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.
What is sexual penetration?
The broader definition of sexual penetration as it appears in the Crimes Act 1958 at section 35A is inclusive of all body parts and objects which includes more commonly the penis, the tongue, the digits or an object.
Sexual penetration
(1) A person (A) sexually penetrates another person (B) if—
(a) A introduces (to any extent) a part of A’s body or an object into B’s vagina; or
(b) A introduces (to any extent) a part of A’s body or an object into B’s anus; or
(c) A introduces (to any extent) their penis into B’s mouth; or
(d) A, having introduced a part of A’s body or an object into B’s vagina, continues to keep it there; or
(e) A, having introduced a part of A’s body or an object into B’s anus, continues to keep it there; or
(f) A, having introduced their penis into B’s mouth, continues to keep it there.
It is often thought by people in the general community that digital penetration is not as serious as other forms of penetration. It is true to say that up until 1991 digital penetration could 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.
So as you can see the complexities are clear, as is the need to engage a competent criminal defence lawyer to assist you if you have been charged or are about to be interviewed. 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.
