According to the Australian Institute of Health and Welfare, 200,000 of Australians experienced sexual assault in the leadup to 2020. That’s approximately 1.1% of the population – a jump from 0.7% in 2012.
Thankfully, this is likely due to a cultural shift that allows accusations to be made more freely rather than an actual increase in sexual assault.
A lot of media attention has been cast on the individuals who’ve come forward with accusations of sexual assault – but what about those who’ve been accused?
Accusations of this nature can cause considerable reputational and financial damage if unfounded – thus, the right legal defence is crucial.
A sexual assault lawyer explains the facts
Sexual assault does not always mean rape
Many assume that just like theft (which we covered last week) sexual assault is an umbrella category for all manner of sexual crimes such as:
- Sexual slavery
- Child sex offences
However in Victoria, the crime of sexual assault doesn’t refer to any of these crimes, but rather a specific charge.
Under Section 40 of the Crimes Act, sexual assault is defined as “intentional sexual touching to which the recipient does not consent and the accused does not reasonably believe that the recipient consents.”
In summation, it’s a less severe charge that relates to unwelcome and nonconsensual non-penetrative sexual contact including groping.
In order for a sexual assault conviction to be made, the prosecution needs to prove four key elements:
- The accused intentionally carried out the alleged contact – the contact doesn’t have to be direct, nor is it limited to certain types of contact, provided that…
- The contact was sexual in nature – non-sexual contact that arouses the accused may also qualify as sexual contact
- Consent was not given – Victorian law recognises that consent can be withdrawn, and that certain variables can impact one’s ability to consent
- There was no reasonable assumption of consent – the prosecution needs to prove that there was no way of misinterpreting the situation as having provided consent
Notice how it doesn’t mention sexual penetration anywhere.
Sexual assault vs aggravated sexual assault: what’s the difference, and does Victorian law use this charge?
Sexual assault charges are broadly defined, and don’t necessarily need to involve physical harm or coercion. In fact, many such cases involve little injury or force.
When they do however, courts in other states like NSW and Queensland may charge you with aggravated sexual assault if you:
- Inflicted actual bodily harm on the alleged victim
- Threatened harm with a weapon
- Broke into a premises to commit the offence
- Held the alleged victim before or after the offence
In Victoria however, these cases still result in a charge of sexual assault.
Instead, these aggravating circumstances will be filed as separate charges alongside sexual assault charges.
What Victoria does have are charges for sexual assault against vulnerable parties. In addition to child sexual assault charges, you may be charged with sexual assault against a person with a cognitive impairment or a mental illness section 52 of the Crimes Act.
Whatever you’re charged with, the right legal defence can help you avoid the worst outcome.
Our sexual assault lawyers in Melbourne have years of experience defending those accused and arguing for less harsh outcomes for our clients.
Our work begins from the first interview, ensuring that you know your rights, and helping you defend yourself from these accusations.
I’ve been accused of sexual assault – what do I do?
Exercise your right to silence
When accused of any crime – but especially one as emotionally charged as sexual assault – it’s important that you exercise your right to silence until you can engage a criminal defence lawyer.
Many people assume that staying silent is a bad look, and end up talking. They assume that their point of view will be understood, and that they’ll be cleared – honesty is the best policy, after all.
Unfortunately, those accused of sexual assault often end up incriminating themselves by:
- Misremembering details
- Contradicting themselves
- Leaving gaps in their memories
- Stumbling over their words
A criminal lawyer ensures that when the time comes to talk, you understand the interview process and procedure. We’ll help you understand your rights, guide you through the procedure and help you determine whether or not it is in your interests to answer questions or not.
Understand the gravity of the situation
As mentioned above, the legal definition of sexual assault is quite broad, covering a wide range of non-consensual contact.
Unfortunately, many people accused of sexual assault don’t realise that current laws are much broader than they used to be. Many still conflate sexual assault with more serious sexual crimes like rape, and attempt to defend themselves with the notion that “nobody got hurt”.
In doing so, they may inadvertently incriminate themselves in their attempts to justify or explain their actions away.
The first thing our sexual assault specialists will do is explain the severity of the charges, as well as potential penalties.
We’ll help you understand the gravity of the situation, and devise a defence strategy that maximises your chances of being exonerated.
Don’t contact your accuser
Oftentimes, individuals of sexual assault often try to contact their accusers.
For some, it’s a belief that it’s all some big misunderstanding, and that by speaking directly, it can be talked out. In other cases, it’s a belief that they’re the target of a false accusation that motivates them to reach out to the accuser.
Whatever the motive, our criminal solicitors strongly advise against contacting your accuser while the investigation is going on, as any attempts to contact your accuser may be interpreted as attempting to interfere with the case.
And that in turn may lead to you being charged with attempting to pervert the course of justice, or even witness intimidation – charges that come with hefty penalties on their own.
And in cases where that’s impossible, do your best to limit communication, and avoid the subject of the case.
And finally, when you do need to talk about the case, all communication should be conducted lawyer-to-lawyer to ensure that there’s no room for misunderstandings.
Be upfront with your criminal defence lawyer
In order for your lawyer to mount a successful defence, they need to know everything, and not just the details surrounding the alleged incident, either.
Whenever your lawyer asks you something, answer with complete honesty and transparency – if you withhold anything and it comes out during your day in court, your entire case may be undermined, and you’ll suffer from credibility issues.
It’s natural to want to defend yourself, we understand that – however, it can weaken your defence if you do.
We’re only able to argue in your favour and craft a defence strategy if we know everything about the allegation. Leave something out, and you might end up with holes in your defence, leading to a worse outcome.
Our criminal lawyers specialise in defending you from sexual assault charges
Sexual assault accusations are some of the most serious – and potentially damaging – accusations.
If you’re charged with this offence, it’s imperative that you seek out the help of a specialist who knows how to defend you from these charges.
Our criminal lawyers in Frankston specialise in a wide number of different areas of law, including sexual crimes.
Using our experience, we’ll provide expert legal advice, help you devise a defence strategy, and work hard to ensure that you get a fair hearing for what’s often a highly emotionally charged situation.