Can Sexual Assault Allegations be Defendend?

Sexual Assault is a crime codified under 40 of the Crimes Act 1958 (Vic).

To prove an allegation of sexual assault, the prosecution must prove beyond reasonable doubt that the accused:

• intentionally touched the complainant;
• that the touching was sexual;
• that the complainant did not consent to the touching;
• and that the accused did not reasonably believe the complainant consented

How does one define ‘Sexual touching’?

Touching is defined very broadly. It can be done with any part of the body, with anything else (so it includes objects), and it can be done through anything, including clothing. The touching is “sexual” if it is sexual because of the area touched or used in the touching, because the person doing the touching seeks or gets sexual arousal or gratification from it, or because of any other aspect of the touching, including the circumstances.

What is meant by Consent?

Consent means free and voluntary agreement. The Crimes Act says that a person does not consent just because they do not resist verbally or physically, or just because they consented to other acts with that person or anyone else at another time.

Can an accused have a reasonable belief of consent?

Yes. An accused can have a reasonable belief of consent even where this challenges the complainants belief. However, whether a belief in consent is reasonable depends on the circumstances, but a belief is generally regarded to be not reasonable if the accused did not try to find out whether the other person consented.

Can sexual assault allegations be successfully defended?

Yes. A defence can succeed where there is a reasonable doubt about consent, about what was said or done to communicate consent, about the accused’s belief, or about identity, opportunity, or the occurrence of sexual touching.

In practice, a successful defence might mean a finding of not guilty at trial, or charges being withdrawn prior to this.

What is the sentence for sexual assault?

In Victoria, the maximum penalty for sexual assault is 10 years imprisonment, but this is an offence which can be heard summarily in the Magistrates’ Court. The Magistrates’ Court only has jurisdiction to sentence a maximum of 2 years, so cases in the Magistrates’ Court can often avoid imprisonment.

Even in the higher courts, sexual assault does not always involve imprisonment. In fact the Sentencing Advisory Council’s higher-court data (County and Supreme Court) for 2017–18 to 2021–22 shows that just under half of offenders sentenced with sexual assault as the principal offence received a principal sentence of imprisonment (47.5%), and about a third received a community correction order (31.3%).

It is important to note that the court will consider a range of factors, including the offender’s culpability, the existence of mitigating factors elicited through personal circumstances, when determining an appropriate sentence.