Sexual offences

There are two offences for rape under sections 38 and 39 of the Crimes Act 1958 (Vic) (‘Crimes Act’):

• rape;
• 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 another without the person’s consent and they do not reasonably believe that the person consented to the penetration. (See ‘Consent’.)

A person sexually penetrates another when they introduce a part of their body or an object into the mouth, anus or vagina of another person.

Rape may include stealthing, which is when one person removes their condom during sexual intercourse without the other person’s consent or knowledge (see DPP v Yeong (a pseudonym) [2022] VSCA 179).

Each of these crimes is punishable by up to 25 years’ imprisonment.

There are two offences for sexual assault under sections 40 and 41 of the Crimes Act:

• sexual assault;
• 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’.)

Each of these crimes is punishable by up to 10 years’ imprisonment.

Intentionally engaging in sexual activity involving a human corpse is an offence (s 34B Crimes Act).

This crime is punishable by up to five years’ imprisonment.

A person commits bestiality when they penetrate an animal’s anus or vagina, or they allow an animal to penetrate their anus or vagina (s 54A Crimes Act).

This crime is punishable by up to five years’ imprisonment.

Female genital mutilation (also called female circumcision and female cutting) is defined in the Crimes Act (s 15).

It is an offence to:

• perform female genital mutilation (s 32 Crimes Act);
• take a person, or arrange for a person to be taken, out of Victoria with the intention of having female genital mutilation performed on them (s 33 Crimes Act).

Each of these crimes is punishable by up to 15 years’ imprisonment.

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 that they would not consent to.

This crime is punishable by up to 15 years’ imprisonment.

Consent depends on the circumstances; however, a person’s belief in consent is not reasonable if they have not said or done anything to find out whether the other person consents to the sexual act. If a person has a cognitive impairment or mental illness that is a substantial cause of them failing to say or do anything to find out if a person consents, they must provide proof on the balance of probabilities.

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.

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.

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’.) 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. 

Under section 19 of the Summary Offences Act 1966 (Vic), it is an offence for a person to intentionally expose their genitals within view of a public place.

This crime is punishable by up to two years’ imprisonment.

The Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (Vic) amendments relocate image-based sexual offences from the Summary Offences Act 1966 (Vic) to the Crimes Act, making them indictable (serious) offences.

The Crimes Act (s 53O) now includes definitions that were previously included in the Summary Offences Act 1966 (Vic).

‘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.

‘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.

‘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 (false images that have been created digitally). ‘Deepfake pornography‘ refers to images that have been digitally generated, altered, or manipulated to appear to be intimate images of a person.

Consent (see s 53P Crimes Act) 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 (s 53R Crimes Act); 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 (s 53S Crimes Act); 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 isn’t 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, and
• in all the circumstances, a reasonable person would believe that they consented to the current distribution.

A threat to distribute an intimate image (s 53T Crimes Act) 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 s 53V Crimes Act). Whether the production or distribution of an intimate image is contrary to community standards of acceptable conduct depends on the circumstances (see s 53U Crimes Act).

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;
• 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 s 53W Crimes Act).

Sections 53X–53ZA if 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 Act 1995 (Cth). 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.

One related offence remains in the Summary Offences Act 1966 (Vic):  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 you need support or help in relation to image-based sexual offences, see the services listed at the end of this chapter.

Under the Crimes Act (s 47), a person commits this offence if they take, or cause someone to take, a person away/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.

What is sexual servitude?

Under the Crimes Act (s 53B), a person commits the offence of sexual servitude if they cause someone to provide, or continue to provide, commercial sexual services, and:

• they do this by using force, threats, unlawful detention, fraud or an excessive debt; or
• they know, or are reckless as to whether this person is free to stop providing commercial sexual services because of the use of force, threats, unlawful detention, fraud or an excessive debt. 

Under the Crimes Act (s 53D), a person commits the offence of sexual servitude if:

• they conduct a business that provides sexual services; and
• the person providing sexual services is not free to stop providing those services because of the use of force, threats, unlawful detention, fraud or a manifestly excessive debt.

‘Conducting a business’ includes taking part in the management of the business, exercising control of the business, or providing finance for the business.

Each of these crimes is punishable by up to 15 years’ imprisonment.

Commercial sexual services involving sexual servitude

Under the Crimes Act (s 53C), a person commits the offence of causing another person to provide commercial sexual services in circumstances involving sexual servitude if:

• they cause a person to provide, or continue to provide, commercial sexual service; and
• they do this by using force, threats, unlawful detention, fraud or an excessive debt; or
• they know that this will probably cause the person to continue providing commercial sexual services, or not be free to leave the place where they provide sexual services.

This crime is punishable by up to 15 years’ imprisonment.

Aggravated sexual servitude

Under the Crimes Act (s 53E), a person is guilty of aggravated sexual servitude if they have committed any of the offences listed above to a person under the age of 18 years, where the offender intended to commit the offence against a person of that age. This crime is punishable by up to 20 years’ imprisonment.

Deceptive recruiting for commercial sexual services

Under the Crimes Act (s 53F), a person commits the offence of deceptively recruiting for commercial sexual services if they intend to induce another person to enter into an engagement to provide commercial sexual services and they deceive that person about the engagement involving the provision of sexual services. This crime is punishable by up to five years’ imprisonment.

Aggravated deceptive recruiting for commercial sexual services

A person commits the offence of aggravated deceptive recruiting for commercial sexual services if they commit the above to a person under the age of 18 years, and they intended to commit the offence against a person of that age (s 53G Crimes Act). This crime is punishable by up to 10 years’ imprisonment.

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 ‘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 s 50J Crimes Act).

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 s 50H Crimes Act).

You cannot consent to incest (see s 50K Crimes Act). For more information about consent, see ‘Consent’.