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Sexual Activity Directed at Another Person

In Victoria, section 48 of the Crimes Act 1958 is the offence of Sexual Activity Directed at Another Person, which is the act of forcing a person to sexually touch a third person without their consent.

Is someone saying that you engaged in Sexual Activity Directed at Another Person? Call our office and make an appointment to speak with one of our experienced lawyers. We can advise you on how to proceed from here.

Being interviewed by the Police
You should not attend the Police station to speak with the Police without knowing your rights. It is also important to discuss the charges with a lawyer before going to the station. We might prepare for a bail application in case the Police apply to remand you.

Man Intending to Perform Sexual Activity Directed at Another Person
Do not wait till after the interview to call us.

Waiting until after the Police to speak with us can alter the course of your case.

We can go to the interview with you. You may feel more comfortable having someone there with you to support you.

We can tell you everything that you need to know so that you are not caught by surprise. So, call us today to discuss your case with one of our lawyers.

Pleading not guilty
We have run hundreds of jury trials and know what needs to be done.

Our lawyers are expert in helping you with allegations of Sexual Activity Directed at Another Person. Our lawyers know how to prepare defence strategies. Our lawyers also know how to challenge the Police evidence. We have run and won many trials.

Pleading guilty
If you decide to plead guilty, you want a lawyer who is going to make sure that you plead to any number of charges no more than you have to. Just because the Police say something happened does not make it so. We can also help you with the steps that you should do before your plea hearing to get the best possible outcome. We will arrange expert reports and all the other documents that the Court will want to see.

  • Contact an expert in charges of Sexual Activity Directed at Another Person on (03) 9670 5111.
  • We provide a free first phone conference.
  • Download our free booklet to learn more about the Investigation and Court process.
This charge is ordinarily heard in the Magistrates’ Court.
 
What is the legal definition of Sexual Activity Directed at Another Person
The legal definition of Sexual Activity Directed at Another Person is when somebody (A):

  1. Engages in an activity; and
  2. The activity is sexual; and
  3. Another person (B) sees the activity or part of the activity; and
  4. (A) knows that (B) will see, or will probably see, the activity or part of the activity; and
  5. (A) –
    1. Intends that B will experience fear or distress from seeing the activity or a part of the activity; or
    2. Knows that B will experience, or will probably experience, fear or distress from seeing the activity or a part of the activity.
Examples of Sexual Activity Directed at Another Person
Someone (A) masturbates in front of another person (B) whom they do not know, and (A) is aware that (B) can see them masturbating and looks horrified.

Legislation
The section that covers this offence is section 48 of the Crimes Act 1958:

Sexual activity directed at another person
  • A person (A) commits an offence if—
    1. A engages in an activity; and
    2. the activity is sexual; and
    3. another person (B) sees the activity or a part of the activity; and
    4. A knows that B will see, or will probably see, the activity or a part of the activity; and
    5. A—
      1. intends that B will experience fear or distress from seeing the activity or a part of the activity; or
      2. knows that B will experience, or will probably experience, fear or distress from seeing the activity or a part of the activity.
  • A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).1
Elements of the offence
For a person to be found guilty of this offence, the prosecution must prove the following elements beyond reasonable doubt:

  1. A person (A) engages in sexual activity; and
  2. Another person (B) sees the activity or a part of the activity; and
  3. A knows that B will see, or will probably see, the sexual activity or a part of the activity; and
  4. A:
    1. Intends that B will experience fear or distress from seeing the sexual activity or a part of the activity; or
    2. Knows that B will experience, or will probably experience, fear or distress from seeing the sexual activity or a part of the activity.
Element 1: A person (A) engages in sexual activity
According to s 35D of the Crimes Act 1958 (Vic), an activity may be sexual due to:

  1. The area of the body that is involved in the activity, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or
  2. the fact that the person engaging in the activity seeks or gets sexual arousal or sexual gratification from the activity; or
  3. any other aspect of the activity, including the circumstances in which it is engaged in.
An example of sexual activity would be person A watching pornography in the presence of person A’s daughter (person B) and her friend (person C).

The defence of honest and reasonable belief that the activity was not sexual is not available for this defence.

Element 2: Another person (B) sees the activity or a part of the activity
Another person (B) must witness A’s sexual activity to satisfy the second element of the offence.

Element 3: A knows that B will see, or will probably see, the activity or a part of the activity; and (i) intends that B will experience fear or distress from seeing the activity or a part of the activity; or (ii) knows that B will experience, or will probably experience, fear or distress from seeing the activity or a part of the activity
Element 3 requires A to be aware that B will see all or part of the sexual activity or probably see the sexual activity.

In addition, A must either intend that B will experience fear or distress from seeing the sexual activity or part thereof; or know that B will or will probably experience fear or distress from seeing the sexual activity or part thereof.


[1] Australian legal Information Institute. “Crimes Act 1958 – Section 48: Sexual activity directed at another person.” Austlii.edu.au. http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s48.html (accessed June 22, 2020).
 
  • There was no sexual activity.
  • The person was not engaging in sexual activity, they were merely scratching themselves.
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
  • Was the activity sexual?
  • How can they prove that the complainant actually saw the sexual activity?
 
Sexual Activity Directed at Another Person has a maximum penalty of 5 years imprisonment.
 
Before you decide to plead guilty to Sexual Activity Directed at Another Person, you must know that you may be sentenced to a term of imprisonment. However, there is a strong argument that a Community Correction Order is also appropriate I the circumstances. You should speak with one of experienced lawyers to get some strategic advice on how you can prepare for your plea. Gathering the following material can assist your plea in mitigation:

  • Gathering character references from your family and friends. Character references provide the Sentencing Court with evidence of your good character and that you have adequate social supports. In DPP v Aldrich [2015] VCC 1913 the Sentencing Judge placed weight on character references because they demonstrated that the accused was taking steps to address his wrong-doing.
  • Organise an expert report. Our lawyers are experienced in engaging appropriately qualified experts who write reports for Court. We have a network of respected and reputable experts we have used in past matters which we can refer you to. Your offending might be able to be explained because you suffer from an undiagnosed mental health issue.
  • Present your personal circumstances to the sentencing Judge. We take the time in getting full personal instructions from our clients so that we can properly present our client’s personal circumstances to the Court.
  • Undergoing treatment before your plea hearing. The Court wants to see that you are taking steps to address your wrong-doing to reduce the likelihood of it happening again.