Sexual assault is a serious criminal offence under section 40 of the Crimes Act 1958 (Vic). It involves intentional sexual touching of another person without their consent. Unlike rape, sexual assault does not require penetration — it covers a broad range of sexual touching. A charge of sexual assault carries significant penalties and consequences, and it is important for anyone charged to seek experienced legal advice immediately.

Sexual assault matters are usually heard in the Magistrates’ Court of Victoria, depending on the circumstances. At Angus Cameron and Partners, we have represented countless clients facing sexual offence charges across all Victorian courts and understand the sensitivity and complexity that these matters require.

Elements

The prosecution must prove four elements beyond reasonable doubt:

  • you intentionally touched another person;
  • the touching was sexual;
  • the other person did not consent to the touching; and
  • you did not reasonably believe that the other person was consenting.
Touching

Touching is defined broadly. It can be done with any part of the body, with any object, or through clothing or anything else worn by either person. There is no requirement that skin-to-skin contact occur.

Sexual touching

Touching is sexual if it involves a sexual area of the body — including the genital or anal region, the buttocks, or (in the case of a female or a person who identifies as female) the breasts. Touching can also be sexual if the person doing the touching seeks or obtains sexual gratification or arousal from it, or if any other aspect of the touching — including the circumstances in which it occurs — makes it sexual in nature.

Consent

Consent means free agreement. The law recognises that consent is absent in a wide range of circumstances, including but not limited to the following:

  • the person submitted because of force, or the fear of force, directed at them or someone else;
  • the person submitted because of a fear of harm of any kind, directed at them, someone else, or an animal;
  • the person submits to the act because the person is overborne by the abuse of a relationship of authority or trust;
  • the person submitted because they were unlawfully detained;
  • the person was asleep or unconscious;
  • the person was so affected by alcohol or another drug as to be incapable of consenting;
  • the person was so affected by alcohol or another drug as to be incapable of withdrawing consent;
  • the person was incapable of understanding the sexual nature of the act;
  • the person was mistaken about the sexual nature of the act;
  • the person was mistaken about the identity of any other person involved;
  • the person mistakenly believed the act was for medical or hygienic purposes;
  • the person did not say or do anything to indicate consent — consent requires active communication and cannot be assumed from silence or passivity; or
  • the person had previously consented but withdrew that consent before or during the act;
  • the act occurs in the provision of commercial sexual services and the person engages in the act because of a false or misleading representation that the person will be paid;
  • if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research; or
  • “stealthing”: the person engages in the act on the basis that a condom is used and either – (i) before or during the act, any other person involved in the act intentionally removes the condom or tampers with the condom; or (i) the person who was to use the condom intentionally does not use it.

It is important to note that mere impairment of judgement or lowering of inhibitions due to alcohol or drugs does not, on its own, mean a person is incapable of consenting. The question is whether the person was so affected as to be incapable of consenting or withdrawing consent.

Reasonable belief in consent

The prosecution must also prove that you did not reasonably believe the other person was consenting.

Whether a belief was reasonable depends on the circumstances, including what steps, if any, you took to find out whether the other person was consenting. A belief in consent based solely on a general assumption — for example, an assumption rooted in cultural, religious or other views about when people consent to sexual activity — is not a reasonable belief. If you were intoxicated, the reasonableness of your belief is assessed against the standard of a sober reasonable person (if your intoxication was self-induced).

Due to recent changes in the law, a belief is not considered reasonable if, within a reasonable time before or at the time the act took place, you did not say or do anything to find out whether the person consented.

It is important to note that it is not a defence to a charge of sexual assault that you honestly and reasonably believed the touching was not sexual. Whether the touching was sexual is assessed objectively, and a mistaken belief about its sexual nature cannot be relied upon as a defence.

Defences

Being charged with sexual assault does not mean you will be convicted. There are several defences that may be available depending on the circumstances of your case.

Consent

If the complainant freely agreed to the touching, the charge cannot be made out. Whether consent existed is a question for the jury, assessed by reference to all the circumstances.

Touching was not sexual

If the touching was not sexual in nature — assessed objectively having regard to the area of the body touched, the circumstances, and any other relevant factors — the charge will not be made out. Note however that an honest and reasonable belief that the touching was not sexual is not itself a defence; the question is whether the touching was in fact sexual.

Reasonable belief in consent

Even if the jury finds the complainant did not consent, you may not be convicted if you held a genuine and reasonable belief that they were consenting. Whether your belief was reasonable is assessed objectively, having regard to all the circumstances including the steps you took to ascertain consent.

Insufficient evidence or improperly obtained evidence

The prosecution must prove each element beyond reasonable doubt. Questions of evidence — including the reliability of witness accounts and the circumstances in which evidence was gathered — can be critical. Where evidence has been obtained unlawfully, there may be grounds to seek its exclusion. These are technical matters that require experienced legal advice.

FAQs

What is the difference between sexual assault and rape?

Sexual assault involves intentional sexual touching without consent. Rape involves sexual penetration without consent. Both offences require proof that the accused did not reasonably believe the other person was consenting, but rape is the more serious offence and carries a higher maximum penalty. Sexual assault covers a broader range of conduct and does not require penetration.

Does the touching have to be skin-to-skin to be sexual assault?

No. Touching can occur through clothing or any other material. There is no requirement for direct skin contact.

What makes touching “sexual”?

Touching is sexual if it involves a sexual area of the body (such as the genitals, anus, buttocks or breasts), if the person doing the touching seeks sexual gratification from it, or if the circumstances of the touching make it sexual in nature. The question is assessed objectively, not simply on the basis of what the accused believed.

What does “free agreement” mean?

Consent means free agreement. It must be freely and voluntarily given. The law sets out a number of circumstances in which a person is taken not to have freely agreed — including where they submitted due to force or fear, where they were asleep or heavily intoxicated, or where they did not communicate agreement in any way. Silence or passivity is not consent.

What are the penalties for sexual assault in Victoria?

Sexual assault carries a maximum penalty of 10 years imprisonment under the Crimes Act 1958 (Vic). Some aggravated forms of the offence carry higher maximum penalties. The actual sentence will depend on the nature of the conduct, the circumstances of the offending, and your personal history.

Do I need a lawyer if I'm charged with sexual assault?

Yes. Sexual assault is a serious charge with significant penalties and lasting consequences. The legal and factual issues — including consent and the sexual nature of the touching — are complex. An experienced criminal lawyer is essential to protect your rights and ensure every available defence is properly considered.

Is sexual assault an indictable offence in Victoria?

Some forms of sexual assault can be heard in the Magistrates’ Court, while others must be dealt with in the County Court. The charge level and circumstances determine the appropriate court.

What is the average sentence for sexual assault in Victoria?

Sentences vary depending on the nature and circumstances of the conduct, the vulnerability of the complainant, and the offender’s personal background. We can provide a realistic assessment of likely outcomes once we have reviewed the full facts of your matter.

Can I get bail if charged with sexual assault?

Bail is often possible but will depend on the seriousness of the specific allegations and your personal circumstances. We make urgent bail applications and present the strongest possible case for release.

Related Guides

You may also find the following guides useful:

  • Guide to Rape — the more serious sexual offence involving penetration