Sex Offences in Victoria

MCD Lawyers will be your dedicated legal advocate who will fight for you throughout your case.

HISTORICAL SEX OFFENCES

Like other indictable crimes in Victoria, there is no time limit as to when a sex offence can be reported to the Police and prosecuted. This means that a person may be charged for a historical sex offence no matter how long has passed since the alleged incident. The most common historical sex offences that are reported to Police include rape, incest, sexual / indecent assaults.

When prosecuting an accused for historical sex offences, the Prosecution has the burden to prove ‘beyond reasonable doubt’ all the elements of offence alleged to have been committed. However, this can be a difficult hurdle for the Prosecution to overcome when there has been a passage of time between the alleged offence and the report being made. For example, if an alleged incident is said to have occurred 40 years prior to the making of a report of a sexual offence to the Police, there may be little or no physical evidence in existence, or witnesses may no longer be available.

Historical sex offences in Victoria can be quite complex and difficult to defend. MCD Lawyers are highly experienced in defending sexual offences and will assist you in every step of your matter.

Call MCD Lawyers now on 03 7009 4777 to ensure you get expert advice.

RAPE

The offence of rape is the sexual penetration of another person without their consent. Sexual penetration, as defined by the offence of rape, can be through inserting a body part or object into the vagina, anus or mouth of another person without that person’s consent.

Under the Crimes Act 1958 (Vic), it is an offence to rape another person or to be an accomplice in the rape of another person. Rape is a serious offence in Victoria, with its maximum penalty being 25 years’ imprisonment.

Pursuant to section 38 of the Crimes Act 1958 (Vic), the Prosecution must prove the each of the following elements beyond reasonable doubt:

The accused sexually penetrated the victim;
The person being penetrated did not consent; and
The accused did not reasonably believe that the person being penetrated consented to the penetration.

Importantly, the lack of physical resistance does not necessarily mean that the person consented to the sexual penetration. Many complainants in rape trials have given evidence that they ‘froze’ during the alleged non-consensual sexual penetration.

Accordingly, consent is an important element of the offence of rape. Section 36 of the Crimes Act 1958 (Vic) defines ‘consent’ and the circumstances in which consent can be given. It is the responsibility of the person initiating the sexual activity to ensure the other person is consenting.

The law in Victoria states that a person does not give consent if:

They are so affected by alcohol or another drug as to be incapable of consenting to the act;
They are so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;
They are unconscious or asleep;
They are not capable of understanding the sexual nature of the act;
They are not capable of freely and voluntarily agreeing to the sexual activity;
They are threatened, or under duress or coercion;
They are mistaken about the nature or purpose of the sexual activity; or
They are mistaken about the identity of the other person.

Furthermore, in Victoria, a person under the age of 16 years cannot consent to sexual activity. On the other hand, a person cannot consent to sexual activity if they are under the age of 18 years and are under the care, supervision, or authority of the accused (for example, a teacher and their 17-year-old student).

Rape is a very serious offence in Victoria. The trials are usually technical and can be difficult to defend. MCD Lawyers are very experienced in defending rape charges. Do not speak to the Police until you have called MCD Lawyers to obtain expert legal advice. This could positively change the outcome of your case. Being found guilty of rape would have extreme consequences on your life. It is therefore critical that you engage an expert in sex cases to help you defend your rights.

SEXUAL ASSAULT

The offence of sexual assault is found within section 40 of the Crimes Act 1958 (Vic). For an accused to be found guilty of sexual assault, the Prosecution must prove the following elements beyond reasonable doubt:

The accused intentionally touches another person; and
the touching is sexual; and
The person does not consent to the accused touching them; and
The accused does not reasonably believe that the person consents to the touching.

Unlike rape, sexual assault does not include penetration of a person’s vagina, anus or mouth with a body part or object. Accordingly, the following are examples of sexual assault:

Kissing a person without their consent; or
Touching someone’s genitals, breasts or buttocks without their consent; or
Rubbing a hand on someone’s lower back without their consent; or
Forcing someone to do any of the above to another person.

For a touch to be considered as ‘sexual’, it ultimately depends on where a person was touched, what they were touched with and / or if the accused was sexually aroused when touching the other person.

