Sexual offences

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.

Rape

There are two offences for rape under sections 38 and 39 of the Crimes Act: rape and rape by compelling sexual penetration.

A person commits rape if they intentionally sexually penetrate another person, without the other person’s consent and they do not reasonably believe that the other person consented to the penetration.

A person commits a compelled rape when they intentionally cause another person to sexually penetrate another without the person’s consent and they do not reasonably believe that the person consented to the penetration. (SeeConsent”.)

A person sexually penetrates another when they introduce a part of their body or an object into the mouth, anus or vagina of another person.

Each of these crimes is punishable by up to 25 years imprisonment.

Sexual assault

There are two offences for sexual assault under sections 40 and 41 of the Crimes Act: sexual assault and sexual assault by compelling touching.

A person commits a sexual assault if they intentionally sexually touch another person, without the other person’s consent and they do not reasonably believe that the other person consented to the touching.

A person commits a compelled sexual assault when they intentionally cause another person to sexually touch another without the person’s consent and they do not reasonably believe that the person consented to the touching. (SeeConsent”.)

Each of these crimes is punishable by up to 10 years imprisonment.

Sexual activity with a corpse

Under section 34B of the Crimes Act, a person commits this offence when they intentionally engage in a sexual activity involving a human corpse. This crime is punishable by up to five years imprisonment.

Bestiality

A person commits this offence when they penetrate an animal’s anus or vagina, or they allow an animal to penetrate their anus or vagina (s 54A Crimes Act). This crime is punishable by up to five years imprisonment.

Female genital cutting

Female genital cutting (also called female circumcision and female genital mutilation) is defined in the Crimes Act (s 15). It is an offence to perform female genital cutting (s 32 Crimes Act). It is an offence to take a person, or arrange for a person to be taken, out of Victoria with the intention of having female genital cutting performed on them (s 33 Crimes Act). Each of these crimes is punishable by up to 15 years imprisonment.

Assault with the intent to commit a sexual offence

Under the Crimes Act (s 42), a person commits this offence if they intentionally apply force to another person for the purpose of making them take part in a sexual act that they would not consent to. This crime is punishable by up to 15 years imprisonment.

Threat to commit a sexual offence

Under section 43 of the Crimes Act, a person commits this offence if they threaten to rape or sexually assault a person. This crime is punishable by up to five years imprisonment.

Procuring a sexual act by threat or fraud

Under section 44 of the Crimes Act, a person commits this offence if they force someone to take part in a sexual act with them, or with another person, by threatening to harm them or another person if they do not comply. This crime is punishable by up to 10 years imprisonment.

Under section 45 of the Crimes Act, it is an offence for a person to force someone to take part in a sexual act with them, or with another person, by making false or misleading representations. Representations can be actions or words. This crime is punishable by up to five years imprisonment.

Administration of an intoxicating substance for a sexual purpose (“date rape”)

Under section 46 of the Crimes Act, a person commits this offence if they administer an intoxicating substance, or they cause an intoxicating substance to be taken, with the intention of impairing that person’s capacity to give or withdraw consent to take part in a sexual act. (SeeConsent”.) An “intoxicating substance” is any substance that affects a person’s senses or understanding (i.e. drugs or alcohol). This crime is punishable by up to 10 years imprisonment.

Just because a person voluntarily drinks alcohol or takes drugs does not mean that they are in any way responsible for a sexual assault happening to them. You cannot consent if you are unconscious or overwhelmingly affected by drugs and/or alcohol.

Sexual exposure

Under section 19 of the Summary Act, it is an offence for a person to intentionally expose their genitals within view of a public place. This crime is punishable by up to two years imprisonment.

Distributing intimate images and “revenge porn”

Under section 41DA of the Summary Act, a person illegally distributes an intimate image when they:

intentionally distribute an intimate image of another adult; and

that distribution is contrary to community standards of acceptable conduct.

This crime is punishable by up to two years imprisonment.

Distributing intimate images is not a crime if the person in the images consented to the distribution of the images and the way they were distributed.

Under the Summary Act (s 41DB), it is an offence to threaten to distribute intimate images of another person (this is known as “revenge porn”). The threat can be made by any conduct and may be explicit or implicit (i.e. it can be obvious or implied). In establishing that a threat has been made, it is enough if the person in the images believes the threat will be carried out. This crime is punishable by up to one year imprisonment.

