Compelling Sexual Penetration
– section 39 of the Crimes Act 1958
Compelling Sexual Penetration is charged where the police think someone has forced another person to have sex, usually through the threat of physical violence.
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 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?
Maximum penalty and Court that deals with this charge
Compelling sexual penetration has a maximum sentence of 25 years imprisonment.
It 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.
“What actually happened?”
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.
The section that covers this offence is 39 of the Crimes Act 1958.1
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 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
What can you be sentenced to for this charge?
As you would expect with this offence it normally has a prison term attached to it if you are found guilty.
 Crimes Act 1958 – Section 39
(a) A intentionally causes another person (B) to sexually penetrate—
(i) A; or
(ii) themselves; or
(iii) a third person; or
(iv) an animal; and
(b) B does not consent to doing the act of sexual penetration; and
(c) A does not reasonably believe that B consents to doing that act.
(2) A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).
Note to s. 39(2) inserted by No. 65/2016 s. 20(13).
An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991 . See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.
(3) A does not commit an offence against subsection (1) if—
(a) the sexual penetration is of a person and is caused to be done by A in the course of a procedure being carried out by A in good faith for medical or hygienic purposes; or
(b) the sexual penetration is of an animal and is caused to be done by A in the course of a procedure being carried out by A in good faith for veterinary, agricultural or scientific research purposes.