The law is clear about sexual offences, but sometimes proving the offending occurred can be difficult. Having solid legal representation in any sexual offences case is incredibly important, so if you do not currently have legal counsel, contact Vanessa Ash. Here we review briefly what the law states about a collection of sexual offences.

     Sexual assault includes:

• Rape
• Incest
• Child abuse
• Unwanted sexual behaviour (unwanted kissing, touching)
• Being forced to watch pornography or someone masturbating

     Penalties for sexual assault
Sexual offences are amongst the most serious, and penalties are from five up to 25 years in prison. The victim of sexual assault has a few options available to them, including reporting it to the police, applying for a family violence intervention order, or a personal safety intervention order.

     Rape laws – what is considered rape in Victoria
A person is said to have raped if:

1. They sexually penetrate another person without that person’s consent, either being aware that the other person is aware of the lack of consent (or probable lack of consent).
2. If sexual penetration begins, but penetration is not withdrawn after consent is withdrawn, or it becomes apparent that the person being penetrated cannot consent or might not be consenting.
3. A person is forced to sexually penetrate another person (or not stop penetrating). This could be the person forcing the penetrating, or another person. In this situation, it doesn’t matter if the person being penetrated consents, since the rape is really occurring to the person being forced to penetrate, and possibly the other person.

     Sexual penetration
This refers to putting any part of the penis into the vagina, anus or mouth, or any part of an object or other body part (finger, tongue) into the vagina or anus of another person. It doesn’t matter how much or little of this object or body part is penetrated, or for how long, or if semen is present.

     The specific details surrounding consent
This means free agreement of free will. A person is not agreeing freely to penetration if they are being forced (or there was fear that someone else would be forced), because of fear of what might happen to them or someone else, or being held prisoner (in a car or house, for example).

A person is not freely agreeing if they are asleep, unconscious, affected by drugs or alcohol, do not understand the sexual nature of the act, mistake the person for someone else, or believe that the act is for medical or cleanliness purposes.

If a person does not agree to the act, it is rape, no matter what the relationship.

     Indecent assault
This applies to sexual acts other than sexual penetration, and could include touching other body parts like breasts or buttocks without permission or agreement (consent).

     Incest
Incest occurs when close relatives sexually penetrate one another. It is still incest if one person is under the age of 18 and the other person is a parent’s de facto spouse (unrelated by blood). This means fathers, mothers, sisters, brothers, step siblings, step parents, grandparents, step grandparents.

Participating in incest by force is not against the law (it’s rape and incest) and the person who did the forcing has broken the law.

     Sexual slavery (servitude)
This covers prostitution and other sex work whereby a person is forced into sexual slavery. This person may be held against their will, have to pay back a debt (say, for travel to another country or accommodation), and been threatened with assault or deportation or other threats.

     Sexual offending against children
Young people under 18 have special rules that apply with regards to sexual conduct.

     Sexual offences against children include:

• Sexually penetrating a child aged 12 or younger
• Sexual penetration of a child aged between 12 and 16
• An indecent act with a child under the age of 16
• Persistent and continued sexual abuse of a child under the age of 16
• Sexually penetrating or an indecent act with a child aged 16 or 17 by an adult carer or supervisor of the child (teachers, employers, foster parents, sporting coach)
• Procuring a child under 16 for sexual penetration or indecent acts by an adult
• Procuring a child aged 16 or 17 for sexual penetration or indecent acts by an adult who cares for, supervises or has some authority over the child
• Possessing and producing child pornography

In these cases, it doesn’t matter if the child agreed (providing consent) but there are some caveats. If the child consented and the other person had reasonable grounds to think the child was over 16, the other person (the accused) was no more than two years older than the child in question, or the accused believed that they were married to the child.

     Sexual offending against those who are cognitively impaired
This includes anyone with a brain injury, dementia, mental illness or intellectual disability. Those specifically mentioned here are those working or volunteering in residential facilities, who must not take part in any act of sexual penetration or an indecent act with these people, even if the person agreed.

If you are facing charges on sex offences, contact Vanessa Ash and Associates for expert legal advice.