Sexual offences
TRIGGER WARNING: Please note that this chapter (and pages it links to) contains information about sexual assault and violence that may be triggering to victim/survivors.
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There are two offences for rape under sections 38 and 39 of the Crimes Act: rape and rape by compelling sexual penetration.
A person commits rape if they intentionally sexually penetrate another person, without the other person’s consent and they do not reasonably believe that the other person consented to the penetration.
A person commits a compelled rape when they intentionally cause another person to sexually penetrate them, another person or themselves without the person’s consent and they do not reasonably believe that the person consented to the penetration. (See ‘Consent’, above.) A person also commits an offence if they cause another person to sexually penetrate an animal or be sexually penetrated by an animal.
A person sexually penetrates another or themselves when they introduce a part of their body or an object into the mouth, anus or vagina of another person or themself (Crimes Act s 35A Act).
Rape includes ‘stealthing’ which is when a person intentionally removes the condom or tampers with the condom during sexual intercourse.
Each of these crimes is punishable by up to 25 years’ imprisonment.
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There are two offences for sexual assault under sections 40 and 41 of the Crimes Act: sexual assault and sexual assault by compelling touching.
A person commits a sexual assault if they intentionally sexually touch another person, without the other person’s consent, and they do not reasonably believe that the other person consented to the touching. A person commits a compelled sexual assault when they intentionally cause another person to sexually touch another without the person’s consent and they do not reasonably believe that the person consented to the touching. (See ‘Consent’, above.)
Each of these crimes is punishable by up to 10 years’ imprisonment.
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Intentionally engaging in sexual activity involving a human corpse is an offence (Crimes Act s 34B). This crime is punishable by up to five years’ imprisonment.
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A person commits bestiality when they penetrate an animal’s anus or vagina, or they allow an animal to penetrate their anus or vagina (Crimes Act s 54A). This crime is punishable by up to five years’ imprisonment.
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Female genital cutting (also called female circumcision and female genital mutilation) is defined in the Crimes Act (s 15). It is an offence to perform female genital cutting (Crimes Act s 32). It is an offence to take a person, or arrange for a person to be taken, out of Victoria with the intention of having female genital cutting performed on them (Crimes Act s 33). Each of these crimes is punishable by up to 15 years’ imprisonment.
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Under the Crimes Act (s 42), a person commits this offence if they intentionally apply force to another person for the purpose of making them take part in a sexual act they do not consent to. This crime is punishable by up to 15 years’ imprisonment. (See ss 42(3A)–(3D); see ‘Consent’, above.)
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Under section 43 of the Crimes Act, a person commits this offence if they threaten to rape or sexually assault a person. This crime is punishable by up to five years’ imprisonment.
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Under section 44 of the Crimes Act, a person commits this offence if they force someone to take part in a sexual act with them, or with another person, by threatening to harm them or another person if they do not comply. This crime is punishable by up to 10 years’ imprisonment.
Under section 45 of the Crimes Act, it is an offence for a person to force someone to take part in a sexual act with them, or with another person, by making false or misleading representations. Representations can be actions or words. This crime is punishable by up to five years’ imprisonment.
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Just because a person voluntarily drinks alcohol or takes drugs does not mean that they are in any way responsible for a sexual assault happening to them. You cannot consent if you are unconscious or overwhelmingly affected by drugs and/or alcohol.
Under section 46 of the Crimes Act, a person commits this offence if they administer an intoxicating substance, or they cause an intoxicating substance to be taken, with the intention of impairing that person’s capacity to give or withdraw consent to take part in a sexual act. (See ‘Consent’, above.)
An ‘intoxicating substance’ is any substance that affects a person’s senses or understanding (i.e. drugs or alcohol). This crime is punishable by up to 10 years’ imprisonment.
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Under section 19 of the Summary Offences Act 1966 (Vic) (‘SO Act’), it is an offence for a person to intentionally expose their genitals, this exposure is sexual and within view of a public place. This crime is punishable by up to two years’ imprisonment.
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Image-based sexual offences include the distribution, production and threat to distribute or produce intimate images – including intimate images that are generated or altered.
The Crimes Act (s 53O) includes the following definitions in relation to image-based sexual offences.
‘Intimate image’ means an image depicting:
a person engaged in a sexual activity; or
a person in a manner or context that is sexual; or
the genital or anal region of a person (whether bare or covered by underwear); or
if a person is female, or a transgender or intersex person identifying as female, the breasts of the person.
‘Distribute’, in relation to an image, includes:
publishing the image; and
exhibiting, communicating, sending, supplying or transmitting the image to any other person; and
making the image available for access by any other person; and
electronic material includes data from which images may be generated.
‘Produce’, in relation to an image, means filming, recording, taking or otherwise capturing the image, or digitally creating the image.
An ‘image’ may be:
still, moving, recorded or unrecorded; and
digitally created by:
generating the image; or
altering or manipulating another image.
This broad definition includes ‘live-streaming’. It also includes the production of ‘deepfake’ images. ‘Deepfake pornography’ refers to images that have been digitally generated, altered, or manipulated to appear to be intimate images of a person.
Consent (see Crimes Act s 53P) in relation to image-based section offences is consistent with the definition in section 36 set out above. A person’s consent to one action in relation to an intimate image does not, by itself, constitute consent to another action in relation to that image or another image. For example, consenting to a photograph being taken but not a video being recorded. Section 53Q of the Crimes Act sets out a non-exhaustive list of circumstances where a person does not consent to the production or distribution of an intimate image, this adapts section 36AA of the Crimes Act (set out above).
