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Sexual Assault Lawyers Melbourne

In Victoria, section 40 of the Crimes Act 1958 is the offence of Sexual Assault, which is the intentional and unwanted act of touching of a sexual nature.

Do the Police want to speak with you about an allegation of Sexual Assault? You can speak with one of our expert Sexual Assault lawyers in Melbourne to have all your important legal questions answered.

Police interview for Sexual Assault
How are you going to deal with the Police? Do you understand what they are trying to achieve? Do you realise that being formally interviewed for Sexual Assault means that they already have statements from the accuser and possibly other people? Do you understand that the Police may be trying to get you to talk about facts that are unrelated to the actual allegations? They do this to try to trip you up so they can tell the jury you are a liar. You might make admissions because you have poorly worded your response or have not really thought it through properly.

You need to know that the Police interview for Sexual Assault is not an opportunity for you to explain your side of the story. We can do that at another time. The Police are likely to have decided to charge you already. They are hoping that you get confused about surrounding facts because this might be the main evidence that they can use to prove the charge of Sexual Assault. You should set up a conference with us before you attend the Police station to be interviewed.

We also attend police interviews for Sexual Assault to support and help our clients.

Pleading not guilty to Sexual Assault
If the Sexual Assault allegation is made by a work colleague, it is important that you do not discuss the allegations with your employer or fellow employees. This may become evidence against you.
  We have lawyers who are experts in representing people charged with Sexual Assault. We work on getting evidence to show that you are not guilty.

We know what issues to look for with a Police investigation. We will take your matter extremely seriously and work hard in conducting our own investigation. The Police sometimes make mistakes and do not find things which can help your case.

Pleading guilty to Sexual Assault
We will help you get together all the important material that is needed to get a great result. There might be room to change the Police summary. We can advise how to best prepare for your plea hearing. This preparation can change the outcome of your punishment. We have appeared in many Sexual Assault pleas of guilty.
 
  • Contact an expert in charges of Sexual Assault on (03) 9670 5111.
  • We provide a free first phone conference.
  • Download our free booklet to learn more about the Investigation and Court process.
Sexual assault matters will usually be heard in the Magistrates’ Court.
 
Sexual assault: The elements
  1. The accused must have intentionally touched another person;
  2. The touching must be sexual;
  3. The other person must not have consented to the touching; and
  4. The accused must not have 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:

  1. Touching may be done—
    1. with any part of the body; or
    2. with anything else; or
    3. 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:

  1. Touching may be sexual due to—
    1. 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
    2. the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or
    3. any other aspect of the touching, including the circumstances in which it is done.
Element 3: Consent
The prosecution must also prove that 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:

  1. the person submits to the act because of force or the fear of force, whether to that person or someone else;
  2. 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;
  3. the person submits to the act because the person is unlawfully detained;
  4. the person is asleep or unconscious;
  5. the person is so affected by alcohol or another drug as to be incapable of consenting to the act;
  6. 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.
  7. the person is incapable of understanding the sexual nature of the act;
  8. the person is mistaken about the sexual nature of the act;
  9. the person is mistaken about the identity of any other person involved in the act;
  10. the person mistakenly believes that the act is for medical or hygienic purposes;
  11. if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;
  12. the person does not say or do anything to indicate consent to the act;
  13. 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 sexual touching.

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 that 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 touching.

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 that the Prosecution have not proved the fourth element above.

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:

  1. A person (A) commits an offence if—
    1. (A) intentionally touches another person (B); and
    2. the touching is sexual; and
    3. (B) does not consent to the touching; and
    4. (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.
 
A person found guilty of this offence may be sentenced to a maximum of 10 years imprisonment.
 
Sentencing in the higher courts
Sentencing Statistics Pie Chart for Sexual Assault in the Higher Courts
Sentencing in the Magistrates’ Courts
Sentencing Statistics Pie Chart for Sexual Assault in the Magistrates' Courts
The most common penalty to a finding of guilt of Sexual Assault in the County Court of Victoria is a term of imprisonment. The most common penalty handed down in the Magistrate’s Court is a Community Correction Order. Our experienced lawyers have achieved great outcomes for our clients in the past who have pleaded guilty to Indecent Assault by:

  • Organising character references from your family and friends. Character references are important because they give the Sentencing Court an insight into your character from those closest to you. Also, they show the Court that you have taken the matter seriously by discussing it with people close to you. In DPP v Aldrich [2015] VCC 1913 the Sentencing Judge placed weight on character references because they demonstrated that the accused had family support and that he was taking steps to address his wrong-doing.
  • Organise an expert report. Our lawyers are experienced in engaging appropriately qualified experts who write reports.
  • Present your personal circumstances to the sentencing Magistrate or 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.
A sexual assault involving walking up behind a female complainant and touching her sexually can attract punishment. The Victorian Court of Appeal in Rezai v The Queen [2020] VSCA 106 said that while the contact was brief, it was ‘intimate, embarrassing and traumatic’.