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Sexual Offences in Victoria, Australia

Learn about the various sexual offences that are heard in the criminal courts of Victoria, Australia. What are the laws, sentencing penalties, and the elements that would make a person guilty of these charges?

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Sexual Offences in Victoria, Australia

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  1. SEXUAL OFFENCESin Victoria, Australia When is a person guilty? What are the laws? What are the penalties imposed?

  2. sexual offence (sex crime) noun \ ˈsek-sh(ə-)wəlˌ ə-ˈfen(t)s (ˈseksˌ ˈkrīm) \ A criminal behaviour that generally involves illegal or coerced sexual conduct against another individual. It is an offence that falls under crimes against the person. *A person convicted of a sexual offence is considered a sexual offender.

  3. Sexual crimes comprise a significant portion of all criminal legal matters that are heard before Victorian courts. • From 2016 to 2017, the number of offenders charged primarily for a sexual crime increased by 3% (from 7,898 to 8,123). This has been the sixth consecutive annual increase. • At the end of 2016, there were 12,956 sexual offences recorded across the state, with an offence rate of 214.0 offences per 100,000 people. • Sexual offences have increased by 45% in the last 5 years from 2016, up from 8,936 offences recorded at the end of 2012. • From 2010 to 2017, the number of sexual offenders has increased by 40%.

  4. Here are some of the sexual offences that may be filed against a person in the state of Victoria: • Rape • Incest • Grooming • Upskirting • Sexual Assault • Child Pornography • Sexual Penetration of a Child • Distribution of an Intimate Image • Threat to Commit a Sexual Offence • Visually Capturing Genital or Anal Region • Assault With Intent to Commit a Sexual Offence • Sexual Activity in the Presence of a Child Under the Age of 16

  5. RAPE ELEMENTS: WHEN IS THE ACCUSED GUILTY? The accused intentionally sexually penetrated a person; the person did not consent to the sexual penetration; and the accused did not reasonably believe that the person consented to the sexual penetration. WHAT IS THE LAW? Section 38 of the Crimes Act 1958 - Rape WHAT IS THE PENALTY IMPOSED? Level 2 imprisonment (25 years maximum)

  6. INCEST Incest is broken down into four (4) different offences each with its own legislation. • SEXUAL PENETRATION OF A CHILD OR LINEAL DESCENDANT • SEXUAL PENETRATION OF A STEP-CHILD • SEXUAL PENETRATION OF A PARENT, LINEAL ANCESTOR • OR STEP-PARENT • SEXUAL PENETRATION OF A SIBLING OR HALF-SIBLING

  7. SEXUALPENETRATIONOFA CHILD ORLINEALDESCENDANT ELEMENTS: WHEN ISTHEACCUSED GUILTY? 1. The accused intentionally - a. sexually penetrated a person, or b. caused or allowed a person to sexually penetrate him/her (the accused); 2. the person is a child or lineal descendant of the accused; and 3. the accused knew that the person is his/her child or lineal descendant. WHAT IS THE LAW? Section 50C of the Crimes Act 1958 - Sexual Penetration of a Child or Lineal Descendant WHAT IS THE PENALTY IMPOSED? Level 2 imprisonment (25 years maximum)

  8. SEXUALPENETRATION OFA STEP-CHILD ELEMENTS: WHEN ISTHEACCUSED GUILTY? 1. The accused intentionally - a. sexually penetrated a person, or b. caused or allowed a person to sexually penetrate him/her (the accused); 2. the person is a child or lineal descendant of the accused’s spouse or domestic partner; and 3. the accused knew that the person is a child or lineal descendant of his/her spouse or domestic partner. WHAT IS THE LAW? Section 50D of the Crimes Act 1958 - Sexual Penetration of a Step-Child WHAT IS THE PENALTY IMPOSED? Level 2 imprisonment (25 years maximum)