Accordingly, consent is an important element of the offence of sexual assault. Section 36 of the Crimes Act 1958 (Vic) defines ‘consent’ and the circumstances in which consent can be given. It is the responsibility of the person initiating the sexual touch to ensure the other person is consenting. Therefore, a person cannot give consent to a sexual touch if they are unconscious, intoxicated, asleep, or was unable to agree. Importantly, the lack of physical resistance does not necessarily mean that the person consented to the sexual penetration. Many complainants in rape trials have given evidence that they ‘froze’ during the alleged non-consensual sexual penetration.

Consent is an important element of the crime of sexual assault. In order for consent to be valid, it must be freely given, voluntary, and ongoing. A person cannot give consent if they are asleep, unconscious, intoxicated, or otherwise unable to communicate their agreement.

Furthermore, a person under the age of 16 years cannot give consent to any sexual touching by another person.

Sexual assault is a serious crime in Victoria. The maximum penalty for sexual assault is 10 years’ imprisonment.

If you have been charged with sexual assault, it is important that you contact MCD Lawyers immediately to receive proper legal advice and representation.

SEXUAL PENETRATION OF A CHILD UNDER 16

Pursuant to section 49B(1) of the Crimes Act 1958 (Vic), it is an offence to sexually penetrate a child under 16. In Victoria, the charge of Sexual Penetration of a Child is very serious.

A person can only give consent to sexual activity in Victoria from the age of 16. Therefore, anyone under the age of 16 years is incapable of giving consent. It is also important to be aware that a person cannot consent to sexual activity if they are under the age of 18 years and are under someone’s care, supervision, or authority (for example, a teacher and their 17-year-old student).

Sexual penetration can be through inserting a body part or object into the vagina, anus or mouth of another person, and in this case, a child.

The maximum penalty for Sexual Penetration of a child under 16 in Victoria is 15 years’ imprisonment.

In order for a person to be found guilty of Sexual Penetration of a Child, under section 49B(1) of the Crimes Act 1958 (Vic), the Prosecution must prove each of the following elements beyond reasonable doubt:

The accused intentionally—
1. sexually penetrates the child; or
2. causes or allows the child to sexually penetrate the accused; or
3. causes the child—
  1. to sexually penetrate themselves; or
  2. to sexually penetrate another person; or
  3. to be sexually penetrated by another person; and
The child under the age of 16 years.

Defences

Section 49V of the Crimes Act 1958 (Vic) provides defence of ‘similarity in age’ to this charge.
Accordingly, this defence can be relied upon if, at the time of the sexual penetration —

The accused was not more than two years older than the child; and
The child was 12 years of age or more; and
The child consented to the sexual penetration.

Another defence is a ‘reasonable belief’ as to age of the child. This defence falls within section 49W of the Crimes Act 1958 (Vic) and can be relied upon if:

The child was 12 years of age or more; and
The accused reasonably believed that the child was aged 16 years or more.

In order to rely upon this defence, the onus is on the accused to prove on the balance of probabilities that they reasonably believed the child was aged 16 years of more. Importantly, whether or not an accused reasonably believed that the child was aged 16 years or more depends on the circumstances, including what steps they took to find out the child’s age.

Sexual Penetration of a Child under 12

The offence of Sexual of Penetration of a Child under 12 is a more serious offence than Sexual of Penetration of a Child under 16. The charge of Sexual of Penetration of a Child under 12 falls within section 49A(1) of the Crimes Act 1958 (Vic). The maximum penalty for this offence in Victoria is 25 years’ imprisonment.

In order for a person to be found guilty of this charge, the Prosecution must prove each of the following elements beyond reasonable doubt:

The accused intentionally
- sexually penetrated the child; or
- caused or allowed the child to sexually penetrate the accused; or
- caused the child to sexually penetrate themselves, another person or be sexually penetrated by another person; and
The child was under the age of 12.

Cases of Sexual Penetration of a Child can be difficult to defend as they are technical matters. The laws relevant to these charges have been subject of many changes over the years. Because of this, it is important you engage a lawyer who understands the laws from the time the alleged offence is said to have occurred as well as the specific conduct.

Mark Martoccia is highly experienced lawyer when it comes defending charges involving the sexual penetration of a child. If you have been charged with the Sexual Penetration of a Child contact MCD Lawyers now to receive expert advice and legal representation.

