SEX OFFENCE PURSUANT TO THE CRIMES ACT IN MELBOURNE VICTORIA
SEX OFFENCES INTRODUCTION
There are multiple offences under the Crimes Act which can be categorised as ‘sex offences’, but are not rape offences. While rape involves penetration of a victim without consent, sex offences encapsulate other behaviour prohibited by legislation and the common law. These include:
- Indecent assault;
- Sexual offences against children;
- Sexual offences against a person with a cognitive impairment; and
- Sexual servitude.
As with rape, in order to prove an accused person is guilty of indecent assault, the prosecution must show beyond reasonable doubt that the accused has satisfied the actus reus (physical elements) and mens rea (mental elements) which together constitute the crime.
Under section 39 of the Crimes Act, (now repealed) a person commits indecent assault if he or she assaults another person in indecent circumstances. Further, the accused:
(a) must be aware that the victim is not or might not be consenting, or
(b) has not given any thought as to whether the victim is consenting or might not be consenting, and
(c) must have intended the assault to occur.
‘Indecent circumstances’ is not clearly defined in the Crimes Act, but has been ascertained from common law cases such as R v Court and Sabet v R to mean ‘physical contact inherently indecent according to right minded persons’. Indecent contact can also arise from normal physical contact where it is performed in indecent circumstances. This area of law is not altogether clear. Whether assault has occurred in indecent circumstances is a matter which a professional criminal defence lawyer can help you with.
SEXUAL OFFENCES AGAINST CHILDREN
The Crimes Act 1958 contains numerous provisions pertaining to sex offences against a child. The following sections apply to sex offences against a child under the age of 16:
- Section 49A– Sexual penetration of a child under the age of 12 is an indictable offence. The accused is liable to level 2 imprisonment (25 years maximum).
- Section 49B – Sexual penetration of a child under the age of 16 is an indictable offence.
- Section 49C – Sexual penetration of a child aged 16 or 17 under care, supervision or authority (10 years maximum).
- Section 49J – Persistent sexual abuse of a child under the age of 16 to whom the accused is not married. Persistent sexual abuse means an initial offence and abuse on at least two other occasions during a particular period. The accused is liable to level 2 imprisonment (25 years maximum).
Section 53D of the Crimes Act provides that a person who intentionally or recklessly engages in actions, through the use of threats of force, deportation, unlawful detention, fraud or misrepresentation, and causes another person to provide or continue to provide sexual services, or conducts a business providing sexual services, is guilty of the offence of sexual servitude. The accused is liable to level 4 imprisonment (15 years maximum).
Aggravated sexual servitude, under section 53E of the Crimes Act, is framed similarly to sexual servitude. It is aggravated sexual servitude however, where the victim is under the age of 18, and the accused intended to commit or was reckless as to committing the offence against the person under the age of 18. These charges carry a maximum penalty of level 3 imprisonment (20 years maximum).
Statistics compiled by Victoria Police between July 2013 and June 2014 show that there were 7,467 instances of non-rape sex offences in that 12 month period. This is an increase of 9.5% from the previous year.
Of the 7,467 recorded cases, just over 5,000 were cleared during that same period, with an additional 1,807 offences cleared from previous years. The clearance rate therefore, was 91.2%, 5.3% higher than the previous year.
An accused person can be cleared because the charges are dropped, or because there isn’t enough evidence to convict them, or because they are found not guilty at trial.
While the clearance rate of sex offences is high, trends show that instances of sexual offences have been increasing consistently over the past 5 years. The 5,502 offences recorded in 2009/10 have increased steadily to the latest recording of 7,467 offences.
Sex offences arising from family incidents have increased by 2.2% from the previous year, as well as sex offences not arising from family incidents increasing by 13.5%. This has meant however, that of the 7,467 offences in the previous year, 32.7% of offences were perpetrated by a family member. This is down 2.4% from the previous year.
The majority of the sex offences (54.6%) occurred at residential locations. This is an increase of 2.5% from the previous year. An increase of 17.8% for non-residential offences however, shows that offences occurring away from the family home are nonetheless on the incline.
The number of victims recorded was 4,614, indicating a significant proportion of victims who were sexually offended on multiple occasions. Females made up 79.2% of the victims, however the 947 male victims was an 8% increase on the previous year’s male victim statistics.
Sex offence charges are a serious matter. Most matters fall within the indictable category, and guilty parties may be sentenced to extended periods of detention. Statistics show that sex offences are increasing in almost every category. While a high percentage of cases are dismissed, it is critical that you contact an experienced criminal lawyer if you have been charged with a sex offence pursuant to the Crimes Act 1958 in Victoria or any other state.
The help of a professional defence lawyer can ensure your reputation within the community is preserved, and you avoid any unjust or disproportionate punishment. If you have been charged with a sex offence, or know someone in need of legal assistance, contact one of our experienced criminal lawyers today.