Sexual Assault

Exceptions and defences to sexual assault

False Accusations & mistaken identity

A defence can be established to sexual assault if the defendant did not sexually assault the complainant and a false or mistaken accusation was made.

Issues of mistaken identity or false accusations against persons can be challenged during cross-examination of the complainant in committal proceedings or at jury trial.

Consent as a defence to sexual assault

A defence to sexual assault may be established if the complainant or victim consented to the sexual act. Verbal or nonverbal cues may indicate consent, but both parties must consent enthusiastically, and consent must be ongoing, with mutual understanding of the sexual behaviour intended.

Circumstances surrounding the issue of consent are addressed in s 36A and s 36AA of the Crimes Act 1958.

For further information, see ‘consent as a defence to sex offences’.

Reasonable belief in consent

A defence can be established if there is evidence that the accused held a reasonable belief that the complainant was consenting to the sexual touching.

For example, if the accused did or said something to determine whether the complainant consented within proximity to the sexual act, the accused is considered to have held a reasonable belief in consent. Therefore, even if the accused wrongly believed the complainant consented, if the belief is reasonably held in the circumstances, there is a valid defence.

The accused’s cognitive impairment or mental illness

An accused person with a cognitive or mental impairment (other than the effects of voluntary intoxication) that causes them not to say or do something to determine whether the complainant consents may have a valid defence under s 36A.

The presence of a cognitive impairment affecting an accused’s capacity to determine whether the complainant consents must be proved by the accused on the balance of probabilities for this defence to be available (s36A(4)).

The accused did not consent to the sexual touching

A defence to sexual assault may be established under s 50H if the accused did not consent to engage in the touching. This situation may arise if the defendant engaged in the sexual act under force, threat or fear of bodily harm or if the act occurred while involuntarily intoxicated with drugs or alcohol (such as if their drink was spiked).

Exceptions for medical procedures

Exceptions to the offence of sexual assault and compelling assault by sexual touching apply if the act was performed in the course of a procedure for genuine medical or hygienic reasons (s 48A).

A mistaken belief that the touching was not sexual

It is not a defence to a charge of ‘sexual assault’, ‘compelling assault by sexual touching‘ or ‘sexual activity directed at another person‘ if the accused was under a ‘mistaken but honest and reasonable belief that the touching was not sexual’ (section 48B of the Crimes Act 1958).

Consent and intoxication in sexual assault

The directions in relation to how a jury can assess an accused person’s reasonable belief in consent have been overhauled since 2017. Under the Crimes Act 1958 s 36B, it is clear that a jury cannot consider the accused’s intoxication (unless it was not self-induced) when assessing reasonable belief in consent. Instead, the jury must objectively consider whether the accused’s belief was reasonable from the perspective that the accused was sober at the time of the offending conduct.

There are also circumstances in which the complainant’s level of intoxication may render them incapable of consenting to a sexual act, such as if they are incapable of giving free and voluntary agreement or are incapable of understanding the nature of the act intended (s 36AA). These are just two examples of how the law concerning “reasonable belief” has been restricted in favour of the prosecution.

Sexual assault and the court process

Sexual assault is an indictable offence typically dealt with in the County or Supreme Court of Victoria. However, for sexual assault charges (not including rape), a summary jurisdiction application can be made to keep the matter in the Magistrates Court. This may be beneficial to avoid standard sentencing provisions.

See ‘Sex Offence Jury Trial Process‘ for more information about the sexual assault trial process.

Penalties for sexual assault

Sexual assault is an indictable offence with a maximum penalty of 10 years imprisonment (Crimes Act 1958 s 40). Maximum penalties are reserved for the worst cases, such as an aggravated sexual assault that is especially cruel, carefully planned, or motivated by prejudice and hatred (Sentencing Advisory Council).

In the Magistrates’ Court, the most common sentence for a charge of sexual assault was a community correction order (35.5% of charges). In the higher courts (the County Court and the Supreme Court), the most common sentence for a charge of sexual assault was imprisonment (70% of charges). The shortest prison sentence was less than 1 month, and the longest was 8 years (Sentencing Advisory Council, SACStat).

Range of sentences imposed in higher courts

2.5-year community correction order (DPP v Jordan [2015])

During a birthday party hosted by a mutual friend, a 16-year-old victim rejected the advances of the 19-year-old offender. The offender persisted with touching and kissing. On one occasion, he made her masturbate him, telling her she could not leave a room unless she did so. The offender pleaded guilty and was assessed as at low risk of reoffending.

9-month suspended sentence (DPP v Parker [2015])

In the early 1990s, the offender, then aged 51, sexually assaulted his 16-year-old nephew while under his care. He masturbated the victim (9-month sentence) and again sexually assaulted him a few weeks later (20-month sentence). The offender had been sentenced for other sex offences in the 1990s but had not since offended. He pleaded guilty.

4.5-year prison sentence (DPP v Ryan [2018])

A registered sex offender attacked a 22-year-old victim walking to her local gym. The offender covered her mouth and nose, dragged her to the ground and touched her vagina before running when she screamed and bit his hand. The offender had previously been sentenced for assault with intent to rape. He pleaded guilty.