Understanding Sexual Assault

SEXUAL ASSAULT (previously called Indecent Assault)

Until July 2015 this was called Indecent Assault.

What is the law?

The law is outlined in section 40 of the Crimes Act 1958. It states that a person commits Sexual Assault if they: Intentionally and sexually touch another person without that person’s consent and do not reasonably believe that the touching is consensual.

What is the maximum penalty?

A person found guilty of Sexual Assault can receive up to a maximum of 10 years imprisonment.

They may also be placed on the Sex Offender Register, which involves many additional obligations. Click here for more information.

What do the police need to prove?

The police (or prosecution) must prove each of the following elements beyond a reasonable doubt:

Click here for more information on the meaning of ‘beyond a reasonable doubt’.

1. That the accused intentionally touched another person;
2. That the touching was sexual;
3. That the other person did not consent to the touching; and
4. That the accused did not reasonably believe the other person consented to the touching.

What is intentional “touching”?

Defined in section 35B of the Crimes Act 1958, the touching may be done with any part of the body or anything else, or through anything, including anything worn by the person doing the touching or by the person touched.

The act of touching must be voluntary, meaning it was within the control of the person doing the touching.

What is “sexual” touching (previously called indecent touching)?

There must be a sexual connotation to the touching. This could refer to the area of the body that was touched, including the genital area, buttocks or breasts. This could also refer to the fact that the person doing the touching seeks or gets sexually aroused or gratification from the touching. Any other aspect of the touching could render it “sexual” including the circumstances in which it is done. Whether a certain type of touching is considered “sexual” is determined by common understandings of social behaviour. It is not a defence if the accused believed that the touching was not sexual.

Indecent Touching

Whether touching is ‘indecent’ is judged according to community standards of decency.

What is “consent”?

The meaning of consent has evolved over the years and now, since July 2023, consent is defined under section 36 of the Crimes Act 1958 as “free and voluntary agreement”. This provision also contains a list of circumstances in which a person does not consent to sexual activity.

This definition of consent reflects the affirmative consent model, which requires a person to proactively take steps to find out if there is consent. A person does not consent to an act just because they do not resist the act verbally or physically.

Both words and actions (non-verbal conduct) can constitute consent. However, consent must be obtained for each different sexual activity. Consent that has been given for one act, does not amount to consent for another. In addition, consent that has initially been given can be withdrawn at any time, before or during sexual activity. Consent must be clearly and mutually communicated.

Sometimes consent is irrelevant. For example, it is not a defence that someone consented to incest.

What is “reasonable belief in consent”?

The prosecution must prove that the accused did not believe that the complainant was consenting (including giving no thought as to whether the complainant was consenting), or that the accused believed the complainant was consenting, but the belief was not reasonable in the circumstances.

Whether someone’s belief that the other person is consenting is reasonable depends on the circumstances, including any steps that were taken to find out whether the other person consented. In practice, this means that a belief is not reasonable unless the accused person said or did something to find out whether the other person consented.

Note that if an accused person has a cognitive impairment or mental illness that is a substantial cause of them failing to say or do anything to find out if a person consents, they must provide proof on the balance of probabilities (s 36A Crimes Act).

If the alleged offending occurred before July 2017, a different definition of “reasonable belief in consent” may apply. It is extremely important to engage an experienced lawyer who can thoroughly analyse your charges to represent you properly. Please contact us at directly at Gallant Law so we can help you with your specific charges.

What are the possible defences?

Consent

If the sexual touching was consensual, this is not a Sexual Assault.

The accused reasonably believed there was consent

A person who reasonably believed that there was consent is not guilty of Sexual Assault. However, in light of the newest amendment to the law, the accused must have actively made enquiries to find out if the other person consented.

The accused did not consent to the sexual touching

If the accused did not consent to the sexual touching, then they cannot be found guilty. For example, if the accused was forced to do the touching as a result of threats or fear of harm, or involuntary intoxication from their drink being spiked.

Medical/Hygienic purposes

If the alleged touching was performed in the course of a procedure for genuine medical or hygienic reasons then this is not considered Sexual Assault.

Which court will I be going to?

Sexual Assault is an indictable offence, usually heard in the County Court, however, some Sexual Assault charges can be heard in the Magistrates’ Court.

What should I do now?

Sexual Assault is a very serious offence with potentially severe penalties. If you are charged with Sexual Assault reach out to one of our experienced lawyers at Gallant Law. Each case is unique and complex and the team at Gallant Law will take the time and care necessary to provide you with the best possible representation.

Contact Gallant Law on 03) 9070 9885 or welcome@gallantlaw.com.au to speak of one of our lawyers immediately. We service all of Australia.

*Please note this article only relates to a Victorian offence. For information on other states and territories within Australia, please contact our office.

Our website does not give legal advice

This material is produced by Gallant Law lawyers. It is intended to provide general information only, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should always be sought before acting or failing to act.

Article by Lauren Cassimatis – Principal lawyer

Meet Lauren Cassimatis

Principal Lawyer, Director & Founder | Accredited Criminal Law Specialist Lauren is one of Victoria’s leading criminal lawyers and a Law Institute of Victoria Accredited Specialist in Criminal Law.