Sexual Offences and Penalties in Victoria (VIC)

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Australian National Character Check (ANCC) makes every effort to provide updated and accurate information to its customers. However due to the continuously changing nature of legislations for the Commonwealth and various States and Territories, it is inevitable that some information may not be up to date. The information on the website is general information only. The contents on the website do not constitute legal or professional advice and should not be relied upon as a substitute for legal or professional advice. While we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, suitability, accuracy or availability with respect to the information.

Victoria shows great abhorrence for offences of sexual nature, especially against the vulnerable. Typically, sexual offences across Australia and Victoria carry the most severe form of punishment.

Sexual offences are sensitive and repulsive in an offender's records and they usually remain there for life.

If an individual is convicted in a Victorian court for a sexual offence, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check.

In the majority of instances, sexual offences are dealt with as an indictable crime in Victoria.

What is a sexual offence in Victoria?

The Crimes Act 1958 (Vic) gives a comprehensive definition and description of acts, references, attempts, and connotations that constitute a sexual offence in Victoria. Usually, the crucial factor in ruling a sexual act as an offence is;

• Whether consent was given by the other party or
• The other party was aware and approved of the Act at all times.

The Act covers various acts that can constitute a sexual offence in Victoria, from Rape (sex without consent) to improper touching or indecent displays. Sexual offences can also be aggravated if an adult committed these acts against a child or a minor in Victoria.

What penalties apply to sexual offenders?

The penalties for sexual offences are severe and long-lasting, depending on the type of sexual offence and the presence of aggravation. The most severe form of a sexual offence is sex without consent (Rape), where the Court can impose penalties above 25 years imprisonment.

When a person is accused in Court, the jury/judge requires the prosecutor to prove certain relevant factors that show a sexual offence. However, the Victorian law is modified such that evidence of violence is not necessarily proof to the complainant to argue a case of Rape.

Types of Sexual offences in Victoria

The various sexual offences listed in the Crimes Act 1958 (Vic) are prohibited with varying penalties as per Victorian legislation.

Rape

Some States or Territories term it as “sex without consent”. The acts that constitute this offence are, but are not restricted to;

• Where the offender uses his genital, object or any other material to penetrate the victim without consent.
• The offender penetrates the victim's other openings (mouth, anus, and co) with their genitals.
• There was no consent for the Act, or the offender was reckless about obtaining consent.

Rape is the most severe of all sexual offences and attracts a level 2 punishment (25 years) imprisonment. However, the Court may not sentence an offender for Rape below ten years.

1. Rape by compelling another

Section 39 of the Crimes Act 1958 (Vic) also considers it rape to use any means; force, violence, threats, blackmail to cause;

• A person to penetrate another (victim), or
• To induce self penetration on another
• The party to do self penetration
• The victim to sexually penetrate an animal or be penetrated by the animal

For this case, it is necessary to establish that the victim (another party) did not give consent to the Act, or the accused was reckless about the matter of consent.

Rape by compelling another offence is a serious offence that incurs 25 years imprisonment in Victoria.

2. Sexual Assault

Assault offences are some of the most common issues handled in Australia and this includes assault offences in Victoria. Depending on the severity of the assault, the penalties can range from simple fines to imprisonment terms. However, assault with sexual references incurs more punishments.

Section 40 of the Crimes Act prescribes a level 5 imprisonment term (10 years) for guilty offenders.

Sexual assault can usually be ambiguous in Court because of the many acts that can qualify as assault. It includes all cases where the accused person sexually touches the complainant or touch them in a sensitive part of their body without consent.

If the other person never consents to the current Act, even if they previously gave consent, the accused is still guilty under the legislation.

• ✔ Where another person compels the Act

If the accused person compels another person to commit the offence (sexual assault) rather than do it, they are still guilty in the same magnitude. The person who compels the Act is the compulsory guilty party rather than the "compelled" entity.

For this case, it is irrelevant if the offender compelled the victim to touch themselves or another person sexually. The offence still attracts the same punishment of 10 years imprisonment.

3. Assault leading to a sexual offence

While a sexual offence is condemned, it is an aggravating circumstance to assault the victim or any other party in the process. It includes all cases where the accused person used any form of force, threat or “extra-physicality” that the other party did not consent to.

Furthermore, the Court can still consider a case of assault leading to the sexual Act even if the victim is not aware that force was used.

For this matter, “force” may be;

• Direct or indirect, or
• On the body, clothing or equipment.

Section 42 of the Act that lists the offence prescribes 15 years imprisonment (level 4 punishment).

4. Threat to commit a sexual offence

Whether the accused attempted to carry it out or just yelled it, it is an offence to make a verbal/physical statement to;

• Rape,
• Sexually harass,
• Indecently touch,
• Allow another party to assault sexually
• Another person (the complainant).

Threats can either be written, oral, verbal or physical. If the Court finds a person guilty of making such derogatory and fearful statements towards the complainant, they can impose up to the maximum of 5 years imprisonment (level 6 imprisonment).

