Sexual Offences Lawyer Melbourne

Sexual offences include a range of behaviours that are crimes because they involve non-consensual or coercive sexual activity, or because they exploit or abuse another person in a sexual manner.

Examples of sexual offences include rape, sexual penetration of a child under the age of 16, sexual assault, and sexual grooming of a child. In Victoria, the law relating to sexual offences is contained in the Crimes Act 1958 and the Summary Offences Act 1966.

Commonwealth law also applies in Victoria. Commonwealth law relating to sexual offences is contained in the Criminal Code Act 1995. Examples of Commonwealth sexual offences include access, possession, and transmission of child abuse material (formerly called ‘child pornography’) and using a carriage service to engage in sexual activity with, or procure for sexual activity, a person under 16 years of age.

Another area of Commonwealth sexual offences includes crimes against humanity such as sexual slavery and enforced prostitution. These offences are also contained in the Criminal Code Act 1995.

If you have been accused of a sexual offence, it is critical to seek the guidance of a skilled sexual offences lawyer. The law in this area has undergone numerous changes in recent years, making it complex. Elizabeth has the expertise and experience to defend you and achieve the best possible outcome from the beginning of your case.

The process usually begins with a formal interview with police, which is recorded and can be used as evidence. The interview can be with Victoria Police or the Australian Federal Police (AFP). It is essential to have proper legal advice, management, and a strategy in place before this stage, or, if that is not possible, to contact a sexual offence lawyer before the police interview begins. Take this opportunity to protect your rights and ensure the best possible outcome. After the interview, the police investigation may continue, or charges may be filed initiating the court process.

If a person is charged with a sexual offence in Victoria, they may be tried in a criminal court and, if found guilty, may face fines, community correction orders, or imprisonment. The penalties can be serious. The terms of imprisonment imposed by the courts are often high. For example, the charge of rape carries with it a maximum term of 25 years’ imprisonment.

It is important to remember that everyone is innocent until proven guilty, and that it is the responsibility of the Prosecution to prove that a crime has been committed beyond reasonable doubt. Defending charges of sexual offending is difficult and technical. Defending sexual offences is a specialised area. Seek legal advice from Elizabeth as soon as possible if you have been charged with a sexual offence. Time is important, and the loss of time can adversely impact the outcome of your criminal case.

Historical Sexual Offending

In Victoria, an accused can also be charged for ‘historical sexual offending’. This refers to sexual offences that were committed in the past but are only being reported or prosecuted at a later date. These offences can include a range of conduct, such as rape, sexual assault, indecent assault, or incest.

There is no limitation on the time that can pass to report and prosecute a criminal indicatable offence. This means that you could be charged for a sexual offence that was committed in the past, regardless of how much time has passed. Effectively, there is no time limit in Victorian law for making a complaint to police of sexual offending.

In order to prosecute a person for a historical sexual offence, the Prosecution must prove ‘beyond reasonable doubt’ that the offence occurred and that the accused person committed it. This can be challenging in cases of historical sexual offending, as there may be limited physical evidence, or even no physical evidence, and the passage of time can make it difficult to gather witness statements or other important pieces of evidence to assist the accused person with their defence.

It is also important to remember that everyone is innocent until proven guilty, and that it is the responsibility of the Prosecution to prove that a crime has been committed beyond reasonable doubt. Historical sexual offences can be difficult and technical to defend. Do not hesitate to contact Elizabeth McKinnon to assist you if you have been charged with a historical sexual offence.

The consequences of a criminal record can change your life. It is critical that you engage an expert in criminal law, particularly an expert in sex cases. Elizabeth specialises in defending people charged with sexual offending.

Rape

Rape is a serious crime that involves the sexual penetration of another person without their consent. Sexual penetration can include any activity that involves the insertion of a body part or object into the vagina, anus, or mouth of another person.

Under the Crimes Act 1958, it is an offence to rape another person or to be an accomplice in the rape of another person. The maximum penalty for rape in Victoria is 25 years’ imprisonment.

The elements of the offence of rape are set out in section 38 of the Crimes Act 1958. In order for a person to be found guilty of rape, the Prosecution must prove each of the following elements beyond reasonable doubt:

  • The accused sexually penetrated the victim’s vagina, anus, or mouth with their penis or another object;
  • The person being sexually penetrated did not consent; and
  • The accused did not reasonably believe that the person being penetrated consented to the sexual penetration.

