Procuring a Sexual Act By Threat

Which court will the case be heard in?

This matter will likely be heard in the Magistrates’ Court.

What is the legal definition of Procuring a Sexual Act by Threat

The legal definition of Procuring a Sexual Act by Threat is when somebody (A):

1. Makes a threat to another person (B) that (A) will harm another person or an animal; and
2. (A) intends that (B) will believe, or believes that (B) will probably believe, that (A) will cause the harm they are threatening; and
3. As a result of (A)’s threat, person (B) takes part in a sexual act with (A); and
4. (A) intends that, as a result of their threat, the sexual act will occur.

The sexual act may occur at the time of the threat or at a later time.

A threat may be made by words or conduct and may be implicit or explicit.

Examples of Procuring a Sexual Act by Threat

• Someone (A) threatens to hurt another person if that person (B) doesn’t have sex with them.
• Someone (A) threatens to kill another person (B)’s dog if the other person does not perform oral sex on (A).

Elements of the offence

The prosecution must prove the following elements of this offence:

1. A person makes a threat of harm to a person, about another person, or an animal.
2. The person making the threat intends that the person will believe or probably believe that the threat will lead to harm.
3. As a result of the threat, a sexual act occurs. This can occur at the time of the threat or at a later time.
4. The person making the threat had intended for a sexual act to occur because of the threat.

Legislation

The section that covers this offence is section 44 of the Crimes Act 1958:

Procuring sexual act by threat

1. A person (A) commits an offence if—
   1. A makes a threat to another person (B) that A will cause harm of any kind to B, another person or an animal; and
   2. A intends that B will believe, or believes that B will probably believe, that A will cause that harm; and
   3. as a result of A’s threat, B or another person takes part (whether at the time the threat is made or at a later time) in a sexual act with A or another person; and
   4. A intends that, as a result of A’s threat, an outcome mentioned in paragraph (c) will occur.
2. A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).
3. For the purposes of subsection (1), a threat may be made by words or conduct and may be explicit or implicit.
4. For the purposes of subsection (1)(c), a person who takes part in a sexual act with A or another person may or may not be the person to whom A has threatened to cause harm.¹

Defences

• There was no threat.
• The person making the threat did not intend, as a result of their threat, that the sexual act would occur.

There are other possible defences depending on the circumstances surrounding the alleged offending. Each matter is unique and requires and individual approach and strategy.

Questions in cases like this

• How can they prove that a threat has been made?
• How can they prove that the threat resulted in a sexual act?

Maximum penalty for section 44 of the Crimes Act 1958

Procuring a Sexual Act by Threat has a maximum penalty of 10 years imprisonment.

Sentencing

If you decide to plead guilty to Procuring Sexual Act by Threat, you may be sentenced to a term of imprisonment. Courts treat this offending seriously because it is generally exploitative, intimidating and creates emotional and psychological issues for complainants (DPP v Li (a pseudonym) [2017] VCC 1699). However, sentencing Judges also have other sentencing alternatives available to them such as a Community Correction Order. The Supreme Court of Victoria stated that a Community Correction Order is an appropriate sentencing tool to achieve punishment and treatment.

You can improve your prospects of receiving a Community Correction Order by showing the Court that you are committed to treatment by undergoing your own treatment prior to the plea hearing.

Another important tool in a plea in mitigation is character evidence from your family, friends and work colleagues. The Courts are assisted when they can read or hear what your social network think if you.


_{[1] Australian legal Information Institute. “Crimes Act 1958 – Section 44: Procuring sexual act by threat.” Austlii.edu.au. http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s44.html (accessed June 22, 2020).}