CHILD ABUSE MATERIAL (FORMALLY KNOWN AS 'CHILD PORNOGRAPHY')

Child abuse material (formally known as ‘child pornography’) is defined under section 51A of the Crimes Act 1958 (Vic) as material of a person under the age of 18 that:

depicts or describes—
1. a person who is, or who appears or is implied to be, a child—
  1. as a victim of torture, cruelty or physical abuse (whether or not the torture, cruelty or abuse is sexual); or
  2. as a victim of sexual abuse; or
  3. engaged in, or apparently engaging in, a sexual pose or sexual activity (whether or not in the presence of another person); or
  4. in the presence of another person who is engaged in, or apparently engaged in, a sexual pose or sexual activity; or
2. the genital or anal region of a person who is, or who appears or is implied to be, a child; or
3. the breast area of a person who is, or who appears or is implied to be, a female child; and
reasonable persons would regard as being, in the circumstances, offensive;

Child abuse material can therefore include anything described above which is depicted in images, videos, and other forms of media. It can also be in the form of words, illustrations, or cartoons.

It is an offence to possess, distribute, produce, or access child abuse material in the State of Victoria.

A person may also be charged in the State of Victoria if it is alleged they assisted someone to avoid apprehension in relation to offending involving child abuse material. For example, a person may be charged with this offending if they have assisted someone to secretly access child abuse material or provided instructions on how to encrypt files that contain child abuse material.

The maximum penalty for this offending is 10 years’ imprisonment.

Commonwealth

A person can also be charged with offences relating to child abuse material under Commonwealth law. The Criminal Code Act 1995 (Cth) has similar offences to those contained in the Crimes Act 1958 (Vic).

If an accused is charged with producing or transmitting child abuse material under Commonwealth law, they face a maximum penalty of 15 years’ imprisonment.

Defences

It can be difficult to defend charges relating to child abuse material as there are limited defences available. Mark Martoccia has extensive experience in defending people charged with offences related to child abuse material. Call MCD Lawyers immediately to obtain expert legal advice and representation. There may be a defence available to you.

GROOMING

‘Grooming’ is described as a person engaging in conduct with the intention of procuring a child under the age of 16 for sexual activity or exploitation. This is a criminal offence in Victoria and any person alleged to be engaging in ‘grooming’ will be charged with ‘Grooming for Sexual Conduct with a Child under the age of 16’ under section 49M of the Crimes Act 1958 (Vic).

In order to be found guilty of the offence of grooming, the Prosecution must prove each of the following elements beyond reasonable doubt:

The accused person is aged 18 years or more;
The accused communicated by words or conduct (whether or not a response was made to the communication)
- The communication or conduct was with a child under the age of 16; or
- The communication or conduct was with someone with the care, supervision or authority over the child; and
The accused intended the communication to facilitate the child to engage or be involved in the commission of a sexual offence.

Examples of grooming can include developing a relationship with a child by communicating with them online or in-person, giving gifts or other rewards, whilst having the intention of procuring that child for sexual activity or exploitation. ‘Communication’ can be in many forms, including online, over the telephone or in-person.

The maximum penalty for this offence is 10 years’ imprisonment.

Commonwealth

The Criminal Code Act 1995 (Cth) has similar offence to grooming in Victorian law.

The Commonwealth law states that it is a criminal offence to use the internet or other electronic means to groom a child or young person under the age of 16 years for sexual activity or exploitation.

The maximum penalty for this offence is 15 years’ imprisonment under the Criminal Code Act 1995 (Cth).

Grooming is considered a very serious offence in Australia. It is crucial that you receive expert legal advice before being interviewed by the Police in relation to alleged grooming. Call MCD Lawyers immediately on 03 7009 4777 to ensure you receive the best advice and legal representation.

INCEST OFFENCES

Under the Crimes Act 1958 (Vic), an accused can be charged with a criminal offence by engaging in sexual activity (sexual penetration) with the following people:

Sexual penetration of a child or lineal descendant of the accused; or
Sexual penetration of a stepchild (lineal descendant of a spouse or domestic partner); or
Sexual penetration of a parent, lineal ancestor, or stepparent of the accused; or
Sexual penetration of a sibling or half sibling of the accused.

