Sexual Assault Lawyers Melbourne

What does it mean to be Charged with Sexual Assault?

Being charged with sexual assault under Section 40 of the Crimes Act 1958 (“CA”) means that the accused is alleged to have intentionally touched another person in a sexual manner without their consent, and without a reasonable belief that the other person consented to the touching.

What does the Prosecution have to prove?

The prosecution must prove each of the following elements to secure a conviction for sexual assault:

1. Intentional Touching:

• You must have intentionally touched the victim. This can include physical contact with any part of the body, directly or through clothing.

2. The Touching is Sexual:

• The act must be of a sexual nature. This can include touching intimate areas or any form of contact that is considered sexual by nature.

3. Lack of Consent:

• The person who was touched (the complainant) did not consent to the contact. Consent must be given freely and voluntarily by someone with the capacity to understand what they are consenting to.

4. Lack of Reasonable Belief in Consent:

• You did not have a reasonable belief that the complainant consented to the touching. The test of reasonableness depends on what steps the accused took to ensure that the complainant was consenting and whether those steps were sufficient.

What is Consent?

1. Definition of Consent

• Consent means a free and voluntary agreement to engage in an activity.

2. Misunderstandings About Consent

• A person does not consent just because they do not resist verbally or physically.
• A person does not automatically consent if they have previously agreed to a different act, the same act at a different time or place, or the same act with someone else.

Circumstances Where Consent is Not Given

1. Indications of non-consent

          A person does not consent if they:

• Do not say or do anything to indicate consent.
• Submit to the act due to:
  • Force or Fear: Feeling threatened or harmed, whether the threat is immediate or part of a pattern.
  • Coercion or Intimidation: Submitting because they feel pressured, regardless of when this pressure occurs.
  • Unlawful Detention: Being held against their will.
  • Abuse of Authority: Being overpowered by someone in a position of trust or authority.

3. Specific Situations

• Mistakenly believe the act is for medical or hygienic purposes.
• Engage in acts involving animals under false pretences, like thinking it’s for veterinary purposes.
• Believe a condom is used when it has been intentionally removed or not used.
• Withdraw consent after initially agreeing.

Reasonable Belief in Consent

1. Determining Reasonable Belief

• Whether someone (Person A) reasonably believes another person (Person B) is consenting depends on the circumstances.

2. Importance of Inquiry

• If Person A does not take steps to confirm Person B’s consent before or during the act, their belief that Person B consents is not reasonable.

3. Exceptions for Cognitive Impairment

• If Person A has a cognitive impairment or mental illness (not caused by self-induced intoxication), and this impairment affects their ability to check for consent, this may impact the determination of reasonable belief.

Penalties for sexual assault:

Sexual assault is considered a serious indictable offence, carrying a maximum penalty of 10 years imprisonment (Level 5 imprisonment).

Magistrates' Court:

• The most common sentence for sexual assault charges is a community correction order (35.5% of cases).

Higher Courts (County and Supreme Courts):

• The most common sentence is imprisonment (70% of cases).
• Sentences can range from less than 1 month to 8 years, depending on the severity of the offence and mitigating factors (e.g., the offender’s criminal history, the nature of the assault, and any aggravating circumstances).

Factors and Defences to Consider:

1.Consent as a Defence: You can argue that the complainant freely consented to the sexual act.

• Consent can be verbal or non-verbal, but it must be enthusiastic, mutual, and ongoing.
• Consent can be withdrawn at any time. Continuing sexual activity after consent has been withdrawn constitutes an offence.
• Sections 36A and 36AA of the CA define the legal boundaries of consent.

2.Reasonable Belief in Consent: You may claim that you genuinely and reasonably believed the complainant consented, even if this belief was mistaken.

• Under Section 36A of the CA, this defence applies if you can show that due to a specific condition, you did not take the necessary steps to ensure consent.
• You must prove the existence of this condition on the balance of probabilities, often requiring expert testimony or medical evidence.

3.Lack of Consent by You: You can argue that you did not consent to the sexual touching yourself and were acting under coercion or duress.

