Assault With Intent to Commit a Sexual Offence

In Victoria, the offence of assault with intent to commit a sexual offence carries a maximum penalty of 15 years imprisonment.  The offence is contained in section 42 of the Crimes Act. The offence was introduced in 2015 and replaced the old offence of assault with intent to rape. The related offence of threatening to commit a sexual offence was introduced at the same time.

Assault with intent to commit sexual offence (Section 42)

To find a person guilty of assault with intent to commit a sexual offence, the police must prove beyond a reasonable doubt that the accused:

1. Intentionally applied force to a person’s body, directly or indirectly;
2. The person did not consent to that application of force;
3. At the time, the accused intended the person to take part in a sexual act; and
4. The accused did not reasonably believe that the person would consent to that act.

The offence of assault with intent to commit a sexual offence is different from the offence of attempted rape. When a person commits an assault with intent to commit a sexual offence, the act can be more remote from the commission of the sexual offence. Attempted rape requires the accused to have done an act so close in proximity to the act of rape that nothing else is left to be done but to commit the act of sexual penetration without consent.

Threat to commit sexual offence (section 43)

Under section 43 of the Crimes Act 1958, a person is guilty of making a threat to commit a sexual offence if the person:

• Makes a threat to a person to rape or sexually assault that person or another person;
• Intends the person to believe, or thinks that they will probably believe that the threat will be carried out;

The threat may be made by words or by conduct.

What court will hear this matter?

Assault with intent to rape is an indictable offence, meaning it is usually heard in the County Court. In some circumstances, it can be dealt with in Magistrates’ Court.

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