perpetrator to withdraw upon becoming aware that a person might not be consenting is also rape.
Consent means free agreement. Free agreement is not present if a person:
•submits because of force, or is afraid of the use of force against them or someone else; this includes forms of harm other than physical force;
•submits because they are unlawfully detained;
•is asleep, unconscious, or so drunk or under the influence of another drug as to be incapable of freely agreeing;
•is incapable of understanding the sexual nature of the act;
•is mistaken about the sexual nature of the act, or about who the person is who is performing it; or
•believes mistakenly that the person is performing the act for medical or hygienic purposes.
The law also states that:
•the fact that a person does not say or do anything to indicate free agreement to a sexual act is normally enough to show that the act took place without free agreement; and
•a person does not freely agree to a sexual act just because they did not protest or physically resist it, or was not physically injured, or had on a previous occasion freely agreed to sexual contact, or on the occasion in question had agreed to another sexual act.
An accused can still argue that they honestly (and not unreasonably) believed that the victim was freely agreeing. However, the jury must take into account whether that belief was reasonable in the circumstances. This definition of free agreement has reduced the number of cases in which the defence of “honest mistake” was made.
It is also a criminal offence to assault or threaten to assault another person with intent to commit rape.
Rape in marriage is unlawful and can be prosecuted under the provisions for rape in the Crimes Act (Vic).
A person found guilty of rape may be imprisoned for up to 25 years.
It is an offence to assault someone indecently while being aware that the person is not consenting or might not be consenting. Such an assault generally involves some form of inappropriate touching of the genital area or of a woman’s breasts.
It is an offence for a person to administer a drug or anything else, or to cause a drug to be taken by a person, where the intention is to render that person incapable of resisting and so enable the first person or someone else to sexually penetrate the victim.
“Administer” is a broad term meaning something more than “supply” or “provide”, and involves the giving of some real encouragement for the use of the drug.
Incest takes place when there is sexual penetration of a person who the offender knows is their child or other “lineal descendant”, or is their step-child, or the child or other lineal descendant or step-child of their de facto spouse, or their father or mother, or lineal ancestor, or step-father, step-mother, sister, half-sister, brother or half-brother.
Consent is not a defence for incest, although coercion by the other party is. Incest of a non-penetrative kind falls within the indecent assault or indecent act category, and is also a criminal offence.
The following are presumed unless the accused provides contrary evidence:
•that the accused knew that they and the other person were related in the manner charged; and
•that people who are reputed to be related in a particular way are, in fact, so related.
The Crimes Act (Vic) describes three age categories where sexual activity with a young person is unlawful, and attaches different consequences to each one:
1 child aged under 12;
2 child aged under 16, but older than 12;
3 child aged 16 to 17.
A person who takes part in (or attempts to take part in) an act of sexual penetration of a child under 12 years of age, or assaults the child with intent to take part in such an act, commits a serious indictable offence, which can only be heard in the County Court.
A person who takes part in (or attempts to take part in) an act of sexual penetration of a young person in this age group, or assaults the young person with intent to take part in such an act, commits a serious indictable offence, which can only be heard in the County Court.
Where the young person is under the care, supervision or authority of the offender, the maximum prison term is increased because the offence is regarded as “aggravated”. This makes the offence even more serious.
The Crimes Act (Vic) sets out the following defences under this age category:
•the accused believed that at the time of the alleged offence they were married to the young person;
•consent is only a defence if the accused:
– believed on reasonable grounds that the young person was 16 or over; or
– was not more than two years older than the young person.
It is an offence for a person to commit an indecent act against or directed towards a child under 16 years old. The offence can be committed by exposing the child lewdly to sexual activity or to pornography. The act must be “wilful” and not accidental. Consent is not a defence, except in the circumstances set out for the offence of penetration of a child between the ages of 12 and 16. The offence replaces the offence of “gross indecency”. The offence can be heard in the Magistrates’ or County Court.
It is an offence to maintain a sexual relationship with a child under 16 years old who is under the offender’s care, supervision or authority. The offence is constituted by proof of at least three incidents of sexual conduct during a particular period. Sexual conduct includes indecent assault, and it is not necessary to prove the dates or the exact circumstances of the conduct. The consent of the DPP is required to commence proceedings.
It is an offence for a person to take part in an act of sexual penetration with a 16- or 17-year-old person to whom they are not married, if the young person was in their care, supervision or authority. It is a defence if the person can show that they believed on reasonable grounds that:
•the young person was aged 18 or more; or
•they were married to the young person.
