Sexual Assault (Vic)

Sexual assault is a serious offence in Victoria and carries a maximum penalty of 10 years imprisonment. The offence of sexual assault consists of the sexual touching of another person without the other person’s consent. It is contained in section 40 of the Crimes Act 1958. This page deals with sexual assault and the defence of consent in Victoria.

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 their consent. To find a person guilty of sexual assault, the court must be satisfied only that the victim was sexually touched without their consent.

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

Elements of sexual assault

In order for a court to find a person guilty of sexual assault, the prosecution must prove beyond a reasonable doubt that the accused:

1. intentionally touched the victim;
2. the touching was sexual
3. either was aware that the victim was not consenting or might not be consenting; OR did not give any thought to whether the victim was not consenting or might not be consenting.

Defence of consent

The only legal defence to a charge of sexual assault is consent. The defence of consent may succeed in either of two ways:

• that the alleged victim consented
• that the accused believed on reasonable grounds that the alleged victim consented

Under section 36 of the Crimes Act 1958, a person consents to sexual activity if they freely and voluntarily agree. Under that provision, a person does not consent simply because they do not resist either physically or verbally. A person does not consent simply because they consented to other acts on other occasions.

Under section 36AA of the Crimes Act 1958, a person is not to be taken to have consented if:

• they did not do or say anything to communicate consent
• they submit because of force, fear of force, or harm or fear of harm.

Affirmative consent

The Victorian definition of consent is what is known as an affirmative consent model of sexual consent. This means that a person cannot be presumed to have consented to a sexual act. They must have done or said something to indicate their consent.

The affirmative consent model requires any person who engages in sexual activity with others to ensure they have a clear indication that the other person consents to the activity.

Victoria adopted the affirmative consent model in 2022. The changes were made after years of pressure to bring the state’s sexual consent laws into line with community expectations.

Has an offence been committed?

A person charged with sexual assault will be found guilty if:

• the physical act is proven; and
• the other person did not consent; and
• the accused did not have a reasonable belief that the other person consented.

A person charged with sexual assault will be found not guilty if:

• the physical act is not proven; or
• the other person consented; or
• the accused had a reasonable belief that the other person consented.

Jurisdiction

Sexual assault is an indictable offence, meaning it is generally heard in the County Court. In some circumstances, these matters can be finalised in the Magistrates Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.