A lineal descendant can be a parent, grandparent or grandchild. Furthermore, adopted children are considered lineal descendants to both their biological and adoptive parents.

In order to be found guilty of charges of incest, the Prosecution must prove beyond reasonable doubt each of the following elements:

The accused intended to sexual penetration the person;
The accused and the person who he or she sexually penetrated are in one of the abovementioned relationships; and
The accused knew that the person is their child or lineal descendant.

However, in relation to an alleged incest against a stepchild, the accused has not committed an offence if the stepchild was aged 18 years or more at the time they engaged in a sexual activity.

There are many exceptions that apply to the law surrounding incest. It is therefore a difficult and technical area of the law. Mark Martoccia has extensive experience in defending people charged with offences relating to incest. Call MCD Lawyers immediately to obtain expert legal advice and representation.

DISTRIBUTING AN INTIMATE IMAGE

In 2023, the State of Victoria legislated the distribution of an intimate image without a person’s consent, commonly known as ‘revenge porn’, as a criminal offence.

It is also illegal to produce or threaten to distribute an intimate image without the person’s consent.

Distributing an Intimate Image

Under section 53C of the Crimes Act 1958 (Vic), it is a criminal offence if:

A person intentionally distributes an image depicting another person; and

The image is an intimate image; and

The person distributing the image knows the image is, or probably is, an intimate image; and

The distribution of the intimate image is contrary to community standards of acceptable conduct.

It would therefore not be an offence if, at time of the distribution of the image, the person depicted in the image consented to the person distributing the intimate image and how the intimate image was distributed.

With today’s technology (smart phones etc.), many people share intimate images with their respective partners. If there is then an acrimonious breakdown in their relationship, sometimes the other partner may distribute the intimate image of their former partner with others to humiliate or cause them harm.

Another example of this offending is if a person is sharing an intimate image with a prospective partner that they are speaking to on a dating application such as Tinder, Grindr or Hinge, and the prospective partner then screenshots and forwards the image to a friend, or uploads it to a pornographic website, without the person’s consent.

Importantly, if the person depicted in the image is under the age of 18, an accused can be charged with distributing child abuse material.

The offence of Distribute an Intimate Image has recently become more prevalent in the State of Victoria, with the courts taking a serious view towards the offending. The maximum penalty for this offence is 3 years’ imprisonment.

Mark Martoccia is highly experienced lawyer when it comes defending the chare of Distributing an Intimate Image. If you have been charged with Distribute an Intimate Image contact MCD Lawyers now on 03 7009 4777 to receive expert advice and legal representation.

PERSISTENT SEXUAL ABUSE OF A CHILD UNDER 16

Persistent Sexual Abuse of a Child, formally called ‘Maintaining a Sexual Relationship with a Child under 16’, is found within Section 49J of the Crimes Act 1958 (Vic). The offence involves the sexual abuse of a child on at least three occasions.

This is a very serious offence in the State of Victoria, with the maximum penalty being 25 years’ imprisonment.

There are two elements for this offence that the Prosecution must prove beyond reasonable doubt for an accused to be found guilty:

The accused sexually abused the child on at least three occasions during a particular period; and
The child was under the age of 16 years during that particular period of the sexual abuse.

Some examples of ‘sexual abuse’ are:

Sexual penetration of a child;
Sexual activity in the presence of a child under the age of 16;
Sexual assault of a child; and
Incest.

It only needs to be alleged that an accused committed a minimum three separate acts of sexual abuse over a particular period. For the three separate acts, the offence does not have to be of the same type. For example, on one occasion the accused may be alleged to have committed sexual activity in the presence of the child, on another occasion the accused may be alleged to have committed sexual assault of the child, and on another occasion the accused may be alleged to have committed sexual penetration of the child.

It is not necessary for the Prosecution to prove these acts ‘with the same degree of specificity as to date, time, place, circumstances or occasion’ as would be required if the accused were charged with a single act, such as a single charge of sexual penetration of a child or sexual assault of a child.

If you are being investigated for, or have been charged with, Persistent Sexual Abuse of a Child under 16 years, you must ensure you receive expert legal advice from a criminal lawyer who regularly practices in this area of the criminal law. The penalties are significant for this offending. Call MCD Lawyers now on 03 7009 4777 immediately to receive expert advice and to protect your rights.