It is an offence for a person to wilfully commit, or wilfully be party to the commission of, an indecent act with or in the presence of a 16- or 17-year-old young person to whom they are not married and who is under their care, supervision or authority. Consent is no defence unless, at the time of the alleged offence, the person believed on reasonable grounds that:
•the young person was aged 18 or more; or
•they were married to the young person.
It is an offence to assist (by making travel arrangements or in any other way), whether by acting or failing to act, another person in a way that would aid, facilitate or contribute to a sexual offence in Victoria or to behaviour anywhere else that would constitute a sexual offence if it were committed in Victoria.
To be guilty of this offence, the person must have acted with a view to personal gain. They must also have intended that, or been indifferent as to whether, their conduct would aid, facilitate or contribute to the commission of a sexual offence.
It is an offence to perform female genital mutilation on a child, defined as including the following procedures:
•excision or mutilation of the whole or a part of the clitoris, labia minora or labia majora;
•any procedure to narrow or close the vaginal opening;
•the sealing or suturing together of the labia minora or labia majora; and
•the removal of the clitoral hood.
Similarly, it is an offence for these procedures, other than removal of the clitoral hood, to be performed on an adult woman. A further offence exists in taking – or arranging for the taking – from Victoria of a person for the purpose of having “female genital mutilation” performed on them. Consent is no defence to the offences.
However, it is not an offence to perform the above procedures if this was:
•necessary for the health of the person concerned, and performed by a medical practitioner; or
•on a person in labour or who has just given birth, and was for medical purposes or for the relief of physical symptoms connected with the labour or birth and performed by a medical practitioner or midwife; or
•a sexual reassignment procedure performed by a medical practitioner.
It is an indictable offence to procure (or attempt to procure):
•a person under 16 to take part in an act of sexual penetration outside marriage with another person in any part of the world; or
•any other person to take part in such an act with such a person.
It is also an offence under the Crimes Act (Vic) to:
•abduct a child under 16 from the person who has charge of the child, or cause the abduction of the child, with the intention of that child taking part in an act of sexual penetration outside marriage with them or any other person;
•procure by threats or intimidation a child to take part in sexual penetration outside of marriage; and
•induce or knowingly allow a child under the age of 17 to enter or remain on a premises (owned, occupied or managed by the offender) for the purposes of taking part in an unlawful act of sexual penetration.
Incest and other sexual offences against young people must be reported to the authorities by a number of professionals (see “Child protection reports and investigations” in The Children’s Court).
The law recognises the need to provide special protections for people regarded as having “impaired mental functioning”. This includes anyone with an intellectual or psychiatric disability or mental illness, with dementia or with a brain injury.
Sexual relations between workers at a residential facility and residents of that facility are prohibited. In relation to people hospitalised for mental illness, this prohibition applies to gazetted public psychiatric hospitals where people may be detained involuntarily. The ban also applies in relation to any premises operated wholly or substantially to house intellectually disabled people.
Corroboration is not required for proof of these offences.
There are specific guidelines for reporting allegations of physical or sexual assault against people with impaired mental functioning and in the care of the Department of Human Services (DHS). The guidelines state that all allegations of physical and sexual assault must be reported to the police, even if a victim does not consent to the matter being reported. The victim may choose not to answer questions asked by the police. This would probably prevent a prosecution being initiated.
If a victim is not in the care of the DHS and is able to make an informed decision, an allegation of physical or sexual assault will often not be reported to the police against the victim’s wishes.
The Crimes Act (Vic) makes it unlawful for providers of medical or therapeutic services to sexually penetrate, or commit an indecent act on, a person with impaired mental functioning (or any other patient). The ban applies whether or not the person is an in-patient. Sexual relations include non-penetrative abuse. Corroboration is not required for proof of the offences.
For further information and support, contact:
•a Centre Against Sexual Assault; or
•the Villamanta Disability Rights Legal Service, which provides legal advice for people with a disability-related justice issue; or
•Victoria Legal Aid.
The Crimes Act (Vic) and part IIIA of the Crimes Act 1914 (Cth) (“Crimes Act (Cth)”) prescribe that a number of other activities are unlawful, including:
•abducting or detaining a person against their will with the intention of getting married to, or taking part in an act of sexual penetration with, that person or with the intention of that person marrying and taking part in an act of sexual penetration with another person;
•committing an act of bestiality (i.e. sexual contact with an animal);
•being a convicted sex offender and loitering without reasonable excuse in certain places;
•making travel arrangements to facilitate sex with children;
•engaging, while overseas, in sexual intercourse or in an act of indecency with a person under 16; and
•procuring a child for making or producing child pornography.