Groping

Is groping sexual assault?

Yes. While several offences criminalise the act of groping in different circumstances, sexual assault is the most commonly reported groping offence (or sex offence generally) recorded by police in 2019 (Sentencing Advisory Council).

Sexual assault is defined in section 40 of the Crimes Act 1958. The prosecution must prove the following elements, beyond reasonable doubt, for a jury to find an accused person guilty of sexual assault:

1. the accused person (A) intentionally touched another person (B);
2. the touching was sexual;
3. B did not consent to the touching; and
4. A did not reasonably believe that B was consenting to the touching.

Sexual assault is an indictable offence with a maximum penalty of 10 years’ imprisonment and/or a fine of 1,200 penalty units. Sexual assault can be tried summarily in the Magistrates’ Court.

(1) Intentional touching

The first element relates to the voluntary act of touching. To be convicted of sexual assault for groping, the prosecution must prove that the touching by the accused was conscious, voluntary and deliberate. 

Touching is defined in section 35B as occurring in circumstances where the accused has touched the complainant:

• with any part of their body; or
• with anything else; or
• through anything, including anything worn by the person doing the touching or by the person touched.

The act of touching is considered voluntary and, therefore, intentional if the act was within the accused’s deliberate control and direction (R v Falconer).

(2) The touching was sexual

The second element that the prosecution must prove is that the touching was sexual. This factor differentiates an accidental touch from deliberate groping.

Under section 35B, touching may be sexual due to:

• the area of the body that was touched, including the genital or anal region, the buttocks or the breasts;
• the fact that the person doing the touching seeks or receives sexual arousal or sexual gratification from the touching; or
• any other aspect of the touching, including the circumstances in which it is done.

The definition of sexual touching is synonymous with what was previously called indecent touching in the law of indecent assault in Victoria from 1958 to 1 July 2015. Although there are differences in the new offence, the fundamental elements remain the same, and the extensive body of case law regarding indecent circumstances remains applicable to the offence of sexual assault.

(3) Without consent

The third element that the prosecution must prove is that the sexual touching occurred without the other person’s consent. Consent is defined in law as “free and voluntary agreement” (s 36). See further information below about the law of consent and the circumstances in which the law states a person does not consent.

(4) No reasonable belief in consent

The final element relates to the accused’s state of mind about the other person’s (complainant’s) consent. That is, the prosecution must prove, beyond reasonable doubt, that the accused did not reasonably believe that the complainant consented to the sexual touching (s 40(1)(d)).

This element will be satisfied in the following scenarios:

• The accused knew that the complainant was not consenting.
• The accused did not turn their mind to whether the complainant was consenting.
• Even though the accused believed the complainant was consenting, this was not a reasonable belief in the circumstances.

Under section 36A of the Crimes Act 1958, the accused’s belief is unreasonable unless they do or say something to determine whether the other person consents. Consent, therefore, can not be assumed and requires an initiating party to actively determine whether a person consents.

If a Magistrate or a jury (for a matter heard in higher courts) finds that the accused held a reasonable belief that the complainant was consenting, the accused must be found not guilty of the offence.

What constitutes consent to sexual touching?

Consent is crucial in determining whether sexual touching constitutes groping or sexual assault. Consent is relevant to the question of whether a person consented to the groping and the question of the accused’s mental state in respect of that consent (the reasonableness of the belief).

Section 36 of the Crimes Act 1958 defines sexual consent as “free and voluntary agreement”. The objectives and guiding principles of consent law are to:

Promote the principle that consent to an act is not to be assumed—that consent involves ongoing and mutual communication and decision-making between each person involved (that is, each person should seek the consent of each other person in a way and at a time that makes it clear whether they consent).

The definition of consent is qualified by a list of circumstances in which a person does not consent or is rendered incapable of consenting to sexual activity (ss 36, 36AA). These provisions build on the concept of informed consent, which must be particular to the intended behaviour, and the nature and circumstances of the activity clearly understood. Importantly, consent to sexual touching given previously may be withdrawn at any time before or during the sexual activity.

What non-consent looks like

Section 36 of the Crimes Act 1958 sets out the following conditions in which a person does not consent to sexual activity:

1. A person does not consent to an act just because they do not resist the act verbally or physically.
2. Just because a person has consented to previous sexual behaviour (whether the same or different) does not mean they consent to further sexual behaviour.

Non-consent due to force, coercion, abuse or incapacity

Section 36AA(1) sets out a non-exhaustive list of additional circumstances in which a person does not consent to sexual activity, including that:

• The person does not say or do anything to indicate consent to the act
• The person submits to the act because of force, fear of force, or harm
• The person submits to the act because of coercion or intimidation
• The person submits to the act because the person is unlawfully detained
• The person submits to the act because the person is overborne by the abuse of a relationship of authority or trust
• The person is asleep or unconscious
• The person is so intoxicated as to be incapable of consenting to the act
• The person is so intoxicated as to be incapable of withdrawing consent to the act.