PROCURING A SEXUAL ACT BY FRAUD

Under section 45 of the Crimes Act 1958 (Vic), it is a criminal offence to procure a sexual act by fraud.

The maximum penalty for this offending is 5 years’ imprisonment.

The Prosecution must prove the following elements beyond reasonable doubt to find the accused guilty of procuring a sexual act by fraud:

The accused makes a false or misleading representation; and
The accused knows that their representation is false or misleading or is probably false or misleading; and
As a result of the accused’s representation, a person then takes part in (whether at the time the representation is made or at a later time) a sexual act with the accused or another person; and
The accused intends that, as a result of his / her representation, the person will take part in a sexual act with the accused or another person.

A false or misleading representation may be made by words or conduct (including by omission) and may be explicit or implicit.

Examples of Procuring a Sexual Act by Fraud:

A person making a false representation to a sex worker that they will pay for their sexual services, however the person does not pay.
A person making a false representation that they will provide lavish gifts and / or money to someone for sexual favours. The person then provides sexual favours to the person who made the representation, however, then does not receive the said gifts and / or money.

If you have been charged with the Procuring a Sexual Act by Fraud, contact MCD Lawyers now on 03 7009 4777 to receive expert advice and legal representation.

RAPE BY COMPELLING SEXUAL PENETRATION

In Victoria, it is a criminal offence to force another person to perform a sexual act by using threats. This offence, called Rape by Compelling Sexual Penetration, falls under section 39 of the Crimes Act 1958 (Vic). It is a serious charge that carries the maximum penalty of 25 years’ imprisonment.

To be found guilty of the charge of Rape by Compelling Sexual Penetration, the Prosecution must prove beyond reasonable doubt that:

The accused intentionally caused:
1. a person to sexually penetrate them; or
2. a person to sexually penetrate themselves; or
3. a person to sexually penetrate another person or an animal; or
4. another to be sexually penetrated by another person or by an animal; or
5. a person to be sexually penetrated by another person or by an animal; and
The person did not consent to the sexual penetration; and
The accused did not reasonably believe that the person consented to the sexual penetration.

Section 35A of the Crimes Act 1958 (Vic) defines sexual penetration as inserting a body part or object into the vagina, anus or mouth of another person or animal.

An example of this offending can include someone threatening a person with a weapon to perform oral sex.

The offence of Rape by Compelling Sexual Penetration is a very serious offence because it includes threats, and sometimes violence, in addition to the act of sexual penetration.

Given the seriousness of this offence, an accused found guilty of the charge of Rape by Compelling Sexual Penetration will be sentenced to a lengthy term of imprisonment. It is therefore critical that you engage an expert in sex cases to help you defend your rights. Call MCD Lawyers immediately on 03 7009 4777 for expert legal advice.

SEXUAL ACTIVITY OF A CHILD UNDER CARE, SUPERVISION OR AUTHORITY

In the State of Victoria, it is a serious offence to engage in sexual activity with a child aged 16 or 17 under a person’s care, supervision or authority. Two common offences relating to sexual activity under care, supervision or authority can be found in the Crimes Act 1958 (Vic), namely:

Sexual penetration of a child aged 16 or 17 under care, supervision or authority pursuant to section 49C of the Crimes Act 1958 (Vic); and
Sexual assault of a child agreed 16 or 17 under care, supervision or authority pursuant to section 49E of the Crimes Act 1958 (Vic).

The courts consider this offending very serious because there is a breach of trust by an accused who is using their position and power over a child. Although this is not an exhaustive list, the following are some circumstances where an accused has a child under their care, supervision or authority:

the child’s teacher;

the child’s employer;

the child’s youth worker;

the child’s sports coach;

the child’s counsellor;

the child’s health professional;

a person with parental responsibility within the meaning of the Children, Youth and Families Act 2005 (Vic) for the child;

a religious or spiritual guide, or a leader or official (including a lay member) of a church or religious body, however any such guide, leader, official, church or body is described, who provides care, advice or instruction to the child or has authority over the child;

a police officer acting in the course of his or her duty in respect of the child; or

a person employed in, or providing services in, a remand centre, youth residential centre, youth training centre or prison and acting in the course of his or her duty in respect of the child.