It’s important to note that a person can be found guilty of rape even if the victim did not physically resist the sexual activity. The lack of physical resistance does not necessarily mean that the victim consented to the sexual activity. It is not uncommon for a victim to ‘freeze’ during non-consensual sexual activity.

Consent is an important element of the crime of rape. The definition of consent and the circumstances in which it can be given are set out in section 36 of the Crimes Act 1958.

The law in Victoria states that a person does not give consent if:

  • They are unconscious or asleep;
  • They are so affected by alcohol or another drug as to be incapable of consenting to the act;
  • They are so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;
  • They are not capable of understanding the sexual nature of the act;
  • They are not capable of freely and voluntarily agreeing to the sexual activity;
  • They are threatened, or under duress or coercion;
  • They are mistaken about the nature or purpose of the sexual activity; or
  • They are mistaken about the identity of the other person.

It is also important to note that a person cannot give consent to sexual activity if they are under the age of 16, as this is the age of consent in Victoria. Note, there is an exception to this where the accused was in a position of care, supervision, or authority with the victim. For that particular criminal charge the age of the victim is under 18 years.

It is the responsibility of the person initiating the sexual activity to ensure that they have obtained the other person’s consent.

Rape is a very serious charge that can be difficult to defend. Rape cases are highly technical. Elizabeth McKinnon is very experienced in defending rape charges.  If you have been charged with rape, contact Elizabeth now to seek advice and legal representation. The consequences of a criminal record can change your life. It is critical that you engage an expert in criminal law, particularly an expert in sex cases.

Sexual Assault

In Victoria, sexual assault is an offence under section 40 of the Crimes Act 1958. It covers any intentional non-consensual sexual act, other than sexual penetration, that is committed against a person’s will.

Examples of sexual assault include:

  • Touching a person’s genitals, anus or breasts without their consent;
  • Kissing a person without their consent;
  • Forcing a person to touch someone else’s genitals or breasts; or
  • Touching a person’s buttock.

In order for a person to be found guilty of sexual assault, the Prosecution must prove each of the following elements beyond reasonable doubt:

  • The accused intentionally touched the other person (known as the complainant);
  • The touching was sexual;
  • The person being touched did not consent to the touching; and
  • The accused did not reasonably believe that the other person consented to the touching.

Touching can be ‘sexual’ because of the area of the body that was touched, or used in the touching, or because the accused sought to be, or was sexually aroused or sexually gratified by the touching.

Consent is an important element of the crime of sexual assault. In order for consent to be valid, it must be freely given, voluntary, and ongoing. A person cannot give consent if they are asleep, unconscious, intoxicated, or otherwise unable to communicate their agreement.

It is also considered a crime to have sexual contact with someone who is under the age of consent, which is 16 years old in Victoria.

It is important to note that an accused can be found guilty of sexual assault even if the other person did not physically resist the sexual act. The lack of physical resistance does not necessarily mean that the victim consented to the sexual act.

Sexual assault is a serious crime in Victoria. The maximum penalty for sexual assault is 10 years’ imprisonment.

If you have been charged with sexual assault, it is important that you contact Elizabeth McKinnon as soon as possible to receive proper legal advice and representation. The consequences of a criminal record can change your life. It is critical that you engage an expert in criminal law, particularly an expert in sex cases.

Sexual Penetration of a Child

Sexual Penetration of a Child is a very serious charge. Unlike the charge of Rape, the charge of Sexual Penetration of a Child does not require the consent of the child (the ‘complainant’). Therefore, it is irrelevant if the child provided consent. In Victorian law, a child under 16 years of age is not capable of providing consent.

When a person is charged with Sexual Penetration of a Child, the charge will specifically state ‘Sexual Penetration of a Child under 16’.

Sexual Penetration can include any activity that involves the insertion of a body part (for example a penis or a finger) or an object into the vagina, anus, or mouth of another person.

Under the Crimes Act 1958, section 49B(1), it is an offence to sexually penetrate a child under 16. The maximum penalty for Sexual Penetration of a child under 16 in Victoria is 15 years’ imprisonment.

The elements of the offence of Sexual Penetration of a Child under 16 are set out in section 49B(1) of the Crimes Act 1958. In order for a person to be found guilty of this charge, the Prosecution must prove each of the following elements beyond reasonable doubt:

  • The accused intentionally:
    • sexually penetrated the child; or
    • caused or allowed the child to sexually penetrate the accused; or
    • caused the child to sexually penetrate themselves, another person or be sexually penetrated by another person; and
  • The child was under the age of 16.


