Rape and sexual assault are the principal sexual offences against adults in Victoria, and among the most serious charges a person can face. McMahon Criminal Defence Lawyers provides experienced, discreet representation from the first police contact through to County Court trial, on fixed fees. This is general information; for the broader framework, including the affirmative consent law, see our main sexual offences page.
Rape (Section 38)
Under section 38 of the Crimes Act 1958, a person commits rape if they intentionally sexually penetrate another person, that person does not consent, and the accused does not reasonably believe the other person consents. The maximum penalty is 25 years’ imprisonment, with a standard sentence of 10 years, and it is a Category 1 offence under the Sentencing Act — meaning a custodial sentence is required on conviction. A related offence, rape by compelling sexual penetration (section 39), carries the same maximum.
Sexual Assault (Section 40)
Sexual assault under section 40 involves intentional sexual touching of another person without consent and without a reasonable belief in consent. The maximum penalty is 10 years’ imprisonment. This offence replaced the former charge of indecent assault in 2015 — the older offence still applies to allegations from before that date.
Consent and Reasonable Belief
For conduct on or after 30 July 2023, Victoria applies an affirmative consent model. A belief in consent is not reasonable unless the accused said or did something, at or reasonably near the time, to find out whether the other person consented. In contested cases, what was said and done before and during the relevant act is often the central issue at trial. For conduct before that date, including historical allegations, the law as it stood at the time applies.
Defending the Charge
- The act did not occur — identity, fabrication, or reliability of the account, often tested through inconsistencies;
- Consent — whether the prosecution can prove absence of consent, and whether the accused held a reasonable belief measured against the affirmative consent standard;
- Forensic and digital evidence — challenging the prosecution evidence; and
- Charge analysis — whether the correct, era-appropriate offence has been charged.
If you are under investigation or charged, do not participate in a police interview before getting advice. Contact us first. Your matter will begin with a first hearing; for bail see our guide to bail.
Frequently Asked Questions
What is the maximum penalty for rape in Victoria?
Rape under section 38 carries a maximum of 25 years’ imprisonment with a standard sentence of 10 years, and is a Category 1 offence requiring a custodial sentence on conviction. Rape by compelling sexual penetration carries the same maximum.
What is the difference between rape and sexual assault?
Rape (section 38) involves sexual penetration without consent. Sexual assault (section 40) involves sexual touching without penetration, without consent, and carries a maximum of 10 years rather than 25. The prosecution chooses the charge based on the alleged act.
Should I speak to police if accused of a sexual offence?
Not before getting legal advice. The recorded police interview is often the most important evidence in these cases, and you generally have a right to silence. A lawyer can advise whether participating is in your interests before you decide.
How does affirmative consent 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 the time to find out whether the other person consented. Silence or assumption is not enough. For earlier conduct, the law as it stood at the time applies.
Can I be charged over an allegation from many years ago?
Yes. There is no limitation period for serious sexual offences in Victoria, and historical prosecutions are common. Historical allegations are assessed under the law as it stood at the time, which affects the offence, its elements and the available defences.
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If you are under investigation or have been charged, contact us before taking any other step — including before any police interview. We provide experienced, discreet, fixed-fee representation across Victoria.
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