35. Sexual Offences Against Adults — Which Charge Applies? (Vic)¶
Scope and currency
Cheat sheet · Crimes Act 1958 (Vic) Subdivs 8A–8G · Summary Offences Act 1966 (Vic) s 19 · markers verified against AustLII 18 June 2026
Starting point: filter for a special victim or conduct category first (Gate 0); otherwise the core Subdiv 8A track discriminates on the physical conduct — penetration (s 35A) vs touching (s 35B) is the spine of the section — then runs the consent/fault overlay on every contact charge. s 35A includes digital penetration, so digital penetration is rape (s 38), not sexual assault (s 40). Name the charge, the alternative to plead, and a strength call.
The decision sequence¶
GATE 0 Special victim or conduct category?
Does the matter leave the core Subdiv 8A track? → Cognitive impairment / mental illness + A provides treatment/support services (s 52A): ss 52B–52E track — Gate 5. Consent not in issue. → Prescribed family relationship (s 50A): incest ss 50C–50F track — Gate 6. Consent not a defence (s 50K). → Commercial sexual services + force/threat/detention/fraud/debt (defs s 53A): s 53B (force/threat, 15 yrs), s 53C (causing servitude, 15 yrs), s 53D (conducting a business, 15 yrs); person under 18 → s 53E aggravated (20 yrs). → Intimate image produced / distributed / threatened: s 53R / s 53S / s 53T (3 yrs each; community standards s 53U; consent exceptions ss 53P–53Q). → Sexual penetration involving an animal: s 54A Bestiality (5 yrs; veterinary/agricultural/research exception s 54B). → Sexual exposure of genitals in or within view of a public place: s 19 Summary Offences Act 1966 (summary; 2 yrs). → None of the above: core Subdiv 8A — Gate 1.
GATE 1 Core track — what was the physical conduct?
→ Penetration (s 35A — incl. digital, however slight): rape track — Gate 2. → Touching that is sexual (s 35B; AB v Paulet): s 40 Sexual assault (10 yrs) — then run Gate 3. → Force applied with intent to commit a sexual act, act not completed: s 42 Assault with intent to commit a sexual offence (15 yrs; bites even if B unaware, s 42(3)) — then Gate 3. → No completed contact: Gate 4.
GATE 2 Penetration — direct or compelled?
→ A intentionally penetrates B: s 38 Rape (25 yrs; Cat 1; SS 10 yrs, s 38(3)) — then Gate 3. → A causes B to penetrate A / self / another / an animal, or to be penetrated: s 39 Rape by compelling sexual penetration (25 yrs; Cat 1; no SS). "Causes" is not limited to compulsion (Khun v The King) — then Gate 3.
GATE 3 Consent + fault overlay — runs on EVERY contact charge (ss 38–42)
Both limbs must be made out; this is where most of the contest lies. → No consent (s 36 — free and voluntary agreement): rely on a s 36AA circumstance where available (asleep/unconscious; so affected by alcohol/drugs as to be incapable; force or fear; etc.). → No reasonable belief in consent (s 36A): post-reform A must have said or done something to ascertain consent (s 36A(2)); self-induced intoxication disregarded (s 36B); JDA s 47 direction follows. → Temporal split: conduct before 30 July 2023 → pre-reform consent test; on/after → affirmative-consent test. Facts straddling the date → analyse each incident separately.
TRAP Ex post facto consent — the “next morning” statement (2024 Section A Q1)
Consent (s 36 — free and voluntary agreement) and both Gate 3 limbs are assessed at the time of the sexual act. A statement made afterwards (“I enjoyed it once it started”) cannot retroactively supply consent that was absent when the act occurred — there is no ex post facto consent. → B asleep / unconscious / incapable at the time (s 36AA): consent was absent when penetration occurred; a next-morning statement does not alter that — the charge remains rape (s 38). The Queen v Getachew [2012] HCA 10: complainant asleep when penetration began — A's knowledge that B was or might be asleep necessarily demonstrated awareness B might not be consenting. → A's reasonable belief (s 36A): must exist at the time of the act — post-reform A must have said or done something to ascertain consent (s 36A(2)) before or at the act. Nothing said the next morning can be that step. Getachew: a belief-in-consent direction is only required where A asserts or leads evidence of such a belief. → Evidential use only: a later statement goes, at most, to proof of whether B in fact consented at the time and to credit — it is not a defence and does not undo a s 36AA circumstance.
GATE 4 No completed contact — what was the conduct?
→ Sexual act procured by a threat of harm: s 44 Procuring a sexual act by threat (10 yrs; a threat ordinarily vitiates consent, DPP v Yeong). → Sexual act procured by fraud / false or misleading representation (incl. omission): s 45 Procuring a sexual act by fraud (5 yrs). → Intoxicating substance administered to impair capacity to consent + facilitate a sexual act: s 46 (10 yrs) — preparatory; the sexual act need not occur (cf R v O'Connor). → Took away or detained B for a sexual purpose (or marriage): s 47 Abduction or detention for a sexual purpose (10 yrs; R v Fetherston). → Sexual activity performed for B to see, intending fear or distress: s 48 Sexual activity directed at another person (5 yrs).
GATE 5 Cognitive impairment / mental illness track (ss 52B–52E)
Requires B has a cognitive impairment or mental illness and A provides treatment/support services or is a worker for a provider (s 52A). Touching/presence charges also require the conduct be contrary to community standards. Defences ss 52F–52J (s 52B) / ss 52G–52J (ss 52C–52E); mistakes excluded s 52K. → Penetration (s 35A): s 52B (10 yrs). → Sexual touching (s 35B): s 52C (5 yrs; consent irrelevant, s 52C(4)(b)). → Sexual activity in B's presence (incl. electronically — Case v The King): s 52D (5 yrs). → Causing/allowing B to be present during sexual activity: s 52E (5 yrs).
