Sex Offence Pursuant to the Crimes Act in Melbourne Victoria

by Dribbin & Brown Criminal Lawyers

SEX OFFENCE PURSUANT TO THE CRIMES ACT IN MELBOURNE VICTORIA


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.

 

INDECENT ASSAULT

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, a person commits indecent assault if he or she assaults another person in indecent circumstances. Further, the accused:

  • must be aware that the victim is not or might not be consenting, or
  • has not given any thought as to whether the victim is consenting or might not be consenting, and
  • 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.

Under section 40 of the Crimes Act, a person may also be charged for assault with intention to rape, even if rape has not occurred. Where indecent assault has also occurred in these circumstances it may also be charged as a separate offence. 

 

SEXUAL OFFENCES AGAINST CHILDREN

The Crimes Act 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:

  1. Section 45(2)(a) – 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).
  2. Section 45(2)(b) – Sexual penetration of a child between the ages of 12 and 16 is an indictable offence. If the child was under the care, supervision or authority of the accused, the accused is liable to level 4 imprisonment (15 years maximum).
  3. Section 45(2)(c) – Sexual penetration of a child between the ages of 12 and 16 in any other case than under subsection (2)(b) is an indictable offence. The accused is liable to level 5 imprisonment (10 years maximum).
  4. Section 47 – A person must not wilfully commit or be a party to the commission of an indecent act with or in the presence of a child under the age of 16. The accused is liable to a penalty of level 5 imprisonment (10 years maximum).
  5. Section 47A – 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).
  6. Section 58(1) – A person must not solicit or procure a child under the age of 16 for sexual penetration or an indecent act outside of marriage. The accused is liable to level 5 imprisonment (10 years maximum).

Similar laws apply to children aged between 16 and 17 years of age:

  1. Section 48 – A person must not take part in sexual penetration with a 16 or 17 year old child to whom they are not married and who is under his or her care, supervision or authority. The accused may be liable to level 5 imprisonment (10 years maximum).
  2. Section 49 – A person must not wilfully commit an indecent act with or in the presence of a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority. The accused may be liable to level 6 imprisonment (5 years maximum).
  3. Section 58(3) - A person must not solicit or procure a 16 or 17 year old child for sexual penetration or an indecent act outside of marriage and who is under their care, supervision or authority. The accused is liable to level 5 imprisonment (10 years maximum).

 

DEFENCES

It is a defence to a charge under section 45 of the Crimes Act if the persons are married. It is also a defence under section 45 if the accused can show that they reasonably believed the child was aged 16 or older, or the accused was not more than 2 years older than the child, or the accused reasonably believed he or she was married to the child. 

Consent is not a defence to a charge under section 47 unless, at the time of the alleged offence, the accused reasonably believed the child was over 16 years of age, or the accused was not more than 2 years older than the child, or the accused reasonably believed he or she was married to the child.

Consent is not a defence to a charge under sections 48 or 49 unless, at the time of the alleged offence, the accused reasonably believed the child was over 18 years of age, or the accused reasonably believed he or she was married to the child.

 

SEXUAL OFFENCES AGAINST PERSONS WITH A COGNITIVE IMPAIRMENT

Under section 50 of the Crimes Act, cognitive impairment includes impairment due to mental illness, intellectual disability, dementia or brain injury. Providers of medical or therapeutic services (section 51) or workers at facilities (section 52) must not penetrate a person with a cognitive impairment who is not their spouse. Further, providers of medical or therapeutic services (section 51) or workers at facilities (section 52) must not engage in an indecent act with a person with a cognitive impairment who is not their spouse.

 

DEFENCES

Under section 51(3) and 52(3) it is a defence to a charge under sections 51 and 52 if the accused believed on reasonable grounds that there was no cognitive impairment of the victim. Further, indecent acts do not include acts done in the course of appropriate and generally accepted medical, therapeutic or hygienic procedures.

 

SEXUAL SERVITUDE

Section 60AB 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 60AC 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).

Sections 60AD and 60AE also apply to recruiting for sexual services and aggravated recruiting for sexual services. These carry a maximum penalty of level 6 imprisonment (5 years maximum) and level 5 imprisonment (10 years maximum) respectively.

 

STATISTICS

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.

 

CONTACT

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 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. Dribbin & Brown Criminal Lawyers have office in Melbourne CBD, Dandenong, Frankston, Moorabin & Ringwood.

http://www.criminalsolicitorsmelbourne.com.au/what_we_do/sex-offence-pursuant-crimes-act

 



Findlaw

We welcome your feedback

Hi there! We want to make this site as good as it can for you, the user. Please tell us what you would like to do differently and we will do our best to accommodate!

   
Protected by FormShield


 
 
We've updated our Privacy Statement, before you continue. please read our new Privacy Statement and familiarise yourself with the terms.