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Compelling Sexual Penetration

In Victoria, section 39 of the Crimes Act 1958 is the offence of Compelling Sexual Penetration which is forcing another to perform a sexual act by using threats.

Have you been accused of Compelling Sexual Penetration? Do you need to ask a criminal lawyer some questions? We will help you by answering your important legal questions in confidence.

Compelling Sexual Penetration
Ask us your questions as we specialise in dealing with allegations of a sexual nature such as Compelling Sexual Penetration.

Police interview
We will advise you what your rights are when dealing with the Police in relation to a charge of Compelling Sexual Penetration. This advice will include how to conduct a Police interview. You may want to know – should I make a statement to the Police? Should I attend a Police interview? Do I need to give my DNA? Will the Police leave me alone if I explain my side of the story? Do I need to hand over my mobile phone? Will I be remanded?

If the Police want to speak with you about an allegation of Compelling Sexual Penetration, you call us straight away.

Our lawyers can also attend the Police station with you. We can support you in a Police interview to make sure you do not say or do anything that may harm your defence.

Pleading not guilty
We know how to run successful defences to charges of Compelling Sexual Penetration and can prepare the best defence strategy for you.

We have successfully stopped the Police from charging people with sex matters by strategic pre-charge work.

Being accused of Compelling Sexual Penetration is serious because it involves threats. An allegation of Compelling Sexual Penetration can negatively impact your reputation, your employment, your ability to parent your children and ability to travel.

In a case like this, you want a lawyer who is going to stand up for your rights with the Police – what are the threats? What evidence is there of threats? Are there people who the Police have not spoken to who can shed some light on this case? Is there exonerating evidence which needs to be preserved? Was there actually consent?

The answer to these questions can often lead to a charge of Compelling Sexual Penetration being withdrawn before a trial or your case winning at trial.

Pleading guilty
If you are pleading guilty to Compelling Sexual Penetration, we can prepare your plea to get you the possible outcome. We will organise reports from experts to explain how you came to offend in this way. This preparation can change the outcome for you.

  • Contact an expert in charges of Compelling Sexual Penetration on (03) 9670 5111.
  • We provide a free first phone conference.
  • Download our free booklet to learn more about the Investigation and Court process.

Compelling Sexual Penetration is a strictly indictable charge which means it must be heard in the County Court. If you are defending the charges, they will be heard in front of jury.

Examples of Compelling Sexual Penetration
  • Someone forces another person to sexually penetrate themselves with an object by threatening the other person with violence.
  • Someone forces another to give them oral sex by threatening violence.
What is the legal definition of Compelling Sexual Penetration?
The legal definition of Compelling Sexual Penetration is when somebody forces another person to have sex with themselves, a person, or an animal.

Legislation
The section that covers this offence is 39 of the Crimes Act 1958.

Rape By Compelling Sexual Penetration
  1. A person (A) commits an offence if—
    1. A intentionally causes another person (B)—
      1. to sexually penetrate A; or
      2. to sexually penetrate themselves; or
      3. to sexually penetrate another person (C) or an animal; or
      4. to be sexually penetrated by C or by an animal; and
    2. B does not consent to the sexual penetration; and
    3. A does not reasonably believe that B consents to the sexual penetration.
  2. A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).1
Elements of the offence
Below are the elements of the offence of Compelling Sexual Penetration:

  • The accused (A) intentionally caused a person (V) to sexually penetrate A; or
  • The accused (A) intentionally caused a person (V) to sexually penetrate themselves; or
  • The accused (A) intentionally caused a person (V) to sexually penetrate another person (P) or an animal; or
  • The accused (A) intentionally caused a person (V) to be sexually penetrated by another person (P) or by an animal; and
  • The person (V) did not consent to the sexual penetration; and
  • The accused did not reasonably believe that the person (V) consented to the sexual penetration.

[1] Australian legal Information Institute. “Crimes Act 1958 – Section 39: Rape By Compelling Sexual Penetration.” Austlii.edu.au. http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s39.html (accessed June 17, 2020).
 
What are some of the possible defences to a Compelling Sexual Penetration charge?
  • The other person consented.
  • There was no sexual penetration.
There are other possible defences depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.

Questions in cases like this
  • How can they prove that the sex was forced?
  • Can they prove there was sexual penetration?
“What actually happened?”

Compelling Sexual Penetration has a maximum sentence of 25 years imprisonment.

Pleading guilty to Compelling Sexual Penetration will result in a term of imprisonment as this is a class 1 offence. Courts sentence these types of cases sternly because it is normally committed with the use of violence or threatened violence (DPP v Meharry [2017] VCC 299). This means that the Court has no discretion and must impose a prison sentence.

The length of the sentence can be reduced if you suffer from a mental impairment of if there are ‘substantial and compelling circumstances that are rare and exceptional and that justify doing so’. It is, therefore, important to get proper and full instructions from you early to explore whether or not you suffer a mental impairment and organise for a comprehensive expert report.

The Supreme Court of Victoria said in the case of R v Verdins (2007) 16 VR 269 that people who suffer from a mental impairment are not as morally culpable as someone who is of sound mind at the time of the wrong-doing.