The Crimes Act 1958 provides defences to this charge.
The following is a defence to this charge:

  • The accused was not more than 2 years older than the child; and
  • The child was 12 years of age or more; and
  • The child consented to the sexual penetration.


Another defence is a ‘reasonable belief’ as to age of the child:

  • The child was 12 years of age or more; and
  • The accused reasonably believed that the child was 16 years of age or more.

In relation to this defence, the accused must prove on the balance of probabilities that he or she reasonably believed that the child was 16 years of age or more. This will depend on the circumstances surrounding the allegation and what steps the accused took to find out the age of the child.

The Crimes Act 1958 has a more serious charge of Sexual Penetration of a Child, and that is Sexual Penetration of a Child under 12. 

Under the Crimes Act 1958, section 49A(1), it is an offence to sexually penetrate a child under the age of 12. The maximum penalty for Sexual Penetration of a Child under 12 in Victoria is 25 years’ imprisonment.

The elements of the offence of sexual penetration of a child under 12 are set out in section 49A(1) of the Crimes Act 1958. In order for a person to be found guilty of this charge, the Prosecution must prove each of the following elements beyond reasonable doubt:

  • The accused intentionally
    • sexually penetrated the child; or
    • caused or allowed the child to sexually penetrate the accused; or
    • caused the child to sexually penetrate themselves, another person or be sexually penetrated by another person; and
  • The child was under the age of 12.

  

Sexual Penetration of a Child is a serious charge that can be difficult to defend. These cases are highly technical. This area of law has changed over the years. A lot may depend on when the police allege the sexual penetration of the child occurred. For example, is it alleged that the sexual penetration of the child occurred 10 years ago, 15 years ago or 20 years ago? If the allegations involve ‘historical offending’, the former laws were not identical to the laws for this conduct today.

Elizabeth is highly experienced in defending charges involving the sexual penetration of a child. If you have been charged with the Sexual Penetration of a Child contact Elizabeth now to seek advice and legal representation. The consequences of a criminal record can change your life. It is critical that you engage an expert in criminal law, particularly an expert in sex cases.

Child Abuse Material (Formally known as 'Child Pornography')

Under the Crimes Act 1958, it is an offence to produce, distribute, possess, or access child abuse material, previously known as child pornography. Child abuse material is defined as any material that depicts a person who is, or appears to be, under the age of 18 years, engaged in sexual activity or depicted in an indecent sexual manner or context. This includes images, videos, and other forms of media. Child abuse material can even be in the form of words, illustrations, or cartoons. Offences involving child abuse material are dealt with very seriously by the Courts. The maximum penalty for these offences is 10 years’ imprisonment.

It is also an offence in Victoria to assist a person to avoid apprehension in relation to offending involving child abuse material. For example, providing information to someone about how to use a website to deal with child abuse material anonymously or how to encrypt electronic material containing child abuse material. Another example is providing information to someone about how to delete electronic material that records information about that person’s identity. The maximum penalty for this offence is 10 years’ imprisonment.

Commonwealth law also applies in Victoria. Commonwealth law relating to child abuse material is contained in the Criminal Code Act 1995. Under this Act, it is also an offence to use the internet or other electronic means to transmit or publish child pornography. The maximum penalty for this offence is 15 years’ imprisonment.

There are defences in both Victorian and Commonwealth law to charges involving child abuse material, however the defences are very limited. It is important to note that it is not a defence to claim that you did not know the age of the person depicted in the material. Further, ignorance of the law, is not a defence to crimes relating to child abuse material. If you are charged with any offence relating to child abuse material, call Elizabeth McKinnon and she can discuss the potential defences available to you.

Offending relating to child abuse material is taken very seriously by the Courts in Australia. If you have been charged with this kind of offending, do not wait to contact Elizabeth for advice. The consequences of a criminal record can change your life. It is critical that you engage an expert in criminal law, particularly an expert in sex cases.

Grooming

In Victoria, it is an offence for a person to engage in conduct with the intention of procuring a child under the age of 16 for sexual activity or exploitation. This practise is known as ‘grooming’. The charge is called ‘Grooming for Sexual Conduct with a Child under the age of 16’. Grooming can involve a range of activities, including communication with a child online or in person, the provision of gifts or other rewards, and the creation of a relationship of trust with a child.