5. Procuring sexual Act by threat

It is an offence to get a person to engage in a sexual act through threats or fear. For this case, a threat can either be emotional, physical, psychological or whatever medium makes the victim reasonably afraid.

The offence of procuring a sexual act through threats carries a maximum ten-year imprisonment term under section 44 of the Crimes Act.

6. Procuring sexual Act by fraud

It is an offence to misrepresent an entity or profile to engage in a sexual act. It also includes cases where a person adopts a misleading disguise or profile to trick another (victim) into engaging in a sexual act.

Section 45 of the Crimes Act stipulates this offence and prescribes punishments up to 5 years imprisonment.

7. Drugging or intoxicating a person for sexual purposes

It is an offence for a person to tamper or lull their cognitive abilities for sexual purposes. Section 46 prohibits all actions where the person administers the intoxicating substance or causes another person to administer it for a sexual purpose.

Section 46 of the Act considers it an offence worthy of a ten-year imprisonment term. Also, consent from an intoxicated person is not permissible or valid in Court.

8. Abduction or detaining a person for a sexual purpose

It is an offence under Victoria and Australian laws to detain a person for sexual purposes irrespective of their marital status. It includes cases where a person takes another person away without their consent/will.

Under section 47 of the Act, the Court can impose up to 10 years maximum penalty (level 5 imprisonment).

9. Sexual offences against children

Most sexual offences have aggravating circumstances when the victims are children. In straightforward terms, Children cannot consent to any sexual act under the law. Therefore, it is immaterial in Court if the defendant (adult) claims consent from the child for the act.

• If an adult commits a sexual offence of penetrating a child with their genitals,
• Sexually penetrate a Child,
• Causes a child to penetrate themselves sexually,
• Causes them to penetrate another person sexually,
• Other similar acts of equal severity,

The Court can issue up to 25 years imprisonment (level 2 imprisonment).

Where the child is between 16 and 17 years but under the offender's care

Suppose the child is within the ages of 16 and 17 and was under the legal care of the offender (guardian, teacher, instructor). In that case, the offender is liable to 10 years imprisonment (level 5 imprisonment).

10. Sexual assault of a child under 16 years

It is an offence to improperly and indecently touch a child in Australia or Victoria. Since a child cannot give consent, it is already considered an offence. The Act stipulates punishments of 10 years maximum prison term and a minimum sentencing term of 4 years.

If the child is between 16 and 17, the Act stipulates a five-year maximum imprisonment term.

Sexual activity under the presence of a child under 16

It is an offence in Victoria to perform immodestly or other indecent acts or displays before a child. Anyone who intentionally performs a sexual act (abhorrent by community standards) before a child under 16 years is liable to 10 years imprisonment (level 5 imprisonment). Otherwise, the Court cannot issue less than four years imprisonment penalties.

If the child is between 16 to 17 years, the offender will get a lesser but significant term of 5 years imprisonment.

It is also an offence to encourage a child to engage in sexual activity or cause a child to be present during sexual activity.

11. Abduction or detention of a child under 16 years

Anyone who detains/abducts a child against their will or that of their legal guardian for sexual acts/intents is guilty of this offence. Section 49P of the Crimes Act prescribes level 5 (10 years maximum) punishment for such an offence.

12. Allowing a child to take part in a sexual performance

A person who intentionally enables a child to partake in a sexual performance, whether paid or not, is guilty of an offence. Under section 49Q, the offence carries ten-year maximum imprisonment (level 5 penalty).

It includes any sexual performance, Live or recorded digital tapes of the performance.

13. Incest Offences

Offences of incest are usually punished depending on the age of the parties involved and “related-ness”. The offence of incest occurs when a person has sexual intercourse with any of their close relative; brother, sister, aunt, grandchild, and other lineal ancestors.

Section 44 of the Act stipulates up to 7 years imprisonment for adults who engage. However, where the adult engaged with a close relation to their child, they are liable to 25 years imprisonment term.

Incest is the only sexual offence that does not dwell on consent. It is also incest if the accused lives with the victim's parent but is not married.

There are numerous other sexual offences in Victoria and Australia drawn from these listed here. The Court can upgrade a matter if all evidence points to a more significant offence being committed than the original charge.

What is Consent in Victoria?

If the offender or defendant cannot prove that the complainant consented to the sexual Act, the Court will find them guilty of the sexual offence. Consent is essential before any sexual act, but not all "Consent" is admissible in the law court.

For example, the Court does not accept consent given by a child under 16. The law marks them incapable of giving consent. Also, the Court will not consider the consent if it was given when;

• The victim had reason to fear for their lives.
• The victim is threatened, forced, coerced or bullied
• The other party was intoxicated by alcohol or other beverages
• The party was mistaken about the nature of the Act
• The other party is mistaken as to the identity.

Will a Sexual Offence show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a sexual offence, the offence will show up as a disclosable court outcome (DCO) on the results of their Nationally Coordinated Criminal History Check.

Individuals can obtain a Nationally Coordinated Criminal History Check online via the Australian National Character Check - ANCC® website.

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