Sexual Offences Lawyer Ballarat

An allegation of a sexual offence is among the most serious situations a person can face. The offences carry some of the highest maximum penalties in Victorian law, conviction can bring mandatory sex offender registration, and the consequences for employment, family and reputation begin long before any court determines guilt. Victoria’s consent laws were also fundamentally rewritten with effect from mid-2023, and a separate body of Commonwealth law applies to online conduct. This page explains both, in detail. If you are under investigation or have been charged, the single most important step is to obtain legal advice before speaking to police. Everything on this page is general legal information, not advice about a specific matter.

On This Page

Victoria’s Affirmative Consent Laws

For conduct alleged to have occurred on or after 30 July 2023, Victoria applies an affirmative consent model under the Crimes Act 1958. Consent means free and voluntary agreement, and the Act sets out an expanded list of circumstances in which a person does not consent — including where they do not say or do anything to indicate consent, and where a condom is removed or tampered with contrary to an agreement (so-called “stealthing”).

The most significant change for accused people concerns the “reasonable belief in consent” element. Under section 36A, a belief in consent is not reasonable unless, within a reasonable time before or at the time of the act, the accused said or did something to find out whether the other person consented. Silence, passivity or an assumption based on past intimacy is not enough. A narrow exception exists where a cognitive impairment or mental illness (not caused by self-induced intoxication) substantially explains the failure to say or do anything.

Two practical points follow. First, the date of the alleged conduct matters enormously: conduct before 30 July 2023 — including historical allegations — is assessed under the law as it stood at the time, which differs materially. Second, in contested cases the evidence about what was said and done before and during the relevant act is now often the central battleground of the trial.

Victorian Offences: Adults

The principal sexual offences against adults under the Crimes Act 1958 are:

• Rape (section 38) — intentional sexual penetration of another person without their consent and without a reasonable belief in consent. Maximum penalty: 25 years’ imprisonment.
• Rape by compelling sexual penetration (section 39) — compelling another person to sexually penetrate themselves, the accused or a third person. Maximum penalty: 25 years.
• Sexual assault (section 40) — intentional sexual touching without consent and without reasonable belief in consent. Maximum penalty: 10 years. (The old offence of “indecent assault” was replaced by sexual assault in 2015 — the older offence still applies to historical allegations from before that date.)
• Sexual assault by compelling sexual touching (section 41) and assault with intent to commit a sexual offence (section 42) — related offences addressing compelled touching and assaults committed with sexual intent.
• Threats and procuring offences — including threatening to commit a sexual offence and procuring sexual acts by threat or fraud.

These are indictable offences. Rape and other serious counts are determined in the County Court before a jury, with the early stages of the case managed in the Magistrates’ Court.

Victorian Offences: Children

The Crimes Act contains a comprehensive set of offences concerning children, restructured in 2017 and treated by the courts with the utmost seriousness. The principal offences include:

• Sexual penetration of a child under 12 (section 49A) — maximum 25 years’ imprisonment, with a standard sentence of 10 years. These matters can only be determined in the County Court, and consent is no defence.
• Sexual penetration of a child under 16 (section 49B) — maximum 15 years, with a standard sentence of 6 years. Limited statutory exceptions exist, including where the accused is no more than two years older than a complainant aged 12 or over, and a reasonable-belief-as-to-age exception in defined circumstances.
• Sexual assault of a child under 16 (section 49D) — maximum 10 years.
• Sexual offences concerning 16 and 17 year olds under care, supervision or authority (sections 49C, 49E) — covering teachers, employers, coaches and others in positions of authority.
• Persistent sexual abuse of a child under 16 (section 49J) — an offence directed at a course of offending over time rather than a single incident. Maximum 25 years’ imprisonment, with a standard sentence of 10 years. It is a Category 1 offence under the Sentencing Act 1991, meaning a custodial sentence is effectively mandatory on conviction, and a Class 1 registrable offence carrying lifetime reporting obligations.
• Grooming (section 49M) — communicating with a child under 16, or their carer, intending to facilitate the child’s involvement in a sexual offence. Maximum 10 years. Grooming can be charged on the basis of communications alone.
• Child abuse material offences (sections 51B–51H) — producing, distributing, accessing or possessing child abuse material, each carrying a maximum of 10 years under Victorian law. “Possession” extends to control over electronic material, and these allegations almost always involve detailed forensic analysis of devices.

