– Section 40 of the Crimes Act 1958
Sexual assault is where a person sexually touches another person without that person’s consent.
Sexual assault: The legislation
The offence of sexual assault is governed by section 40 of the Crimes Act 1958 (“the Act”) which reads as follows:
- A person (A) commits an offence if—
- (A) intentionally touches another person (B); and
- the touching is sexual; and
- (B) does not consent to the touching; and
- (A) does not reasonably believe that (B) consents to the touching.
Under sexual assault law, the maximum penalty that may be imposed under section 40 is 10 years imprisonment.
Maximum penalty and court that deals with this charge
A person found guilty of this offence may be sentenced to a maximum of 10 years imprisonment. Sexual assault matters will usually be heard in the Magistrates’ Court.
Sexual assault: The elements
- The accused must have intentionally touched another person;
- The touching must be sexual;
- The other person must not have consented to the touching; and
- The accused must have not reasonably believed that the other person consented to the touching.
The prosecution must prove all of these elements for someone to be found guilty of sexual assault.
Element 1: The accused must have intentionally touched another person
The accused must intentionally touch another person for the first element of sexual assault to be made out. Touching is defined in section 35B(1) of the Act as follows:
- Touching may be done—
- with any part of the body; or
- with anything else; or
- through anything, including anything worn by the person doing the touching or by the person touched.
The touching must be intentional. Accidental or inadvertent touching is insufficient to satisfy the first element of sexual assault.
Element 2: The touching must be sexual
The accused must also touch another person in a sexual way. Section 35B(2) of the Act defines sexual touching as follows:
- Touching may be sexual due to—
- the area of the body that is touched or used in the touching, 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
- the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or
- any other aspect of the touching, including the circumstances in which it is done.
Element 3: Consent
The prosecution must also prove other person did not consent to being touched in a sexual way.
Under the Act, consent means free agreement. The Act provides a non-exhaustive list of circumstances in which a person is not consenting:
- the person submits to the act because of force or the fear of force, whether to that person or someone else;
- the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;
- the person submits to the act because the person is unlawfully detained;
- the person is asleep or unconscious;
- the person is so affected by alcohol or another drug as to be incapable of consenting to the act;
- the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;
Note – This circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting.
- the person is incapable of understanding the sexual nature of the act;
- the person is mistaken about the sexual nature of the act;
- the person is mistaken about the identity of any other person involved in the act;
- the person mistakenly believes that the act is for medical or hygienic purposes;
- if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;
- the person does not say or do anything to indicate consent to the act;
- having given consent to the act, the person later withdraws consent to the act taking place or continuing.
Element 4: Accused’s reasonable belief in consent
This element relates to the accused’s state of mind about the complainant’s consent. The prosecution must prove that the accused did not reasonably believe that the complainant consented to the penetration.
The Act is relatively vague and only says that whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances, including any steps that the accused took to find out whether the complainant consented. Whether the accused reasonably believed the complainant was consenting will depend on circumstances such as the past relationship between the accused and the complainant (if there was one) and the complainant’s behaviour prior to the sexual penetration.
Effect of intoxication on reasonable belief
In determining whether or not an accused who was intoxicated had a reasonable belief in consent, if the intoxication was self-induced (they drank or consumed drugs voluntarily and not because they had their drink spiked or similar), the accused is not held to a lower standard and the jury must have regard to a reasonable person who is not intoxicated but who was in the same circumstances as the accused.
If an accused’s intoxication is not self-induced, for example if their drink was spiked, the accused is held to a lower standard and the jury must have regard to a reasonable person who is intoxicated and was in the same circumstances as the accused.
The accused reasonably believed there was consent
A person who reasonably believed there was consent is not guilty of sexual assault. This is because such a belief means the Prosecution have not proved the fourth element above.
Sentencing in the Magistrates’ Courts
From 1 July 2013 to 30 June 2016, there were 46 cases of Sexual Assault – section 10(1) that were heard in the Magistrates’ Courts of Victoria. These cases mostly resulted in a Community Correction Order (32.6%) and imprisonment (30.4%). But other penalties were also imposed such as adjourned undertaking/discharge/dismissal (19.6%) and fine (17.4%).
Of the cases that led to a prison term, majority were sentenced to a period that was less than 4 months (42.9%). The highest term imposed was between 24 and 36 months but this category was applied in only 14.3% of the cases that led to imprisonment.
For the financial penalties, all charges that led to aggregate fines fell under the “$3,000 < $4,000" category (12.5%). The highest non-aggregate fine imposed also fell under this same category (25.0%) and it was as frequently imposed as the categories "$500 < $1,000" (25.0%) and "$2,000 < $3,000" (25.0%).1
Case example from our firm:
- Downgrading a Charge of Sexual Assault Against a Child Under 16
- Community Corrections Order for Sexual Assault
- Allegations of Sexual Assault By a Teacher – No Charges Made
- Sexual Assault By a Doctor – Charges Withdrawn
- Sexual Assault By a Child
 Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 40(1) – sexual assault.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_40_1.html (accessed February 4, 2019).