The Law Handbook 2024

Chapter 3.3: Sexual offences 163 Exceptions Under the Crimes Act, the above sexual offences against people with a cognitive impairment or mental illness are not offences: a if sexual penetration occurs during a procedure carried out in good faith for medical or hygienic purposes (s 52F Crimes Act); b if, at the time of the act, the person was married to, or reasonably believed they were married to, the person with a cognitive impairment or mental illness and this marriage is recognised as valid under the Marriage Act; or the couple are domestic partners (s 52G, 52H Crimes Act); c if, at the time, the person reasonably believed that the other person did not have a cognitive impairment or mental illness (s 52I Crimes Act). Making a mistake is not a defence to sexual offences against people with a cognitive impairment or mental illness. For more information, see section 52K of the Crimes Act. Sexual harassment What is sexual harassment? Sexual harassment is unlawful under both Victorian and Commonwealth law. In section 92 of the Equal Opportunity Act 2010 (Vic) (‘ EO Act ’), ‘sexual harassment’ is defined as behaviour such as unwelcome sexual advances, unwelcome requests for sexual favours, and unwelcome conduct of a sexual nature that would make a person feel offended, humiliated or intimidated. This can be done physically, verbally or in writing, and either in front of a person or about them to others. Kinds of sexual harassment are listed in sections 93 to 102 of the EO Act and in sections 28B to 28L of the Sex Discrimination Act 1984 (Cth). Sexual harassment can occur: • at work; • in industrial organisations (e.g. unions); • in professional organisations; • in schools; • in clubs (e.g. social, literary, cultural, political, sporting, athletic); • in providing accommodation; • in local government (e.g. local council); • in providing goods or services. What can you do about sexual harassment? If you feel safe, you can approach the management of the organisation to make a complaint about how this behaviour is affecting you, making it clear that it is making you feel offended, humiliated or intimidated. If you have been sexually harassed, you can complain to the Victorian Equal Opportunity and Human Rights Commission (see ‘Contacts’ at the end of this chapter) or the Australian Human Rights Commission (www.humanrights.gov.au) . If you are being sexually harassed at work, you may also be subject to workplace bullying. For more information about workplace bullying, see Chapter 11.7: Occupational health and safety. If appropriate you could attempt to mediate the issues through the Dispute Settlement Centre of Victoria (www.disputes.vic.gov.au) . If the person who is sexually harassing you is a family member, or a partner (either a current or former partner), you can apply for a family violence intervention order. If the person who is sexually harassing you is not a family member or a partner, you can apply for a personal safety intervention order. To apply for these orders see www.mcv.vic.gov.au/ intervention-orders/personal-safety-intervention- orders/applying-intervention-order-psio and www. mcv.vic.gov.au/intervention-orders/family-violence- intervention-orders/applying-intervention-order- fvio , or visit your local Magistrates’ Court (to find your nearest court, visit www.mcv.vic.gov.au/going- court/find-court) . For more information about family violence and personal safety, see Chapter 4.4: Family violence. Reporting a sexual offence Many people do not report sexual assaults to the police. There is no time limit for reporting a sexual assault; some people come forward years later. However, the sooner you report a crime, the easier it may be for the police to investigate and find evidence to support your case.