Allegations involving children frequently also attract Commonwealth charges where any conduct occurred online — see the Commonwealth section below — and conviction generally carries mandatory sex offender registration.

Intimate Image Offences

Since 30 July 2023, three intimate image offences sit in the Crimes Act 1958: producing an intimate image (section 53R), distributing an intimate image (section 53S), and threatening to distribute an intimate image (section 53T). Each carries a maximum penalty of 3 years’ imprisonment, and the offences are indictable — a significant escalation from their former home in the Summary Offences Act. The definition of “producing” expressly extends to digitally created and altered images, including superimposing a person’s face onto an intimate image — so-called deepfakes. An honest but mistaken belief that the conduct was acceptable by community standards is no defence, the DPP’s consent is required to prosecute an accused under 16, and the court can order disposal of intimate images even where the accused is acquitted. These charges commonly arise in relationship breakdowns — including alongside intervention order proceedings — and can also constitute family violence.

Commonwealth Sexual Offences

A separate and substantial body of federal law applies under the Criminal Code (Cth) wherever a “carriage service” — the internet, a phone network, social media or messaging apps — is involved. These matters are typically investigated by the Australian Federal Police, often following referrals from international agencies or platform reports, and prosecuted by the Commonwealth Director of Public Prosecutions. The principal categories are:

• Carriage service child abuse material offences — using the internet to access, transmit, solicit or make available child abuse material, and possessing or controlling such material obtained through a carriage service. Maximum penalties for these offences are generally 15 years’ imprisonment, with aggravated forms — such as repeat offending or conduct involving networks — carrying maximums of up to 30 years.
• Online grooming and procuring offences — using a carriage service to groom or procure a person under 16 for sexual activity, or to expose them to indecent material. These offences can be committed even where the “child” was in fact an undercover police officer or did not exist.
• Offences against children outside Australia — engaging in, procuring or facilitating sexual activity with children overseas, including persistent abuse, which carries a maximum of 30 years and, for offences committed after mid-2020, mandatory minimum sentencing provisions.

Commonwealth matters differ from Victorian prosecutions in important ways: different elements and fault requirements, a distinct federal sentencing regime under the Crimes Act 1914 (Cth) with its own approach to guilty plea discounts, mandatory minimums for certain child sex offences, and recognizance release orders in place of some State sentencing orders. It is common for Victorian and Commonwealth charges to be laid together arising from the same investigation — for example, State child abuse material possession counts alongside Commonwealth carriage-service counts — and defending them requires fluency in both systems.

Registration and Other Consequences

For many sexual offences, the consequences of conviction extend well beyond the sentence:

• Sex offender registration. Under the Sex Offenders Registration Act 2004, registration is mandatory for most child sexual offences and available for others, with reporting periods of 8 years, 15 years or life depending on the offence and history. Registration imposes ongoing reporting obligations and restrictions, and breach of those obligations is itself an offence.
• Working with children. A finding of guilt for many sexual offences results in exclusion from child-related work.
• Employment, travel and reputation. Convictions appear on police checks, affect professional registration and can restrict international travel.

Because these consequences often flow automatically from the category of offence, charge negotiation — which offence, under which Act — can matter as much as the ultimate plea.