  9. SEXUALPENETRATIONOFA PARENT, LINEAL ANCESTOR OR STEP-PARENT ELEMENTS: WHEN ISTHEACCUSED GUILTY? 1. The accused intentionally - a. sexually penetrated a person, or b. caused or allowed a person to sexually penetrate him/her (the accused); 2. the accused is 18 years of age or more; 3. the person is the parent, lineal ancestor or step-parent of the accused; and 4. the accused knew that the person is his/her parent, lineal ancestor or step-parent. WHAT IS THE LAW? Section 50E of the Crimes Act 1958 - Sexual Penetration of a Parent, Lineal Ancestor or Step-Parent WHAT IS THE PENALTY IMPOSED? Level 6 imprisonment (5 years maximum)

  10. SEXUAL PENETRATION OFA SIBLING OR HALF-SIBLING ELEMENTS: WHEN ISTHEACCUSED GUILTY? 1. The accused intentionally - a. sexually penetrated a person, or b. caused or allowed a person to sexually penetrate him/her (the accused); 2. the person is a sibling or half-sibling of the accused; and 3. the accused knew that the person is his/her sibling or half-sibling. WHAT IS THE LAW? Section 50F of the Crimes Act 1958 - Sexual Penetration of a Sibling or Half-Sibling WHAT IS THE PENALTY IMPOSED? Level 6 imprisonment (5 years maximum)

  11. FORSEXUALCONDUCT WITH A CHILD UNDER16 GROOMING ELEMENTS: WHEN IS THE ACCUSED GUILTY? The accused (A) is 18 years of age or more; the accused communicated, by words or conduct, with: a. a person (P) who is a child under the age of 16 years, or b. a person (G) under whose care, supervision, or authority P is; and 3. the accused intended that the communication facilitate P engaging or being involved in the commission of a sexual offence by A or by another person who is 18 years of age or more. Section 49M of the Crimes Act 1958 - Grooming for Sexual Conduct With a Child Under the Age of 16 WHAT IS THE LAW? WHAT IS THE PENALTY IMPOSED? Level 5 imprisonment (10 years maximum)

  12. / OBSERVATION OF GENITAL OR ANAL REGION UPSKIRTING ELEMENTS: WHEN IS THE ACCUSED GUILTY? The accused used a device to observe a person's genital or anal region; the accused did so intentionally; and the accused did so in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be observed. WHAT IS THE LAW? Section 41A of the Summary Offences Act 1966 - Observation of Genital or Anal Region WHAT IS THE PENALTY IMPOSED? 3 months imprisonment

  13. SEXUAL ASSAULT ELEMENTS: WHEN IS THE ACCUSED GUILTY? The accused intentionally touched another person; the touching was sexual; the person did not consent to the touching; and the accused did not reasonably believe that the person consented to the touching. WHAT IS THE LAW? Section 40 of the Crimes Act 1958 – Sexual Assault WHAT IS THE PENALTY IMPOSED? Level 5 imprisonment (10 years maximum)

  14. CHILD PORNOGRAPHY There are many child pornography offences in Victoria. This presentation will cover only three (3) of them. • POSSESSION OF CHILD ABUSE MATERIAL • PRODUCING CHILD ABUSE MATERIAL • INVOLVING A CHILD IN THE PRODUCTION • OF CHILD ABUSE MATERIAL

  15. POSSESSION OF CHILD ABUSE MATERIAL ELEMENTS: WHEN ISTHEACCUSED GUILTY? The accused possessed child abuse material and the accused knowingly possessed said material. *If the child abuse material is electronic, the accused would be in possession of it if he/she controls access to the electronic material regardless of whether he/she has physical possession of it. It is immaterial if the electronic material was outside Victoria as long as the accused was in Victoria at the time of the offence. It is also immaterial if the accused was outside Victoria at the time of the offence as long as the electronic material was in Victoria. WHAT IS THE LAW? Section 51G of the Crimes Act 1958 – Possession of Child Abuse Material WHAT IS THE PENALTY IMPOSED? Level 5 imprisonment (10 years maximum)

