Crimes Act Victoria: Procuring Sexual Acts

Content warning: This article on “procuring sexual acts, Crimes Act Victoria” contains topics that may be sensitive or triggering for some readers. We advise reader discretion.

Procuring sexual acts refers to the facilitation or provision of a sexual act by coercion, fraud, or other means. This can include actions such as trafficking individuals for the purpose of:

• sexual exploitation, 
• operating a business where prostitution occurs, or 
• inducing a person to perform a sexual act through false representations. 

In legal terms, procuring sexual acts involves causing or inducing another person to engage in a sexual act. To know more about Victoria’s criminal implications in committing the crime of procuring sexual acts, this article will discuss Sections 44 to 48B of the Crimes Act Victoria. 

This Act punishes the following crimes:

1. Procuring sexual acts by threat (s44)
2. Procuring sexual acts by fraud (s45)
3. Administration of an intoxicating substance for a sexual purpose (s46)
4. Abduction or detention for a sexual purpose (s47)
5. Sexual activity directed at another person (s48)

Procuring Sexual Acts: By Threat

Section 44 of the Act punishes an offender with a level 5 imprisonment (10 years maximum) who makes a threat to another person. Such threat involves causing harm of any kind to the victim, another person, or an animal.

Here, the offender intends that the victim will believe, or believes that the victim will probably believe, that the offender will cause that harm. Thus, as a result of the offender’s threat, the victim or another person takes part in a sexual act with the offender or another person. 

Take note that the participation of the victim under threat can be made at the time the threat is made or at a later time. Additionally, the threat may be made by words or conduct and may be explicit or implicit.

Procuring Sexual Acts: By Fraud

The Courts may impose an imprisonment of  5 years maximum under section 45 if an offender who makes a false or misleading representation, knows that:

1. the representation is false or misleading; or
2. the representation is probably false or misleading; and

Consequently, as a result of such representation, another person takes part (whether at the time the representation is made or at a later time) in a sexual act with the offender or another person. Here, the offender intends that, as a result of his or her representation, the victim will participate in the sexual act anticipated by him.

Here, the offender may also make false or misleading representation by words or conduct (including by omission) and may be explicit or implicit.

Procuring Sexual Acts: Administration of an Intoxicating Substance

An offender commits the crime of administration of an intoxicating substance for sexual purpose under section 46 if he or she:

1. administers an intoxicating substance to another person; or
2. causes the victim to take an intoxicating substance; or
3. causes another person to administer an intoxicating substance to the other victim.

Here, the offender intends that the intoxicating substance will produce the following effects:

1. impair the victim’s capacity to give, withhold or withdraw consent to taking part in a sexual act; and
2. facilitate the victim in taking part in a sexual act with the offender or another person.

If the Court convicts the accused based on the evidence and the availing circumstances, the penalty will be imprisonment for 10 years maximum.

Note that, under this section, “intoxicating substance” includes any substance that affects a person’s senses or understanding.

Abduction or Detention for a Sexual Purpose

An offender commits the crime of abduction or detention for a sexual purpose if he or she:

1. takes away or detains another person; or
2. causes the victim to be taken away or detained by another person; and
3. The victim does not consent to being taken away or detained.

The offender knows that the victim does not consent or probably does not consent to being taken away or detained. Moreover, he or she intends that:

1. The victim will take part in a sexual act with the offender or another person or both; or
2. The offender or the other victim will marry the first victim (whether or not the first victim consents to being married).

If the court convicts the accused, he or she will be liable to imprisonment for 10 years maximum. Moreover, tt is immaterial that the law prohibits or would not recognise (for whatever reason) a marriage between the offender or the victim or between the two victims.

Sexual Activity Directed at Another Person

The following are the elements of the crime of sexual activity directed at another person under section 48:  

1. The offender engages in an activity; and
2. The activity is sexual; and
3. Another person sees the activity or a part of the activity; and
4. The offender knows that the other perosn will see, or will probably see, the activity or a part of the activity; and
5. The offender:
   • intends that the other person will experience fear or distress from seeing the activity or a part of the activity; or
   • knows that the other person will experience, or will probably experience, fear or distress from seeing the activity or a part of the activity.

The penalty for this crime is imprisonment for 5 years maximum.     

Exceptions—Medical, Hygienic, Veterinary, Agricultural or Scientific Purposes

The criminal acts mentioned in the previous sections may not be considered as criminal under the law (s48A) if:

1. Rape or Sexual Assault [s38(1) or 40(1)]: if the sexual penetration or touching (as the case requires) is of a person and is done in the course of a procedure carried out in good faith for medical or hygienic purposes; or
2. Rape by compelling sexual penetration or Sexual assault by compelling sexual touching  [s39(1) or 41(1)]: if the sexual penetration or touching (as the case requires) is of a person and is caused by the offender to be done in the course of a procedure carried out in good faith for medical or hygienic purposes.

No Defence of Mistaken but Honest and Reasonable Belief That Touching or Activity Was Not Sexual

Section 48B states that it is not a defence to a charge that, at the time of the conduct constituting the offence, the offender was under a mistaken but honest and reasonable belief that:

1. for an offence against section 40(1) or  41(1)—the touching was not sexual; or
2. for an offence against section 48(1)—the activity was not sexual.

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