Non-consent due to mistaken belief, stealthing or withdrawn consent etc

Circumstances under section 36AA(1) may also apply where a person gave consent when not so impaired (by alcohol or other drugs) to be rendered incapable of consenting:

• The person is incapable of understanding the sexual nature of the act
• The person is mistaken about the sexual nature of the act
• The person is mistaken about the identity of any other person involved in the act
• The person mistakenly believes that the act is for medical or hygienic purposes
• 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 purposes
• The person engages in the act on the basis that a condom is used, and either before, or during the act, a person involved intentionally does not use, removes, or tampers with the condom (known as ‘stealthing’)
• Having given consent to the act, the person later withdraws consent to the act taking place or continuing.

Statistics and sentencing outcomes for groping

According to the Sentencing Advisory Council, in the 10 years to 2019, the police recorded almost 21,500 sexual assault offences (including indecent assault), with 3,644 of these offences sentenced in the courts. Of these offences, 71% were sentenced in the Magistrates’ Court and 29% in the higher courts.

In the higher courts, in the five years to 30 June 2021, the most common sentence was imprisonment (70% of charges), with an average total effective sentence of 2.25 years (see SACStat). In the Magistrates Court, the most common sentence was a community corrections order (35.3%), with an average total effective sentence of 7 months (see SACStat).

The following case summaries offer examples of the range of sentences imposed by the higher courts for groping-related offences.

Sexual assault x 5: 23 months imprisonment

In DPP v Siwee in the County Court of Victoria, the accused pleaded guilty to five charges of sexual assault and one charge of attempted sexual assault. The incidents involved random acts of groping of women at night in Melbourne. The accused was 21 years old, isolated, and dealing with depression and alcohol abuse. The judge sentenced the accused to 23 months imprisonment, considering early pleas, remorse, and personal circumstances. The victims’ trauma and the need for deterrence were emphasised by the sentencing judge.

Indecent assault: 18 months imprisonment

In JF, heard at the County Court of Victoria, the accused was convicted of indecent assault. The offence occurred near the Yarra River in Fairfield on January 2, 2014. The accused resided at a facility as part of parole conditions for previous armed robbery convictions. The victim, a 27-year-old woman, was attacked while walking. The accused threw her to the ground, restrained her, placed his hand down her skirt on her vagina over her clothing and tried to feel and grope her. The accused was sentenced to 18 months imprisonment with a non-parole period of 12 months. He was also required to register under the Sex Offenders Registration Act for eight years. The Court considered the accused’s challenging background, intellectual disability, and the risk he posed to the community.

Sexual assault: 15-month CCO

In Papak, heard in the County Court of Victoria, the accused pleaded guilty to a charge of sexual assault at Goldfingers club in Melbourne. The complainant, an exotic dancer, was engaged for a private dance during which the accused groped her vagina with his fingers. The accused was sentenced to a 15-month community correction order with treatment and rehabilitation conditions. The sentencing judge ruled out imprisonment due to the accused’s guilty plea, reasonable prospects of rehabilitation and mental health considerations.

Controversial groping cases

Outrage has followed a recent Italian case in which a school caretaker was cleared of charges for alleged sexual assault of a student. The 17-year-old student at a school in Rome reported being groped by the caretaker as she walked up a staircase with a friend. She reported that she was adjusting her pants to her waist when she felt hands go down her pants, touching her buttocks before the man grabbed her underwear and lifted her about an inch.

The caretaker admitted touching the student, though he denied putting his hands in her pants, stating that the touching was a joke. Noting that her friend had witnessed the incident, the trial judges accepted the student’s account. However, in reaching a not guilty verdict, the judges ruled that there were “margins of doubt” about the “voluntary nature of the violation of the girl’s sexual freedom … considering the very nature of touching the buttocks, for a certainly minimal time… in a handful of seconds”. Furthermore, the judge added that the actions were without “libidinous intent” and were merely a “clumsy joke” (see the Guardian).

While an analysis of this decision is beyond the scope of this article, the consideration of sexual touching, in this case, sparked a wave of outrage globally, with people sharing videos to demonstrate how long and uncomfortable an experience for “a handful of seconds” can be.

Italian judges were also subject to wide criticism following a decision in the country’s highest appeals court in which two men were cleared of rape. In that decision, the judges, who were all female, gave reasons for the decision, including that the complainant looked “too masculine” to be a target for the offence.

Summary of groping in Victoria

Groping involves the non-consensual touching of another person in a sexual manner and constitutes a serious criminal offence under the Crimes Act 1958 in Victoria. Those found guilty of groping face severe penalties for sexual assault, including imprisonment. Our laws shape community expectations about what is acceptable conduct within the community. By criminalising conduct such as groping, the law seeks to uphold the fundamental right of every person to choose whether to engage in sexual activity.