Trigger warning: This article contains discussions of rape and sexual assault. It is important to acknowledge that discussions of rape and sexual assault can be triggering for survivors of these crimes. Readers who may be triggered by these topics are advised to proceed with caution.
Rape and sexual assault are forms of sexual violence that can have devastating consequences for victims. Perceived or real vulnerability of the victim is a far more common factor in sexual assault than the victim’s appearance or behaviour.
This article will discuss sections 37B to 43 of the Crimes Act 1958 Victoria which sets out the rules and penalties:
- Rape
- Rape by compelling sexual penetration
- Sexual assault
- Sexual assault by compelling sexual touching
- Assault with intent to commit a sexual offence
- Threat to commit a sexual offence.
Rape and Sexual Assault: Guiding Principles
Section 37B establishes the intention of the Parliament that in interpreting and applying these rules on rape and sexual assault, courts are to have regard to the fact that:
- there is a high incidence of sexual violence within society; and
- sexual offences are significantly under‑reported; and
- a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment or mental illness; and
- victims commonly know their sexual offenders; and
- sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.
The Crime of Rape
Section 38 states that a person commits an offence if:
- The offender intentionally sexually penetrates another person; and
- The victim does not consent to the penetration; and
- The offender does not reasonably believe that B consents to the penetration.
A person who commits this offence is liable to level 2 imprisonment (25 years maximum). Moreover, the standard sentence for an offence under this section is 10 years.
However, there is an exception. Section 48A of the Act states that a person does not commit offence of rape if the sexual penetration or touching is of a person and is done in the course of a procedure carried out in good faith for medical or hygienic purposes.
Rape by Compelling Sexual Penetration
Section 39 states that a person commits an offence if the offender intentionally causes another person:
- to sexually penetrate the offender; or
- to sexually penetrate themselves; or
- to sexually penetrate another person or an animal; or
- to be sexually penetrated by a third person or by an animal.
In these instances, the victim does not consent to the sexual penetration and the offender does not reasonably believe that the victim consents to the sexual penetration. The penalty for the conviction under this section is 25 years maximum.
Exception: Section 48A – states that a person does not commit offence of rape by compelling sexual penetration if the sexual penetration or touching 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.
The Crime of Sexual Assault
Section 40 provides that if the offender:
- intentionally touches another person; and
- the touching is sexual; and
- the victim does not consent to the touching; and
- the offender does not reasonably believe that B consents to the touching,
the crime of sexual assault is committed. The court may impose a 10-year maximum imprisonment upon conviction of the offender. However, a mistaken but honest and reasonable belief that the touching was not sexual is not a defence to this offence.
Sexual Assault by Compelling Sexual Touching
Section 41 states that an offender commits this offence if the offender intentionally causes another person:
- to touch him or her; or
- to touch themselves; or
- to touch another person or an animal; or
- to be touched by another person or by an animal; and
Moreover, the touching must be sexual and the victim does not consent to such act. The offender must not not reasonably believe that the victim consents to the touching. The penalty for conviction is a 10-year imprisonment (maximum).
Assault With Intent to Commit a Sexual Offence
Section 42 state that an offender commits this offence if:
- the offender intentionally applies force to another person; and
- the victim does not consent to the application of that force; and
- at the time of applying that force A intends that B take part in a sexual act; and
- the offender does not reasonably believe that B would consent to taking part in that sexual act.
The penalty for this offence is imprisonment for 15 years maximum. Note that the offender may commit the offence even if the victim is not aware of the application of force by the offender. Moreover, the offender may commit the offence whether or not he or she reasonably believes that the victim would consent to taking part in a sexual act depends on the circumstances.
See section 36B for the effect of intoxication on the standard to be applied in determining whether a person has a reasonable belief.
Rape and Sexual Assault: Threat to Commit a Sexual Offence
Section 43 of the Act states that a person commits this offence if:
- the offender makes to another person a threat to rape or sexually assault the victim or a third person; and
- the offender intends that the victim will believe, or will probably believe, that the former will carry out the threat.
Also, words or conduct may constitute a threat if by those words or that conduct an intention to do any of the following is conveyed:
- to sexually penetrate or sexually touch the victimes without their consent
- to cause the victims, without their consent, to sexually penetrate or sexually touch:
- the offender
- the other victims
- themselves
- another person
- an animal
- to cause the victims, without their consent, to be sexually penetrated or sexually touched by another person or by an animal.
Court may impose a maximum of 5 years imprisonment upon the offenders convicted of this crime. Also, note that they can make a threat by words or conduct and may be explicit or implicit.
Get Help from a Criminal Offence Lawyer
If you or someone you know has been a victim of rape and sexual assault, seek legal assistance immediately. This is necessary to ensure that the perpetrator is accountable and that you receive the support and compensation you deserve.
Taking the first step towards seeking legal help can be empowering, and a qualified criminal offence lawyer from JB Solicitors can be your trusted partner on the path to justice and healing from the horrifying effects of rape and sexual assault.
Contact us today.