Sexual penetration in Victoria is defined at s35A of the Crimes Act 1958, as the insertion, to any extent, of an object or of any part of the body (most commonly the penis or digits), into the vagina or anus of a person. Penetration can also include the introduction of the penis into the mouth of another person.
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.
(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.
This last part covers a scenario where consent may initially be given in relation to sexual penetration but is withdrawn in circumstances where penetration continues. The purpose here is to make it plain that although penetration has already occurred, the act of penetration is considered to be a continuing action.
When does penetration occur?
- A question commonly asked about offences involving sexual penetration is, how much penetration is considered penetration? And the simple answer to that question is as stated in the legislation, “to any extent”, although it should be noted that more broadly, a mere touching of the relevant body part does not count as a penetrative act (Anderson v R  VSCA 108).
- Duration or time of the penetration, albeit for the shortest of periods, will still amount to a penetration.
- It does not matter if the purpose of the penetration was for sexual gratification or not.
- It is important to note that when considering a sexual penetration in relation to the vagina, that the external genitalia is included as part of the vagina, so any penetration of the labia, being the fold of skin around the vaginal opening, will also constitute sexual penetration at law in Victoria.
- When considering what is a vagina, the definition of vagina in the legislation also includes a surgically constructed vagina to cover transsexuals, see section 35 of the Crimes Act 1958.
- It should be noted that in relation to penetration, the identification of the method of penetration is irrelevant but might still go to the credibility and reliability of the complainant.
Sexual Penetration and old offending
It is noteworthy in relation to old offending, that is offending that occurred prior to the introduction of the Crimes (Sexual Offences) Act 1991, that certain acts that would now constitute sexual penetration, did not constitute sexual penetration at that time. Consequently charges that arise from that period involving particularly types of penetration will only attract the charge of indecent assault as opposed to the more serious charge of rape where there is a lack of consent.
To understand this better, it is important to understand the chronology of the legislation.
Prior to 1 March of 1981 sexual penetration only included penetration of the vagina with the penis. A sexual act was not considered a penetrative act if it involved digital penetration of the vagina or penile penetration of the mouth or the anus.
After 1981 and until 1991, the definition of sexual penetration was widened to include penetration of the mouth by the penis, penile penetration of the anus and penetration of the vagina or anus with an object other than another body part.
After 1991, the definition of sexual penetration was widened again to include penetration of the vagina or anus with a body part which included digital penetration.
Why is it important that any criminal lawyer you engage understands the above information? Because if you are facing dated sexual offending that involves sexually penetrative acts, it is relevant in determining the correct charge that applies. In many circumstances, penetrative acts that occurred prior to 1991 will be charged as an indecent assaults as opposed to a rape. The difference in sentence is significant.
The law relating to sexual offending is very technical. As you can see from the above discussion the time frames are important and understanding what can amount to sexual penetration is important. If you are facing sexual related charges involving penetration you should call our office today to set up an appointment with one of our experienced sex offence lawyers.