s40 Sexual Assault

Sexual Assault Charge section 40 of the Crimes Act

What the prosecution must prove beyond a reasonable doubt

That the accused;

    1. intentionally touched another person and
    2. the touching was sexual and
    3. the other person was not consenting to the touching; and
    4. the accused did not reasonably believe that the other person was consenting to the touching

The section is section 40 of the Crimes Act 1958

Maximum Penalty:

Level 5 imprisonment (10 years maximum).

The elements in more detail:

1. There was an intentional touching

Touching is defined as occurring in circumstances where the accused has touched the complainant (See section 35B of the Crimes Act)

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

2. The prosecution must prove that the touching was sexual.

The touching can be sexual for the following reasons, as further defined in s35B of the Crimes Act 1958.

(a)    the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female, or a person who identifies as female, the breasts; or

(b)    the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or

(c)    any other aspect of the touching, including the circumstances in which it is done (Crimes Act 1958 s35B(2)).

What can amount to a sexual touching remains synonymous to what used to be called indecent touching encapsulated in the charge of indecent assault that existed in Victoria from 1958 through to 1 July of 2015. In 2015 the new offence of sexual assault was introduced. Although there are  differences many of the elements remain the same and therefore the deep body of case law that exists in relation to what can amount to an indecent touch or a sexual touch remains very valid in any analyses of what makes out a sexual assault.

3. Without Consent

Consent is defined at section 36 of the Crimes Act 1958 to mean free agreement. Section 36(2) listed a number of situations where there is no consent. This section now outlines circumstances where a complainant cannot consent.

4. No Reasonable Belief in Consent

This element will be satisfied in any one of the following scenarios

  • The accused did not believe that the complainant was consenting, including the circumstance where the accused did not turn their mind to the question of consent
  • The accused knew the complainant was not consenting
  • The accused believed that the complainant was consenting but that it was not a reasonable belief in all the circumstances.

The direction in relation how a jury can assess an accused persons reasonably belief in consent has had a serous over hall since 2017. The act now makes it plain that the accused intoxication cannot be considered by a jury when assessing the accused reasonable belief in consent, the jury must make the assessment from the perspective that the accused was sober and on an objective standard. The act also makes is plain that there are circumstances where given the complainants level of intoxication the jury can make a finding notwithstanding express consent is given, the complainant was not in a fit state to give such consent. These are just two examples how the law in relation to “reasonable belief” has been restricted in favour of the prosecution.

If you have been charged with sexual assault you must call an experienced sex offence lawyer to assist you. See our sex offences page to see our firms experience with sex offence cases. These matters are complicated and it takes an experienced lawyer to navigate through the pitfalls that exist when one is being prosecuted in relation to serious sexual offending.