Under the Crimes Act 1958, it is an offence to groom a child under the age of 16 years for sexual activity or exploitation. The maximum penalty for this offence is 10 years’ imprisonment.

The relevant law is set out in section 49M of the Crimes Act 1958. In order for a person to be found guilty of grooming, the prosecution must prove each of the following elements beyond reasonable doubt:

  • The accused person is aged 18 years or more;
  • The accused communicated by words or conduct (whether or not a response was made to the communication)
    • The communication or conduct was with a child under the age of 16; or
    • The communication or conduct was with someone with the care, supervision or authority over the child; and
  • The accused intended the communication to facilitate the child to engage or be involved in the commission of a sexual offence.


It is important to note that grooming conduct can include any form of communication, including in-person communication, communication via the internet, or communication via phone or other electronic means.

The Commonwealth law also has similar legislation to the law in Victoria regarding this type of conduct. The Commonwealth law regarding grooming is in the Criminal Code Act 1995. It states that it is a criminal offence to use the internet or other electronic means to groom a child or young person under the age of 16 years for sexual activity or exploitation. The maximum penalty for this offence is 15 years’ imprisonment under the Criminal Code Act 1995.

Offending relating to grooming is taken very seriously by the Courts in Australia. If you have been charged with this kind of offending, do not wait to contact Elizabeth McKinnon for legal advice. The consequences of a criminal record can change your life. It is critical that you engage an expert in criminal law, particularly an expert in sex cases.

Sexual Penetration of a Child aged 16 or 17 under Care Supervision or Authority

In Victoria it is a criminal offence to engage in sexual activity with a child aged 16 or 17 that is under your care, supervision, or authority. It is considered a serious crime by the Courts. It is the breach of trust and the abuse of the accused’s position and power over the child that causes this to be a particularly serious sexual crime.

In Victoria, it is against the law to sexually penetrate a child aged 16 or 17 years if the person was under your care, supervision, or authority. Examples of an accused being in a position of care, supervision or authority are:

  • the child’s parent or step-parent;
  • the child’s teacher;
  • the child’s employer;
  • the child’s youth worker;
  • the child’s sports coach;
  • the child’s counsellor;
  • the child’s health professional;
  • a person with parental responsibility within the meaning of the Children, Youth and Families Act 2005 for the child;
  • a religious or spiritual guide, or a leader or official (including a lay member) of a church or religious body, however any such guide, leader, official, church or body is described, who provides care, advice or instruction to the child or has authority over the child;
  • a police officer acting in the course of his or her duty in respect of the child; or
  • a person employed in, or providing services in, a remand centre, youth residential centre, youth training centre or prison and acting in the course of his or her duty in respect of the child.

This offence is under section s49C(1) of the Crimes Act 1958. To find a person guilty of this offence, the Prosecution must prove that the accused:

  • intentionally sexually penetrated the child; or
  • intentionally caused or allowed the child to sexually penetrate the accused; or
  • caused the child to sexually penetrate themselves, another person or be sexually penetrated by another person; and
  • further that, the child is aged 16 or 17 years; and
  • the child is under the accused’s care, supervision, or authority.


In relation to ‘sexual penetration’ this means that the accused sexually penetrated the victim’s vagina, anus, or mouth with their penis or another object.

The Prosecution must prove that the child was aged 16 or 17 at the time the relevant act took place. This is specifically referred to in the Crimes Act 1958 s49C(1).

In Victoria, this is considered a serious offence. The maximum penalty for this offence is 10 years’ imprisonment.

There are defences available to an accused charged with this offence. Two defences often relied upon are:

  • the Crimes Act 1958 provides that a defence to an offence against section 49C(1) is if, at the time of the conduct, the accused reasonably believed that the child was 18 years of age or more; or
  • if the accused had a reasonable belief that the child was not under their care, supervision, or authority then the accused can also use this in their defence.

If you have been charged with sexual penetration of a child aged 16 or 17 years that was under your care, supervision, or authority it is important that you contact Elizabeth McKinnon as soon as possible to receive proper legal advice and representation. The consequences of a criminal record can change your life. It is critical that you engage an expert in criminal law, particularly an expert in sex cases.

If you have been charged with the offence of Sexual Assault, it is important that you contact Elizabeth as soon as possible to receive legal advice and representation.

The consequences of a criminal record can change your life. It is critical that you engage an expert in criminal law.

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