Sexual Penetration of a Child aged 16 or 17 under Care, Supervision or Authority To be found guilty of Sexual Penetration of a Child aged 16 or 17 under Care, Supervision or Authority, the Prosecution must prove the following elements beyond reasonable doubt:

the accused intentionally sexually penetrated the child; or

the accused intentionally caused or allowed the child to sexually penetrate the accused; or

the accused caused the child to sexually penetrate themselves, another person or be sexually penetrated by another person; and

the child is aged 16 or 17 years; and

the child is under the accused’s care, supervision, or authority.

Sexual penetration means that accused sexually penetrated the victim’s vagina, anus, or mouth with their penis or another object. Pursuant to section 49C of the Crimes Act 1958 (Vic), the maximum penalty for this offence is 10 years’ imprisonment. Sexual Assault of a Child aged 16 or 17 under Care, Supervision or Authority To be found guilty of Sexual Assault of a Child aged 16 or 17 under Care, Supervision or Authority, the Prosecution must prove the following elements beyond reasonable doubt:

the accused intentionally sexually touches the child; or

the accused intentionally caused or allowed the child to sexually touch the accused; or

the accused caused the child to sexually touch themselves, another person or be sexually touched by another person; and

the child is aged 16 or 17 years; and

the child is under the accused’s care, supervision, or authority; and

the touching is sexual and contrary to community standards.

Pursuant to section 49E of the Crimes Act 1958 (Vic), the maximum penalty for this offence is 5 years’ imprisonment. For charges relating to Sexual Activity of a Child aged 16 or 17 under Care, Supervision or Authority, one particular defence that can be relied upon is that at the time of the conduct, the accused reasonably believed that the child was aged 18 years or more. Mark Martoccia is highly experienced lawyer when it comes defending charges involving Sexual Activity of a Child under Care, Supervision or Authority. If you have been charged with this offence, contact MCD Lawyers immediately to receive expert advice and legal representation.

SEXUAL EXPOSURE

Sexual Exposure, formally known as ‘Indecent Exposure’ and ‘Obscene Exposure’, is a criminal offence in Victoria which falls within section 19 of the Summary Offences Act 1966 (Vic).

The maximum penalty for this offence is 2 years’ imprisonment. The charge of Sexual Exposure is a summary offence that will be heard and determined in the Magistrates’ Court of Victoria.

To be found guilty of this offence, the Prosecution must prove beyond reasonable doubt that the accused intentionally exposed their genitals (penis or vagina) in a sexual way in, or within the view, of a public place. Breasts are not included within the definition.

For example, a person can be charged with this offending if they are alleged to be intentionally exposing their genitals and masturbating in their car in a public place. A person can also be charged if they are exposing themselves on public transport to gain sexual arousal or gratification.

Importantly, a person can still be charged with this offence if they are sexually aroused and intentionally expose only part of their genitals in public.

Elements of Sexual Exposure

The exposure of genitals must be deliberate or intentional.

A person bending over in gym shorts or a skirt and accidentally exposing their genitals would not be considered intentional. As mentioned above, genitals are defined as a penis or vagina and not breasts.

The exposure must be sexual.

For the act to be considered ‘sexual’, something more is required than just a person’s genitals being exposed. Therefore, exposure of the genitals at a nudist beach alone would not be considered ‘sexual’. However, the element of ‘sexual’ may be satisfied if someone is obviously aroused or displaying sexual gratification from the exposure.

The exposure occurred in a public place.

This element can be satisfied if the accused was in, or within the view, of a public place. However, if the accused was unaware that he or she were view of public, this element cannot be satisfied.

A person can still be charged with Sexual Exposure within their own home. For example, if an accused is sexually aroused and intentionally or deliberately exposing their genitals from the window of their home to people on the street, they then can be charged by the Police for Sexual Exposure.

It is important that the alleged sexual exposure be put into context, and it must be contrary to the community standards of acceptable conduct.

Mark Martoccia is highly experienced lawyer when it comes defending charges involving the Sexual Exposure. If you have been charged with the Sexual Exposure contact MCD Lawyers now on 03 7009 4777 to receive expert advice and legal representation.

Do you need criminal law advice?

Contact MCD Lawyers immediately on 03 7009 4777.