  16. PRODUCING CHILD ABUSE MATERIAL ELEMENTS: WHEN ISTHEACCUSED GUILTY? The accused intentionally produces material; the material is child abuse material; and the accused knows that the material is, or probably is, child abuse material. *The ways in which material is produced may include filming, printing, photographing, recording, writing, drawing or otherwise generating material; or altering or manipulating material; or reproducing or copying material. WHAT IS THE LAW? Section 51C of the Crimes Act 1958 – Producing Child Abuse Material WHAT IS THE PENALTY IMPOSED? Level 5 imprisonment (10 years maximum)

  17. INVOLVING A CHILD IN THE PRODUCTION OF CHILD ABUSE MATERIAL ELEMENTS: WHEN ISTHEACCUSED GUILTY? The accused intentionally involved another person in the production of material; the person was a child; the accused knows that the person is, or probably is, a child; the material was child abuse material; and the accused knew that the material is, or probably is, a child abuse material. *Involving a person in the production of a material may include inviting or encouraging him/her to be involved, or offering him/her to be involved, in the production of the material; or causing or allowing him/her to be involved in the production of the material; or using him/her in the production of the material. WHAT IS THE LAW? Section 51B of the Crimes Act 1958 – Involving a Child in the Production of Child Abuse Material WHAT IS THE PENALTY IMPOSED? Level 5 imprisonment (10 years maximum)

  18. SEXUALPENETRATIONOFACHILD There are three (3) sexual penetration of a child offences in Victoria. • SEXUAL PENETRATION OF A CHILD UNDER THE AGE OF 12 • SEXUAL PENETRATION OF A CHILD UNDER THE AGE OF 16 • SEXUAL PENETRATION OF A CHILD AGED 16 OR 17 UNDER CARE, SUPERVISION OR AUTHORITY

  19. SEXUALPENETRATIONOFACHILD UNDER THE AGE OF 12 ELEMENTS: WHEN ISTHEACCUSED GUILTY? 1. The accused intentionally - a. sexually penetrated a person (B); or b. caused or allowed a person (B) to sexually penetrate him/her (the accused); or c. caused the person (B) - i. to sexually penetrate themselves, or ii. to sexually penetrate another person (C), or iii. to be sexually penetrated by another person (C); and d. the person (B) was a child under the age of 12 years. WHAT IS THE LAW? Section 49A of the Crimes Act 1958 - Sexual Penetration of a Child Under the Age of 12 WHAT IS THE PENALTY IMPOSED? Level 2 imprisonment (25 years maximum)

  20. SEXUALPENETRATIONOFACHILD UNDER THE AGE OF 16 ELEMENTS: WHEN ISTHEACCUSED GUILTY? 1. The accused intentionally - a. sexually penetrated a person (B); or b. caused or allowed a person (B) to sexually penetrate him/her (the accused); or c. caused the person (B) - i. to sexually penetrate themselves, or ii. to sexually penetrate another person (C), or iii. to be sexually penetrated by another person (C); and d. the person (B) was a child under the age of 16 years. WHAT IS THE LAW? Section 49B of the Crimes Act 1958 - Sexual Penetration of a Child Under the Age of 16 WHAT IS THE PENALTY IMPOSED? Level 4 imprisonment (15 years maximum)

  21. SEXUALPENETRATIONOFACHILD AGED 16OR 17 UNDER CARE, SUPERVISION OR AUTHORITY ELEMENTS: WHEN ISTHEACCUSED GUILTY? 1. The accused intentionally - a. sexually penetrated a person (B); or b. caused or allowed a person (B) to sexually penetrate him/her (the accused); or c. caused the person (B) - i. to sexually penetrate themselves, or ii. to sexually penetrate another person (C), or iii. to be sexually penetrated by another person (C); and d. the person (B) was a child aged 16 or 17 years; and e. the person (B) was under the accused’s care, supervision or authority. WHAT IS THE LAW? Section 49C of the Crimes Act 1958 - Sexual Penetration of a Child Aged 16 or 17 Under Care, Supervision or Authority WHAT IS THE PENALTY IMPOSED? Level 5 imprisonment (10 years maximum)

