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Sexual Assault By Compelling Sexual Touching

– section 41 of the Crimes Act 1958

Sexual Assault by Compelling Sexual Touching is charged where the police think someone has forced another person to engage in sexual touching, usually through the threat of physical violence.
This is an indictable offence, but it can be heard summarily in the Magistrates’ Court.
 
What is the legal definition of Sexual Assault by Compelling Sexual Touching
The legal definition of Sexual Assault by Compelling Sexual Touching is when somebody forces another person to sexually touch themselves, sexually touch another person, sexually touch an animal, or be sexually touched by another person or an animal.

Examples of Sexual Assault by Compelling Sexual Touching
  • Someone forces another person to touch their own genitals by threatening the other person with violence.
  • Someone forces another person to touch them in a way that sexually gratifies them.
Elements of the offence
A person may be proven guilty of this charge if the following elements are satisfied in court:

  • The accused caused another person (C) to touch the accused; or
  • The accused caused another person (C) to touch themselves; or
  • The accused caused another person (C) to touch another person (P) or an animal; or
  • The accused caused another person (C) to be touched by another person (P) or by an animal; and
  • The touching was sexual; and
  • The person (C) did not consent to the touching; and
  • The accused did not reasonably believe that the person (C) consents to the touching
Legislation
The section that covers this offence is section 41 of the Crimes Act 1958.
 
  • The other person consented
  • There was no sexual touching
There are other possible defences, depending on the circumstances surrounding the alleged offending. Each matter is unique and requires and individual approach and strategy.

Questions in cases like this
  • How can they prove the touching was forced?
  • How can they prove the touching was sexual?

Sexual Assault by Compelling Sexual Touching has a maximum penalty of 10 years imprisonment.
 
Sentencing in the Magistrates’ Court of Victoria
The Sentencing Advisory Council has released statistics for people sentenced in the Magistrates’ Court of Victoria between 1 January 2010 and 31 December 2012. Greater detail is available on the Sentencing Advisory Council’s website, however some of the more pertinent information is outlined below.

Sentences for matters including an indecent assault
Of the 397 people sentenced in that period for matters including an indecent assault:

  • 14.9% received a sentence of imprisonment
  • 2.8% received a partially suspended period of imprisonment
  • 15.9% received a wholly suspended period of imprisonment
  • 32.5% received some form of community based order
  • 19.1% received a fine
  • 14.1% received an adjourned undertaking to be of good behaviour or were discharged or dismissed either with or without a conviction.
  • Of the people who received a period of imprisonment;
  • 15.3% received less than three months imprisonment
  • 15.3% received between three and six months imprisonment
  • 18.6% received between twelve and eighteen months imprisonment
  • 8.5% received between 18 and twenty-four months imprisonment
  • 8.5% received between twenty-four and thirty-six months imprisonment
  • 8.5% received more than thirty-six months imprisonment
  • A non-parole period was not set in 49.2% of cases but, where a non-parole period was set, the most common length was between 6 and 12 months (27.1% of cases).
  • The most commonly imposed length of Community Corrections Orders was between 12 and 18 months (84.5% of cases). The average length of Community Based Orders (now abolished and replaced by Community Corrections Orders) was between 12 and 24 months (88.6% of cases).
Sentences for matters for matters consisting only of charges of indecent assault
Of the 539 people sentenced for matters consisting only of charges of indecent assault:

  • 16.9% received a period of imprisonment
  • 2.9% received a partially suspended sentence of imprisonment
  • 13% received a wholly suspended period of imprisonment
  • 35% received some form of community based order,
  • 18.9% received a fine
  • 13.7% received an adjourned undertaking to be of good behaviour or were discharged or dismissed either with or without a conviction.
Of the people who received an aggregate period of imprisonment (aggregate sentencing occurs when the one sentence is imposed for all charges within a case, as opposed to individual sentences for individual charges):

  • 4.4% received less than three months imprisonment
  • 9.9% received between three and six months imprisonment
  • 13.2% received between six and 12 months imprisonment
  • 14.3% received between 12 and 18 months imprisonment
  • 5.5% received between 18 and 24 months imprisonment
  • and 8.8% received more than 24 months imprisonment.
Of the people who received a non-aggregated period of imprisonment

  • 8.8% received less than three months imprisonment
  • 5.5% received between three and six months imprisonment
  • 11% received between six and 12 months imprisonment
  • 13.2% received between 12 and 18 months imprisonment
  • 5.5% received between 18 and 24 months imprisonment
  • no one received more than 24 months imprisonment.
The statistics in regard to the length of community based orders imposed are the same as above.

Sentencing in the County Court of Victoria
The Sentencing Advisory Council’s Sentencing Snapshot 146 describes sentencing outcomes for indecent assault in the County Court of Victoria between 2007 and 2012. During this period 145 people were sentenced for a principle offence1 of indecent assault. Of those sentenced, 30% received a period of immediate imprisonment, 32% received a wholly suspended sentence of imprisonment, 8% received a partially suspended period of imprisonment, 12% received some form of community based order, 6% received a fine, and 3% received an adjourned undertaking with conviction.

The median length of imprisonment imposed was 1 year and 5 months. The most common length of imprisonment imposed was between 1 and 2 years.

Of those people who received a principal sentence of imprisonment, 93% also received a total effective sentence of imprisonment.2 The median total effective length of imprisonment was 2 years and 15 days.

When a person is sentenced to a term of imprisonment of one year or more, the court may fix a non-parole period. Where a non-parole period is fixed, the person must serve that period before being eligible for parole. Of those eligible to have a non-parole period fixed, 86% were given a non-parole period. The median length of the non-parole periods set was 1 year and 3 months. The most common non-parole period imposed was between 1 and 2 years.

Where an offender received a total effective period of imprisonment, the most common sentence was 2 years with a non-parole period of 1 year.

To view sentencing decisions by Victorian County Courts for the charge of Indecent Assault, visit this page.


[1] If a person is sentenced for a case with a single charge, the offence for that charge is the principal offence. If a person is sentenced for more than one charge in a single case, the principal offence is the offence for the charge that attracted the most serious sentence according to the sentencing hierarchy.
[2] The total effective sentence in a case with a single charge is the principal sentence. The total effective sentence in a case with multiple charges is the sentence that results from the court ordering the individual sentences for each charge to be served concurrently (at the same time) or wholly or partially cumulatively (one after the other).