Digital penetration is just one form of sexual penetration. Digital penetration as it sounds refers to the use of the digits, that is, the fingers, the thumbs or the toes to sexually penetrate the vagina or anus of a person. The specific definition of digital penetration can be extracted from the broader definition of sexual penetration defined at section 35A of the Crimes Act 1958 and can be explained as follows:
- A person (A) digitally penetrates another person (B) if A introduces their finger/s, thumbs or toes (to any extent) into the vagina of B.
- A person (A) digitally penetrates another person (B) if A introduces their finger/s, thumbs or toes (to any extent) into the anus of B.
The Broader Definition of Sexual Penetration
A person (A) sexually penetrates another person (B) if either;
- A introduces to any extent, a part of A’s body (including the digits) or an object into B’s vagina or anus or
- A introduces to any extent their penis into B’s mouth or
- A having introduced A’s body part (including the digits) or object into B’s vagina or anus or having introduced their penis into B’s mouth, continues to leave it there.
Digital Penetration and the Law in Victoria
It is often thought by people in the general community that digital penetration or digital rape is not as serious as other forms of sexual penetration. It is true to say that up until 1991 digital penetration could not attract the charge of rape and only form the basis for the lesser charge of indecent assault, but that has all changed now with the introduction of section 35 of the Crimes Act 1958.
Further to the legislative changes, the Court of Appeal in R v Lomax [1998] 1 VR 551 has ruled that there is no hierarchy of penetration in Victoria making one form of penetration more or less serious than another. What this means is that whether someone penetrates another with their penis or digit does not mean the penetration is more or less serious. When assessing the gravity of a penetrative act all the facts of the case must be considered. When assessing the gravity of a penetrative act involving a digit, one might consider that a digital penetration does not carry the same risk of injury, infection or risk pregnancy when compared to a penetrative act involving a penis. But these are merely examples of what might be considered when looking at the surrounding circumstances. To make a proper assessment, you need to consult a lawyer.
It is also relevant to consider that in the more recent case of DPP v Shrestha [2017] VSCA 364, the Court of Appeal expressed the need to uplift sentences involving digital penetration. Common charges that relate to digital penetration are rape and sexual penetration of a minor.
If you have been charged or are about to be interviewed, you should call our office for advice. Dribbin & Brown have handled hundreds of cases involving digital penetration. Consideration of the finer nuances of the evidence, what is said on a record of interview and meticulous preparation are all crucial to achieving the right outcome. If you are facing charges or being asked to attend an interview you should engage our office to assist you.
To read a recent case study involving rape and digital penetration, follow the link. To read more about our firm’s experience with sex offences, follow the link.
Digital Penetration FAQs
What does digits mean sexually?
Generally, digits when used in reference to a sexual context, often refers to the fingers (digits) being used in a sexual way to either penetrate the vagina or anus. But digits technically also include the toes. In relation to police charges, when the charge refers to digital penetration, the charge is referring to the fingers penetrating either the anus or vagina of another person without the other persons consent, which is technically a rape not a sexual assault.
What is digital rape?
The meaning of digital rape is the digital (finger) penetration of someone’s vagina or anus without their consent. The difference between digital sex and digital rape, is the absence of consent. Digital sex, is inserting your digits into another person’s vagina or anus with their consent. Digital rape is where you insert your digits into another person’s vagina or anus without their consent. The first example is not an offence unless it relates to a minor, the second example is a very serious offence.
What is digital sexual assault?
People asking this question usually will be enquiring about “what is a digital rape?”. The difference between a digital rape and a digital sexual assault is that a sexual assault does not involve penetration. In a technical sense digital sexual assault might be touching someone sexually using your hands (ie digits), but the term does not make a lot of sense. People searching for digital sexual assault are usually trying to understand what a charge involving digital penetration without consent means.
What is digital intercourse?
Digital intercourse is the same as digital penetration and more broadly, sexual intercourse. These are all just sexual acts and are all interchangeable. The real difference is that digital penetration is a term that often used in connection with someone who has been charged with a sexual offence relating to the use of their fingers or toes (digits) to penetrate another persons vagina or anus without that persons consent. Sexual intercourse and digital intercourse relate to the act of sex. It is the issue of consent that turns on whether the term relates to a criminal charge.
What are the penalties for digital penetration without consent?
The penalties are severe. Digital penetration without consent is rape. Rape attracts mandatory gaol and is considered a standard sentencing offence in Victoria. If you are found guilty of digital penetration without consent, the maximum penalty is 25 years gaol. If you are facing these types of charges you should immediately contact an experienced criminal lawyer for assistance, preferably before you speak to police.
