What is Groping?
Groping is defined as touching someone’s body in order to get sexual pleasure, usually when the person does not like it. The act can include touching someone’s buttocks, breasts, or genitals, either over or under clothing. Though often associated with momentary instances in crowded places, the emotional impact of groping can last much longer.
In Australia, the term groping has both formal and informal meanings, depending on the context. Formally, to “grope” simply means to feel about or search for something blindly or uncertainly, often using one’s hands. Informally, however, “groping” is defined as touching someone’s body for sexual pleasure, usually when it is unwanted or non-consensual.
In legal terms, groping often constitutes sexual assault under Australian law, depending on the specific circumstances and jurisdiction. While groping may not always be criminal if consensual, non-consensual groping is criminalised as sexual assault under Victorian law.
See here for specific information on consent law related to sexual offences.
Is groping sexual assault?
In Victoria, groping can be considered a form of sexual assault, but only if it is done without the other person’s consent. Consent plays a crucial role in determining whether an act of groping is a criminal offence.
While people may, in a consensual context, engage in touching that could be described as “groping,” such as in a romantic relationship, groping without consent constitutes sexual assault under section 40 of the Crimes Act 1958, with penalties of up to 10 years’ imprisonment.
The prosecution must prove the following elements, beyond reasonable doubt, for a jury to find an accused person guilty of sexual assault:
- the accused person (A) intentionally touched another person (B);
- the touching was sexual;
- B did not consent to the touching; and
- A did not reasonably believe that B was consenting to the touching.
The element of intentional, non-consensual touching is central to defining groping as sexual assault. This offence replaced the previous offence of indecent assault in 2015, which did not require proof that the offender lacked a reasonable belief in consent. The revised sexual assault law now requires that an offender either knows the other person does not consent or cannot reasonably believe there was consent.
What constitutes consent regarding groping?
- Consent is central to determining whether sexual touching constitutes consensual contact or unlawful groping (sexual assault) in Victoria. Under section 36 of the Crimes Act 1958, consent is defined as a “free and voluntary agreement” to engage in each specific sexual act. For groping or any sexual touching to be consensual, both parties must actively and mutually agree, with clear communication indicating that each person consents.
Victorian law emphasises that consent is never to be assumed and that it requires ongoing and mutual communication throughout the interaction (s37A). This means that each person should actively confirm the other’s willingness to participate in a way that leaves no ambiguity.
Examples of non consent to groping
- Non-consensual groping or sexual assault occurs when any form of sexual contact, including intentional touching, takes place without the free and voluntary agreement of all parties involved. In Victoria, section 36 of the Crimes Act 1958 outlines multiple circumstances in which a person does not consent. For example, silence or lack of resistance—where a person does not verbally or physically object—does not equate to consent. Similarly, prior consent to sexual behaviour does not imply ongoing consent to further or different acts.
- Non-consensual sexual contact also occurs if a person submits due to force, threats, coercion, or fear of harm or if they feel pressured by an authority figure, such as a teacher or employer (s36AA). Consent is invalid if the person is asleep, unconscious, or so intoxicated that they are unable to comprehend or communicate consent (s36AA). Other examples include scenarios where someone misleads another about the nature of the act (such as pretending it is for medical purposes) or where someone withdraws consent partway through the act, making any continued activity non-consensual.
Sentencing outcomes for groping
- According to the Sentencing Advisory Council, in the 10 years to 2019, the police recorded almost 21,500 sexual assault offences (including indecent assault) that would likely constitute groping, with 3,644 of these offences sentenced in the courts. Of these offences, 71% were sentenced in the Magistrates’ Court and 29% in the higher courts.
- In the higher courts, in the five years to 30 June 2021, the most common sentence was imprisonment (70% of charges), with an average total effective sentence of 2.25 years (see SACStat). In the Magistrates Court, the most common sentence was a community corrections order (35.3%), with an average total effective sentence of 7 months (see SACStat).
The following case summaries offer examples of the range of sentences imposed by the higher courts for groping-related offences.
Sexual assault x 5: 23 months imprisonment
- In DPP v Siwee in the County Court of Victoria, the accused pleaded guilty to five charges of sexual assault and one charge of attempted sexual assault. The incidents involved random acts of groping of women at night in Melbourne. The accused was 21 years old, isolated, and dealing with depression and alcohol abuse. The judge sentenced the accused to 23 months imprisonment, considering early pleas, remorse, and personal circumstances.
Indecent assault: 18 months imprisonment
- In JF, heard at the County Court of Victoria, the accused was convicted of indecent assault. The offence occurred near the Yarra River in Fairfield on January 2, 2014. The accused resided at a facility as part of parole conditions for previous armed robbery convictions. The victim, a 27-year-old woman, was attacked while walking. The accused threw her to the ground, restrained her, placed his hand down her skirt on her vagina over her clothing and tried to feel and grope her. The accused was sentenced to 18 months imprisonment with a non-parole period of 12 months. He was also required to register under the Sex Offenders Registration Act for eight years.
Sexual assault: 15-month CCO
- In Papak, heard in the County Court of Victoria, the accused pleaded guilty to a charge of sexual assault at Goldfingers club in Melbourne. The complainant, an exotic dancer, was engaged for a private dance during which the accused groped her vagina with his fingers. The accused was sentenced to a 15-month community correction order with treatment and rehabilitation conditions. The sentencing judge ruled out imprisonment due to the accused’s guilty plea, reasonable prospects of rehabilitation and mental health considerations.
Controversial groping cases
Outrage has followed an Italian case in which a school caretaker was cleared of charges for alleged sexual assault of a student. The 17-year-old student at a school in Rome reported being groped by the caretaker as she walked up a staircase with a friend. She reported that she was adjusting her pants to her waist when she felt hands go down her pants, touching her buttocks before the man grabbed her underwear and lifted her about an inch.
The caretaker admitted touching the student, though he denied putting his hands in her pants, stating that the touching was a joke. Noting that her friend had witnessed the incident, the trial judges accepted the student’s account. However, in reaching a not guilty verdict, the judges ruled that there were “margins of doubt” about the “voluntary nature of the violation of the girl’s sexual freedom … considering the very nature of touching the buttocks, for a certainly minimal time… in a handful of seconds”. Furthermore, the judge added that the actions were without “libidinous intent” and was merely a “clumsy joke”.
While an analysis of this decision is beyond the scope of this article, the Italian judges were subject to wide criticism following the decision.
Summary of groping in Victoria
Groping involves touching another person in a sexual manner, and when non-consensual, it constitutes sexual assault under the Crimes Act 1958 in Victoria. While consensual touching is not criminal, non-consensual groping is treated as a serious offence. Individuals found guilty of sexual assault can face severe penalties, including imprisonment, reflecting the law’s commitment to protecting personal autonomy and safety.
Where will my case be heard?
- Groping cases will ordinarily be heard in the Magistrate Court. They are treated seriously. The maximum penalty for a groping case that relates to a sexual assault charge is 10 years.
Should I get a lawyer if I am facing Groping Charges?
- Absolutely. This type of offence is treated very seriously by the judiciary. Dribbin & Brown Criminal Lawyers are sex offence specialists. Possible outcomes in relation to this type of case are an immediate term of imprisonment and sex offence registration. If you have been charged with a groping offence, make sure you contact our office today to ensure you get the very best representation at court.
