Sexual Activity Directed at Another Person

– Section 48 of the Crimes Act 1958


Sexual activity directed at another person is charged where the police think someone (A) has engaged in sexual activity and (A) knows that another person (B) will see or will probably see the sexual activity and will feel or will probably feel fear and distress.

Examples of Sexual Activity Directed at Another Person

Someone (A) masturbates in in front of another person (B) they do not know and is aware that (B) can see them masturbating and looks horrified.

What are some of the possible defences to Sexual Activity Directed at Another Person
  • 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?
Maximum penalty and the court that deals with this charge

Prison 
Sexual Activity Directed at Another Person has a maximum penalty of 5 years imprisonment. 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.
Legislation

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

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
    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.

Call Doogue + George
 
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:
a. 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

b. the fact that the person engaging in the activity seeks or gets sexual arousal or sexual gratification from the activity; or

c. 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.