• This defence applies in situations where you were forced into sexual activity under threats of harm, blackmail, or if you were involuntarily intoxicated (e.g., if your drink was spiked).

This is a non-exhaustive list of potential defences. With more information, we can tailor a defence strategy specific to your circumstances. The criminal defence lawyers at MK Law are experts in handling sexual assault cases and can provide you with professional advice on the most suitable defences.

Where will my case be heard?

Offences including sexual assault charges will be heard in the County or Supreme Court of Victoria. ‘Summary Jurisdiction Applications’ can be made where your case (not including rape), can be heard in the Magistrates Court, however this is decided on a case-by-case basis.

Sex Offences Charges

• Offence to Perform Female Genital Mutilation
• Intention of Having Prohibited Female Genital Mutilation Performed
• Sexual Activity with the Corpse of Human Being
• Rape or Rape by Compelled Penetration
• Sexual Assault
• Sexual Assault by Compelling Sexual Touching
• Assault with Intent to Commit a Sexual Offence
• Threat to Commit a Sexual Offence
• Procuring Sexual Act by Threat or Procuring Sexual Act by Fraud
• Administration of an Intoxicating Substance for a Sexual Purpose
• Failing to Comply with Sex Offender Reporting
• Abduction or Detention for a Sexual Purpose
• Furnishing False or Misleading Information
• Indecent Act with a Child Under the Age of 16
• Sexual Activity Directed at Another Person
• Sexual Penetration of a Child Under the Age of 12
• Sexual Penetration of a Child Aged 16 or 17 Under Care, Supervision, or Authority
• Sexual Assault of a Child Aged 16 or 17 Under Care, Supervision, or Authority
• Sexual Activity in the Presence of a Child Aged 16 or 17 Under Care, Supervision or Authority
• Causing a child aged 16 or 17 under care, supervision, or authority to be present during sexual activity
• Persistent Sexual Abuse of a Child Under the Age of 16
• Encouraging a Child Aged 16 or 17 Under Care, Supervision or Authority to Engage in, or Be Involved in, Sexual Activity
• Grooming for Sexual Conduct with a Child under the Age of 16
• Loitering Near Schools Etc by a Sexual Offender
• Failure by a Person in Authority to Protect a Child from a Sexual Offence

• Abduction or Detention of a Child Under the Age of 16 for a Sexual Purpose
• Causing or Allowing a Sexual Performance Involving a Child
• Inciting or Offering a Sexual Performance Involving a Child
• Facilitating a Sexual Offence Against a Child
• Sexual Penetration of a Child or Lineal Descendent
• Sexual Penetration of a Stepchild
• Sexual Penetration of a Parent, Lineal Ancestor or Stepparent
• Sexual Penetration of a Sibling or Half-Sibling
• Sexual Offences Against People with Impaired Mental Functioning (Repealed 2016)
• Child in the Production of Child Abuse Material
• Distributing Child Abuse Material
• Administering a Website Used to Deal With Child Abuse Material
• Accessing Child Abuse Material
• Assisting a Person to Avoid Apprehension
• Sexual Assault of a Person with Cognitive Impairment or Mental Illness
• Using Force, Threat etc. to Cause Another Person to Provide Commercial Sexual Services
• Causing Another Person to Provide Commercial Sexual Services in Circumstances Involving Sexual Servitude
• Aggravated Sexual Servitude
• Deceptive Recruiting for Commercial Sexual Services
• Bestiality
• Child Stealing
• Bigamy
• Abortion Performed by Unqualified Person
• Concealing the Birth of a Child

What happens next?

If you have been charged with sexual assault, your next step is to schedule an initial consultation with an expert at MK Law, where you’ll discuss your case in detail, allowing the lawyers to assess your situation and provide preliminary advice. They will then review the information, possibly request additional evidence or documentation, and tailor a defence strategy specific to your circumstances. MK Law will keep you updated throughout the process, offering legal advice and preparing you for any court appearances. If your case proceeds to court, MK Law will represent you, advocating for the best possible outcome. To start, simply reach out by phone on 1800 130 120 or through their website to arrange the consultation.

For more information on specific charges regarding sexual assault, see our other publications.