  22. DISTRIBUTIONOFANINTIMATEIMAGE ELEMENTS: WHEN ISTHEACCUSED GUILTY? 1. The accused intentionally distributed an intimate image of a person (B) to another person other than B; and the distribution of the image is contrary to community standards of acceptable conduct; and the person (B) was under the age of 18 years; and the person (B) had not expressly or impliedly consented, or could reasonably be considered to have expressly or impliedly consented, to the distribution of the intimate image and the manner in which the intimate image was distributed. WHAT IS THE LAW? Section 41DA of the Summary Offences Act 1966 - Sexual Penetration of a Child Under the Age of 12 WHAT IS THE PENALTY IMPOSED? Level 2 imprisonment (25 years maximum)

  23. THREAT TO COMMIT ASEXUALOFFENCE ELEMENTS: WHEN ISTHEACCUSED GUILTY? The accused made to another person (B) a threat to rape or sexually assault B or a third person (C); and the accused intended that B will believe, or the accused believed that B will probably believe, that he/she (accused) will carry out the threat. *Words or conduct may constitute a threat if they conveyed an intention to sexually penetrate or sexually touch B or C without their consent; or to cause B or C, without their consent, to sexually penetrate or sexually touch the accused, C or B (as the case requires), themselves, another person (D), or an animal; or to cause B or C, without their consent, to be sexually penetrated or sexually touched by another person or by an animal. WHAT IS THE LAW? Section 43 of the Crimes Act 1958 – Threat to Commit a Sexual Offence WHAT IS THE PENALTY IMPOSED? Level 6 imprisonment (5 years maximum)

  24. VISUALLYCAPTURING GENITAL OR ANAL REGION ELEMENTS: WHEN IS THE ACCUSED GUILTY? The accused visually captured a person's genital or anal region; and the act was intentional; and the act was committed in circumstances in which it would be reasonable for the other person to expect that his or her genital or anal region could not be visually captured. WHAT IS THE LAW? Section 41B of the Summary Offences Act 1966 – Visually Capturing Genital or Anal Region WHAT IS THE PENALTY IMPOSED? 2 years imprisonment

  25. ASSAULTWITH INTENT TO COMMIT A SEXUAL OFFENCE ELEMENTS: WHEN ISTHEACCUSED GUILTY? The accused intentionally applied force to another person; and the person did not consent to the application of that force; and at the time of applying the force, the accused intended for the person to take part in a sex act; and The accused did not reasonably believe that the person would consent to taking part in the sex act. *The accused may commit this offence even if the person was not aware of the application of force by the accused. The force may be applied directly or indirectly; or to the body, clothing, or equipment worn by the person. WHAT IS THE LAW? Section 42 of the Crimes Act 1958 – Assault with Intent to Commit a Sexual Offence WHAT IS THE PENALTY IMPOSED? Level 4 imprisonment (15 years maximum)

  26. SEXUALACTIVITY IN THE PRESENCE OF A CHILD UNDER THE AGE OF 16 ELEMENTS: WHEN ISTHEACCUSED GUILTY? The accused intentionally engaged in a sexual activity; and 2. another person was present when the accused engaged in the sexual activity; and the accused knew that the person was, or probably was, present when he/she engaged in the activity; and 4. the person was a child under the age of 16 years; and engaging in the activity in the presence of the person was contrary to community standards of acceptable conduct. *Engaging in a sexual activity may be committed by means of an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000 that is received by a person in real time or close to real time. WHAT IS THE LAW? Section 49F of the Crimes Act 1958 - Sexual Activity in the Presence of a Child Under the Age of 16 WHAT IS THE PENALTY IMPOSED? Level 5 imprisonment (10 years maximum)

  27. There are many other sexual offences that may be filed against a person in the state of Victoria. If you have been charged, it is crucial that you contact a lawyer immediately. Sexual crimes are very serious offences that carry heavy penalties upon conviction, including the possibility of being placed on the Sex Offender Register for years. A lawyer will ensure that you get a fair trial in court and that your rights as a defendant are upheld throughout the course of any police and legal investigation.

  28. Want to know more about the laws on sexual offences in Victoria, Australia? Check out the following legal websites: Furstenberg Law Australasian Legal Information Institute References used in creating this presentation

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