Revenge porn could also be punishable under section 474.17 of the Criminal Code Act 1995 (Cth). Under this Act, it is an offence to use a carriage service to menace, harass or cause offence. “Carriage service” is defined in the Telecommunications Act 1997 (Cth); a carriage service includes most electronic communication (e.g. social media, texting, emails). This crime is punishable by up to three years imprisonment.

Related offences under the Summary Act include:

intentionally observing a person’s genital or anal region with a device (s 41A); this crime is punishable by up to three months imprisonment;

intentionally visually capturing a person’s genital or anal region (s 41B); this crime is punishable by up to two years imprisonment;

distributing visually captured images of a person’s genital or anal region (s 41C); this crime is punishable by up to two years imprisonment.

The main defence to these offences is consent from the person depicted in the images.

Many people do not report revenge porn crimes because they are embarrassed and scared. Sometime people voluntarily take intimate photographs and send them to their partner; this does not mean they consent to the distribution of the images.

If you need support or help in relation to revenge porn, see the services listed in Contacts.

Abduction or detention for a sexual purpose

Under the Crimes Act (s 47), a person commits this offence if they take, or cause someone to take, a person away/detain them without their consent. This is done with the intention that the person will take part in a sexual act with them or another person. This crime is punishable by up to 10 years imprisonment.

Sexual servitude

What is sexual servitude?

Under the Crimes Act (s 53B), a person commits the offence of sexual servitude if they cause someone to provide, or continue to provide, commercial sexual services, and:

they do this by using force, threats, unlawful detention, fraud or an excessive debt; or

they know, or are reckless as to whether this person is free to stop providing commercial sexual services because of the use of force, threats, unlawful detention, fraud or an excessive debt.

Under the Crimes Act (s 53D), a person commits the offence of sexual servitude if:

they conduct a business that provides sexual services; and

the person providing sexual services is not free to stop providing those services because of the use of force, threats, unlawful detention, fraud or a manifestly excessive debt.

“Conducting a business” includes taking part in the management of the business, exercising control of the business, or providing finance for the business.

Each of these crimes is punishable by up to 15 years imprisonment.

Causing another person to provide commercial sexual services in circumstances involving sexual servitude

Under the Crimes Act (s 53C), a person commits the offence of causing another person to provide commercial sexual services in circumstances involving sexual servitude if:

they cause a person to provide, or continue to provide, commercial sexual service; and

they do this by using force, threats, unlawful detention, fraud or an excessive debt; or

they know that this will probably cause the person to continue providing commercial sexual services, or not be free to leave the place where they provide sexual services.

Aggravated sexual servitude

Under the Crimes Act (s 53E), a person is guilty of aggravated sexual servitude if they have committed any of the offences listed above to a person under the age of 18 years, where the offender intended to commit the offence against a person of that age. This crime is punishable by up to 20 years imprisonment.

Deceptive recruiting for commercial sexual services

Under the Crimes Act (s 53F), a person commits the offence of deceptively recruiting for commercial sexual services if they intend to induce another person to enter into an engagement to provide commercial sexual services and they deceive that person about the engagement involving the provision of sexual services. This crime is punishable by up to five years imprisonment.

Aggravated deceptive recruiting for commercial sexual services

A person commits the offence of aggravated deceptive recruiting for commercial sexual services if they commit the above to a person under the age of 18 years, and they intended to commit the offence against a person of that age (s 53G Crimes Act). This crime is punishable by up to 10 years imprisonment.

Incest

Under section 50C and 50D of the Crimes Act, a person commits incest if they take part in an act of sexual penetration with someone they know to be their child, step-child, or other lineal descendant, or their de facto partner’s child, step-child or other lineal descendant. This crime is punishable by up to 25 years imprisonment for each offence.

Under section 50E of the Crimes Act, a person commits incest if they take part in an act of sexual penetration with someone who is over the age of 18, who they know to be their father, mother, other lineal ancestor, step-father or step-mother. This crime is punishable by up to five years imprisonment.

“Lineal ancestor” and “descendant” are defined in section 50A of the Crimes Act.

An exception to the offences in section 50D and 50E of the Crimes Act is if one of the people is a step-parent and at no point has the other person spent any time under their authority, care or supervision, and at the time of the act, they were at least 18 years (see s 50J Crimes Act).

Under section 50F of the Crimes Act, a person commits incest if they take part in an act of sexual penetration with someone who they know to be their sister, half-sister, brother or half-brother. This crime is punishable by up to five years imprisonment.

If you are compelled by force or otherwise to engage in incest without your consent, you are not guilty of an offence (see s 50H Crimes Act).

You cannot consent to incest (see s 50K Crimes Act). For more information about consent, seeConsent”.