Crimes involving sexual penetration can lead to severe sentences, but defences can be raised
A number of separate offences in Victoria fall under the general heading of sexual assault. This article describes offences involving sexual penetration and the defences that can be raised by a person who is accused of committing those crimes.
Rape is the sexual penetration of another person without that person’s consent and:
The penalty for rape is imprisonment for not more than 25 years.
Potential defences to a rape include:
No rape occurred and the alleged victim is deliberately making a false accusation.
If you are accused of rape, you should ask a lawyer whether any of these defences can be raised in your case.
Sexual penetration of a child differs from rape because consent is not a defence. The offence merely requires proof of sexual penetration. If the child did not consent, a charge of rape can be lodged.
If the accusation involves a child of 16 or 17, the crime can only be committed by someone who is not the child’s spouse and who has a position of supervision or authority over the child, including a foster parent, a teacher, a coach, a doctor, and others with a similar responsibility for the child’s care. The penalty for the offence is imprisonment for not more than 10 years.
If a child is under the age of 16 and not married to the accused, any sexual penetration of the child is a crime. The maximum sentence for the offence is:
10 years in all other cases.
Potential defences to sexual penetration of a child include:
A reasonable belief that the child is 18 (if the child is 16 or 17).
A reasonable belief that the child is 18 (if the child is 15 or younger and the accused is not more than 2 years older than the child).