How Sexual Offence Cases Proceed

Sexual offence proceedings follow a distinct procedural path with special rules:

• Investigation. Allegations are typically investigated by specialist police units (SOCIT). Suspects are usually invited to a recorded interview — a critical juncture at which legal advice should always come first.
• Court pathway. Charges commence in the Magistrates’ Court — beginning with a first hearing — with indictable matters proceeding to the County Court for trial or plea. Bail in serious sexual offence matters can engage reverse-onus tests.
• Complainant evidence rules. Special rules apply to the evidence of complainants: recorded evidence and remote facilities, strict limits on cross-examination about sexual history, protection of confidential communications such as counselling records, and a prohibition on an unrepresented accused personally cross-examining the complainant. These rules shape trial strategy from the outset.
• Timeline. These prosecutions commonly take well over a year to resolve. Managing bail conditions, employment and family circumstances during that period is part of the defence task.

Defending Sexual Offence Charges

Every matter turns on its own facts, but the recurring defence issues include:

• The acts did not occur — identity, fabrication or reliability of the account, often tested through inconsistencies in the complainant’s statements and surrounding evidence;
• Consent — for adult complainants, whether the prosecution can prove absence of consent, and whether the accused held a reasonable belief in consent measured against the affirmative consent standard (or, for pre-2023 conduct, the law at the time);
• Forensic and digital evidence — challenging device attribution, possession and knowledge in child abuse material cases, and the admissibility of search and seizure;
• Statutory exceptions — including the limited age-based exceptions for certain child offences; and
• Charge analysis and negotiation — whether the correct offence, era-appropriate provision and jurisdiction have been charged, which can dramatically affect both the available defences and the consequences of any plea.

If you are under investigation or have been charged with a sexual offence, contact us before taking any other step — including before any police interview. We provide fixed-fee representation and act in these matters from first interview through to County Court trial.

Frequently Asked Questions

Should I speak to police if I’m accused of a sexual offence?

Not before obtaining legal advice. You generally have a right to silence, and the recorded police interview is often the single most important piece of evidence in a sexual offence prosecution. A lawyer can advise whether participating in an interview is in your interests before you decide — once given, an account cannot be taken back.

What is affirmative consent and how does it affect my case?

For conduct on or after 30 July 2023, a belief in consent is not reasonable unless you said or did something, at or reasonably near the time, to find out whether the other person consented. Silence or assumptions are not enough. For conduct before that date, including historical allegations, the law as it stood at the time applies instead.

What is the maximum penalty for rape in Victoria?

Rape under section 38 of the Crimes Act 1958 carries a maximum penalty of 25 years’ imprisonment, as does rape by compelling sexual penetration. Sexual assault carries a maximum of 10 years. Serious sexual offences are determined in the County Court before a jury.

What is the difference between a Victorian and a Commonwealth sexual offence charge?

Victorian charges arise under the Crimes Act 1958 and are prosecuted by the Victorian OPP. Commonwealth charges arise under the Criminal Code (Cth) wherever the internet or a phone network is involved — including online grooming and carriage-service child abuse material offences — and are prosecuted by the CDPP under a separate federal sentencing regime, including mandatory minimums for some child sex offences. The two are often charged together.

Will I go on the Sex Offenders Register if found guilty?

For most child sexual offences registration is mandatory, with reporting periods of 8 years, 15 years or life depending on the offence; for some other offences the court has a discretion. Registration carries ongoing reporting obligations, and which offence you are convicted of can determine whether registration applies at all — one reason charge negotiation matters.

The allegation is from many years ago. Can I still be charged?

Yes. There is no limitation period for serious sexual offences in Victoria, and historical prosecutions are common. Importantly, historical allegations are assessed under the law as it stood at the time of the alleged conduct — which affects the offence charged, its elements and the available defences — so era-specific legal analysis is essential.

I’ve been charged but not convicted. Can I keep working?

It depends on your charges, bail conditions and occupation. Some charges trigger interim consequences — for example, suspension of a Working with Children Check or professional notification obligations — before any finding of guilt. Get advice early about your specific obligations, as getting this wrong can create separate problems.

How long will a sexual offence case take?

Serious sexual offence prosecutions commonly take well over a year from charge to resolution, and contested County Court trials can take longer. Your lawyer can manage bail conditions and procedural steps during that period and advise on realistic timeframes for your matter.

Get in Touch

Contact us today for a confidential consultation with an experienced criminal defence lawyer.