Indecent Assault - Armstrong Legal Melbourne

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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Sexual Assault (Vic)

In Victoria, the maximum penalty for sexual assault is 10 years imprisonment. The offence is contained in section 40 of the Crimes Act 1958.

What the Police Must Prove

To find a person guilty of this offence, the prosecution must prove beyond a reasonable doubt that they:

  1. Intentionally touched the victim;
  2. The touching was sexual
  3. The accused either:
    1. Was aware that the victim was not consenting or might not be consenting; OR
    2. Did not give any thought to whether the victim was not consenting or might not be consenting.

Sexual Assault or rape?

An offence under section 40 is closely related to the offence of rape. However, to prove a person committed rape, it must be proved that the victim was sexually penetrated without his or her consent. To find a person guilty of sexual assault, the court must be satisfied only that the victim was sexually touched without his or her consent.

Sexual assault is the same offence that is known as indecent assault in some jurisdictions.

Possible Defences to sexual assault

A person charged with this offence may argue in their defence:that the victim consented to the touching. However, it is not a defence to a charge of sexual assault that the accused mistakenly believed that the victim was consenting.

What Court will Hear this Matter?

The matter 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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