For an image-based sexual offence to occur, a person has to know that the image is, or probably is, an intimate image and the production of the intimate image is contrary to community standards of acceptable conduct.
Image-based sexual offences include:
producing an intimate image (Crimes Act s 53R); for example, live-streaming footage from a hidden camera or digitally putting another person’s face onto a photograph of a naked person; this crime is punishable by up to three years’ imprisonment;
distributing an intimate image (Crimes Act s 53S); for example, posting a picture of someone engaged in a sexual act on social media without their permission or sending a picture of someone’s genitals to another person without their consent; this crime is punishable by up to three years’ imprisonment.
This is not an offence if:
the person depicted is not a child; and
at the time of the production or distribution, they consented to the production or distribution and how the intimate image was produced or distributed; and
the intimate image had been distributed previously to a place to which members of the public had access; and
the person was of the reasonable belief that they consented to this previous distribution;
in all the circumstances, a reasonable person would believe that they consented to the current distribution.
A threat to distribute an intimate image (Crimes Act s 53T) may be made by words or conduct or be explicit or implicit. This crime is punishable by up to three years’ imprisonment.
It is not a defence to the above offences if, at the time of the conduct, a person was under a mistaken but honest and reasonable belief that the production or distribution of the intimate image was not contrary to community standards of acceptable conduct (see Crimes Act s 53V). Whether the production or distribution of an intimate image is contrary to community standards of acceptable conduct depends on the circumstances (see Crimes Act s 53U). Circumstances include:
the nature and content of the intimate image;
the circumstances in which the intimate image was produced or distributed;
the age, intellectual capacity, vulnerability, or other relevant circumstances of a person depicted in the intimate image; and
the degree to which the production or distribution of the intimate image affects the privacy of a person depicted in the intimate image.
If the person who committed one of the above offences was under the age of 16 years at the time, the Director of Public Prosecutions must consent to the prosecution (see Crimes Act s 53W).
Sections 53X–53ZA of the Crimes Act create an intimate image disposal order scheme that is similar to the child abuse material disposal order scheme contained in sections 51W–51Y of the Crimes Act.
Behaviour related to image-based sexual offences could also be punishable under section 474.17 of the Criminal Code. Under this Act, it is an offence to use a carriage service to menace, harass or cause offence. ‘Carriage service’ is defined in the Telecommunications Act 1997 (Cth); a carriage service includes most electronic communication (e.g. social media, texting, emails). This crime is punishable by up to three years’ imprisonment. On 2 September 2024, the Criminal Code Amendment (Deepfake Sexual Material) Act 2024 (Cth) received royal assent. This Act amended the Criminal Code, introducing a new offence for the transmission of sexual material relating to persons who are, or appear to be, over the age of 18, without consent (including deepfakes). Under this Act, it is now an offence to use a carriage service to transmit sexual material without consent (s 474.17A). An offence under section 474.17A will be punishable by a maximum penalty of six years’ imprisonment. It is also now an aggravated offence under this Act for a person to transmit sexual material without consent after certain civil penalty orders are made (s 474.17AA). Civil penalty orders are made against a person pursuant to the Online Safety Act 2021 (Cth). As offence under section 474.17AA will be punishable by a maximum penalty of seven years’ imprisonment.
There is also an offence in the SO Act: intentionally observing a person’s genital or anal region with a device (s 41A); this crime is punishable by up to three months’ imprisonment.
Many people do not report image-based sexual offences because they are embarrassed and scared.
If any of this behaviour has occurred with someone you have had an intimate relationship with, the behaviour could also be considered to be family violence (see Chapter 4.4: Family violence).
If you need support or help in relation to image-based sexual offences, see the services listed at the end of this chapter.
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Under the Crimes Act (s 47), a person commits this offence if they take, or cause someone to take, a person away or detain them without their consent. This is done with the intention that the person will take part in a sexual act with them or another person. This crime is punishable by up to 10 years’ imprisonment.
Offences involving commercial sexual services
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Sections 53B, 53C, 53D and 53E set out offences in relation to inducing, forcing or threatening another person to provide commercial sexual services – see Chapter 3.4: Sex Work for more information.
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Under section 50C and 50D of the Crimes Act, a person commits incest if they take part in an act of sexual penetration with someone they know to be their child, step-child or other lineal descendant, or their de facto partner’s child, step-child or other lineal descendant who is under the age of 18. This crime is punishable by up to 25 years’ imprisonment for each offence.
Under section 50E of the Crimes Act, a person commits incest if they take part in an act of sexual penetration with someone who is over the age of 18, who they know to be their father, mother, other lineal ancestor, step-father or step-mother. This crime is punishable by up to five years’ imprisonment.
‘Lineal ancestor’ and ‘lineal descendant’ are defined in section 50A of the Crimes Act.
An exception to the offences in section 50D and 50E of the Crimes Act is if one of the people is a step-parent and at no point has the other person spent any time under their authority, care or supervision, and at the time of the act, they were at least 18 years (see Crimes Act s 50J).
Under section 50F of the Crimes Act, a person commits incest if they take part in an act of sexual penetration with someone who they know to be their sister, half-sister, brother or half-brother. This crime is punishable by up to five years’ imprisonment.
If you are compelled by force or otherwise to engage in incest without your consent, you are not guilty of an offence (see Crimes Act s 50H).
You cannot consent to incest (see Crimes Act s 50K). For more information about consent, see ‘Consent’, above.
Sexual offences
Chapter: 3.3: Sexual offences
Contributor: Suzan Gencay, Family Violence and Victims Legal Service Coordinator, South-East Monash Legal Service
Current as of: 2 September 2024
Law Handbook Page: 136
Next Section: Sexual offences against children