GATE 6 Incest track (ss 50C–50F) — which relationship?
Relationship defined s 50A; knowledge presumed s 50B; consent not a defence (s 50K); R v MG. → B is A's child or lineal descendant: s 50C (25 yrs; SS 10 yrs only where B under 18). → B is A's step-child: s 50D (25 yrs; SS 10 yrs only where B under 18; exception s 50I). → B is A's parent, lineal ancestor or step-parent (A ≥ 18): s 50E (5 yrs; exceptions s 50J). → B is A's sibling or half-sibling: s 50F (5 yrs; strict proof of knowledge — R v Umanski).
Core contact charges at a glance¶
| Charge | Conduct | Max | Cat / SS / serious sexual offence |
|---|---|---|---|
| s 38 Rape | A penetrates B (s 35A) — incl. digital | 25 yrs | Cat 1; SS 10 yrs; SSO |
| s 39 Rape (compelling) | A causes B to penetrate / be penetrated | 25 yrs | Cat 1; no SS; SSO only where victim a child |
| s 40 Sexual assault | A sexually touches B (s 35B) | 10 yrs | Not Cat ½; SSO |
| s 42 Assault w/ intent | Force + intent B take part in a sexual act | 15 yrs | Not Cat ½; SSO |
| s 44 Procuring (threat) | Sexual act procured by threat | 10 yrs | Not Cat ½; SSO |
| s 46 Substance | Administering to impair consent (preparatory) | 10 yrs | Not Cat ½; SSO |
Other offence families at a glance¶
| Family | Trigger | Lead charge / max |
|---|---|---|
| Cognitive impairment (ss 52B–52E) | s 52A impairment + treatment/support relationship | s 52B penetration — 10 yrs; others 5 yrs |
| Incest (ss 50C–50F) | Prescribed family relationship (s 50A) | s 50C / s 50D — 25 yrs; s 50E / s 50F — 5 yrs |
| Sexual servitude (ss 53B–53E) | Commercial sexual services + coercion (s 53A) | ss 53B–53D — 15 yrs; s 53E aggravated — 20 yrs |
| Intimate images (ss 53R–53T) | Produce / distribute / threaten to distribute | 3 yrs each |
| Bestiality (s 54A) | Penetration involving an animal | 5 yrs |
| Sexual exposure (s 19 SOA) | Sexual exposure of genitals, public place | Summary — 2 yrs |
Discriminators that decide the charge¶
• Penetration vs touching (s 38 vs s 40) — the big one: s 35A includes digital penetration, so a finger inside the body is rape (s 38), not sexual assault (s 40). 25 vs 10 yrs, Category 1 vs neither, SS 10 yrs vs none. Mischarging this as s 40 is a classic error.
• Direct vs compelled (s 38 vs s 39): s 38 is A penetrating B; s 39 is A causing B to penetrate (or be penetrated). Where A forces B to perform the act, s 39 is the charge.
• Completed vs assault-with-intent (s 42): penetration/touching not completed but force plus intent shown → s 42 — it bites even if B was unaware of the force (s 42(3)).
• The substance / GHB scenario: s 46 is a standalone preparatory charge that runs in addition to rape where the act occurred — charge both. Consent to taking the substance is not consent to the sexual act; if B was thereby rendered incapable, the s 36AA(1) incapacity limb grounds rape.
• No-consent vs procured-by-fraud: incapacity or a s 36AA circumstance negates consent → rape/sexual assault; apparent consent obtained by a fraud not going to the nature of the act → s 45.
SORA — the adult-victim trap
Nearly every schedule entry for these offences is keyed to a CHILD victim — against an adult victim they are generally NOT registrable. The only offences here registrable regardless of the victim's age are s 53E (Class 1, SORA Sch 1 item 6AA) and s 54A (Class 2, SORA Sch 2 item 18A). ss 53B–53D, ss 53R–53T and s 19 SOA are not in the SORA Schedules at all. Do not assert automatic registration for an adult-victim sexual offence; keep SORA Class ½ distinct from Sentencing Act Category ½.
s 39 carries NO standard sentence
Only s 38 has a standard-sentence subsection (s 38(3), SS 10 yrs). s 39 is Category 1 but has no SS — an error to the contrary in the earlier charge list was found and corrected on AustLII verification (18 June 2026).
Currency watch¶
• 30 July 2023 — affirmative-consent reforms (ss 36, 36A, 36AA) commenced. Run the temporal split on any conduct straddling the date: pre-reform consent test before, affirmative-consent test on/after.
• Rape is Category 1 — mandatory custodial sentence (s 5(2G)); do not omit. Rape also carries SS 10 yrs (s 38(3)).
• 18 June 2026 — penalty, SORA, Sentencing Act category and serious-offender markers verified against the current consolidated Acts on AustLII (Crimes Act 1958 ss 38, 39, 50C, 50D, 50F; Sentencing Act 1991 s 3 & Sch 1; SORA 2004 Schs 1 & 2).
• Serious sexual offence exclusions — s 39 is an SSO only where the victim is a child (Sch 1 cl 1(a)(ia)); ss 48, 50E, 53R–53T and s 19 SOA are not listed in Sch 1 cl 1 at all; s 50F is excepted where both people are adults and each consented.