Sexual Offences

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The legislation relating to sexual offences is found in ss.35-62 of the Crimes Act 1958 (Vic) and are linked to below. If a new sexual offence is created it is likely to be inserted within these sections.

They include:

  • Rape s.38;
  • Compelling sexual penetration s.38a;
  • Indecent Assault s.39;
  • Assault with intent to rape s.40;
  • Incest s.44;
  • Sexual Penetration of a child under 16 s.45;
  • Indecent act with child under the age of 16 s.47;
  • Persistent sexual abuse of a child under the age of 16 s.47A;
  • Sexual penetration of 16 or 17 year old child s.48;
  • Indecent act with 16 or 17 year old child s.49;

Many of these sexual offences have to do with sexual penetration, the definition of which is found in s.35. Many sexual offences also have elements to do with consent or the lack thereof. The meaning of consent is ‘free agreement’ as defined in s.36–it is an inclusive definition and extends further than the previous common law definition. An awareness that a person is not consenting in the mind of the accused is a critical element in the crime of rape, or not giving any thought as to whether the complainant is consenting or might not be consenting. The reasonableness of the belief of consent doesn’t qualify as an element but it is one ‘one of many guides’ to consider in determining his state of mind. See generally R v Zilm [2006] VSCA 72.

s.37AAA relates to jury directions on the meaning of consent. Of particular note is (d)–(e)(i) & (ii) (reproduced below)

(d) that the fact that a person did not say or do anything to indicate
free agreement to a sexual act at the time at which the act took place
is enough to show that the act took place without that person’s free
(e) that the jury is not to regard a person as having freely agreed to a
sexual act just because-
(i) she or he did not protest or physically resist; or
(ii) she or he did not sustain physical injury;

Further jury directions in relation to consent is found in s.37 and discussed further in the case of R v Yusuf [2005] VSCA 69.

Cases involving the consumption of drugs and alcohol and free consent include R v Salih [2005] VSCA 282. Previously under the common law evidence of what the complainant’s prior sexual history, reputation, activities etc. were admissible. This has been reversed by the Evidence Act 2008 (Vic). The legislation must be satisfied before evidence of prior sexual activity can be led, see Gregory v The Queen (1983) 151 CLR 566. This case involved a complainant who consented to sex with three men and not six men. This evidence was excluded at trial. The High Court held that the evidence of this went to an issue that was at the heart of the case and should not have been excluded.

Should you require a lawyer please feel free to contact Grigor Lawyers. It is highly advisable in indictable matters that you contact a legal practitioner. Grigor Lawyers can can advise and represent you in these matters.


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