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CRIMINAL LAW

Understanding Sexual Penetration Offences in Victoria

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

Rape is the sexual penetration of another person without that person’s consent and:

  • with the knowledge that the other person is not or might not be consenting, or
  • without giving any thought to whether the other person is consenting, or
  • without withdrawing after realizing that the person is not or might not be consenting.
  • Compelling another person (by force or otherwise) to penetrate the accused or another person is also a rape.

Penalty

The penalty for rape is imprisonment for not more than 25 years.

Defences

Potential defences to a rape include:

  • The alleged victim consented.
  • The accused believed the alleged victim consented.
  • Penetration did not occur.
  • The victim is mistaken about the rapist’s identity.

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

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.

Child of 16 or 17

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.

Child under the age of 16

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:

  • 25 years if the child was under the age of 10;
  • 15 years if the child was at least age 10 but under the age of 16, if the accused had a position of supervision or authority regarding the child;

10 years in all other cases.

Defences

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).

  • Penetration did not occur.
  • Mistaken identity.
  • The child is deliberately making a false accusation.

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