Digital penetration is just one form of sexual penetration. Digital penetration as it sounds refers to the use of the digits, that is, the fingers, the thumbs or the toes to sexually penetrate the vagina or anus of a person. The specific definition of digital penetration can be extracted from the broader definition of sexual penetration defined at section 35A of the Crimes Act 1958 and can be explained as follows;
A person (A) digitally penetrates another person (B) if A introduces their finger/s, thumbs or toes (to any extent) into the vagina of B.
A person (A) digitally penetrates another person (B) if A introduces their finger/s, thumbs or toes (to any extent) into the anus of B.
The Broader Definition of Sexual Penetration
A person (A) sexually penetrates another person (B) if either;
- (A) introduces to any extent, a part of A’s body (including the digits) or an object into B’s vagina or anus or
- (A) introduces to any extent their penis into B’s mouth or
- (A) having introduced (A)’s body part (including the digits) or object into B’s vagina or anus or having introduced their penis into B’s mouth, continues to leave it there.
Digital Penetration and the Law in Victoria
It is often thought by people in the general community that digital penetration or digital rape is not as serious as other forms of sexual penetration. It is true to say that up until 1991 digital penetration could not attract the charge of rape and only form the basis for the lesser charge of indecent assault but that has all changed now with the introduction of section 35 of the Crimes Act 1958.
Further to the legislative changes the Court of Appeal in R v Lomax [1998] 1 VR 551 has ruled that there is no hierarchy of penetration in Victoria making one form of penetration more or less serious than another. What this means is that whether someone penetrates another with their penis or digit does not mean the penetration is more or less serious. When assessing the gravity of a penetrative act all the facts of the case must be considered. When assessing the gravity of a penetrative act involving a digit one might consider that a digital penetration does not carry the same risk of injury, infection or risk pregnancy when compared to a penetrative act involving a penis. But these are merely examples of what might be considered when looking at the surrounding circumstances. To make a proper assessment you need to consult a lawyer.
It is also relevant to consider that in the more recent case of DPP v Shrestha [2017] VSCA 364 the Court of Appeal expressed the need to uplift sentences involving digital penetration. Common charges that relate to digital penetration are, rape, and sexual penetration of a minor.
If you have been charged or are about to be interviewed you should call our office for advice. Dribbin & Brown have handled hundreds of cases involving digital penetration. Consideration of the finer nuances of the evidence, consideration of what is said on a record of interview and meticulous preparation are all so important to achieving the right outcome. If you are facing charges or being asked to attend an interview you should engage our office to assist you.
To read a recent case study involving a rape and digital penetration follow the link. To read more about our firms experience with sex offences follow the link.
