Sexual Offence Charges in Victoria

Written by Justin Chua, Principal Solicitor, Chua Tan Associates. Last reviewed 17 October 2026. General information about Victorian law, not legal advice.

This page is for anyone who has been contacted by police about a sexual offence allegation, has been charged, or is supporting a family member who has. These are serious allegations with serious consequences, and the process has its own rules. Getting legal advice before you speak to police is an important first step.

The law

Most sexual offences are in Part I of the Crimes Act 1958 (Vic). For rape (s 38), the prosecution must prove beyond reasonable doubt that the accused intentionally sexually penetrated the other person, that the other person did not consent, and that the accused did not reasonably believe they were consenting. Sexual assault (s 40) has the same structure but involves intentional sexual touching rather than penetration.

Consent after the 2023 reforms

The Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 introduced what is often called an affirmative consent model for conduct on or after 30 July 2023. Consent means free and voluntary agreement (s 36). Section 36AA lists circumstances in which there is no consent, including force or fear, coercion or intimidation, abuse of a relationship of authority or trust, and removing, tampering with or not using a condom when consent depended on its use.

Under s 36A(2), a belief in consent is not reasonable if the accused did not say or do anything, within a reasonable time before or at the time of the act, to find out whether the other person consented. There is a limited exception where the accused has a cognitive impairment or mental illness that substantially caused them not to check, which the accused must prove on the balance of probabilities (s 36A(3)-(4)). Conduct before 30 July 2023 is judged under the earlier law.

Offences involving children

Separate offences apply where the complainant is a child, including sexual penetration of a child under 12 (s 49A), sexual penetration of a child under 16 (s 49B), offences involving 16- and 17-year-olds under the accused’s care, supervision or authority, and grooming (s 49M). Consent is generally not a defence to these charges. Online child sexual offences may also be charged under Commonwealth law, and are often investigated by federal and state police together.

Maximum penalties

• Rape (s 38): 25 years. Standard sentence 10 years (offences from 1 February 2018). Category 1.
• Sexual assault (s 40): 10 years.
• Sexual penetration of a child under 12 (s 49A): 25 years. Standard sentence 10 years (offences from 1 February 2018). Category 1.
• Sexual penetration of a child under 16 (s 49B): 15 years. Standard sentence 6 years (offences from 1 February 2018).

A category 1 offence means that for an adult offender the court must impose a custodial order except in a very narrow set of circumstances. A standard sentence is a reference point for an offence in the middle of the range of seriousness; it is not a mandatory minimum.

What happens, step by step

1. Contact from police. Often a phone call asking you to attend a station, or an arrest. Sexual offences are usually investigated by specialist police units. You have the right to speak to a lawyer and to decline to answer questions. See Police Interviews: Your Rights.
2. Charge and bail. Bail conditions commonly restrict contact with the complainant and sometimes with children. See Bail Applications.
3. Magistrates’ Court and committal. The case starts in the Magistrates’ Court. Cross-examining the complainant at committal requires leave, and the magistrate cannot grant leave where the complainant was a child or a person with a cognitive impairment when the proceeding began (Criminal Procedure Act 2009 s 123). Since July 2023, the court must give reasons when it grants leave (s 124A).
4. Brief of evidence. Usually the complainant’s statement or recorded interview, messages, any medical or forensic evidence and your interview. Messages and timelines often matter most.
5. Pre-trial steps. A ground rules hearing is held for every sexual offence complainant who will give evidence, to set how questioning will be conducted. Complainants can give evidence by alternative arrangements such as a video link, and an accused person cannot personally cross-examine the complainant.
6. Trial or plea. At trial, the judge gives the jury directions required by Part 5 of the Jury Directions Act 2015, including on consent, delay in reporting and differences in a complainant’s account. If you plead guilty, the plea hearing addresses the facts, your background and your prospects.

Penalties and realistic outcomes

Courts consider the nature of the conduct, any breach of trust, the age and vulnerability of the complainant, the impact on them, whether there was a plea of guilty, your history and your prospects of rehabilitation.

For rape, the Sentencing Advisory Council reported that of 257 people sentenced in the higher courts from 2019-20 to 2023-24, 98.4% received an immediate custodial sentence, and the median total effective sentence was 7 years (Sentencing Snapshot 297, December 2025). For sexual assault in the higher courts, outcomes were more varied: of 82 people sentenced over the same period, 41.5% were imprisoned and 41.5% received a community correction order (Snapshot 298, December 2025). These figures cover all kinds of cases; the facts of your own case matter far more.

Other consequences

• Sex offender registration. Under the Sex Offenders Registration Act 2004 (Vic), adults sentenced for specified offences (mostly offences against children) are registered automatically. For other offences the prosecution can apply for an order, and the court must be satisfied beyond reasonable doubt that you pose a risk (which must be a real risk) to the sexual safety of one or more people or the community. Adult reporting periods are 8 years, 15 years or life.
• Working with Children Check. Under the Worker Screening Act 2020 (Vic), being charged with, not only found guilty of, a serious offence such as rape or a sexual offence against a child can lead to a WWC exclusion, and review rights for these category A offences are limited.
• Visas. For non-citizens, a sentence of 12 months or more, or a sexually based offence involving a child, triggers mandatory visa cancellation under Migration Act 1958 (Cth) s 501(3A) if you are serving a full-time prison sentence. Other convictions can still lead to discretionary cancellation under s 501.
• Employment and registration. Professional registration bodies and employers may need to be notified, sometimes as soon as you are charged.

How we examine a case like this

• The full sequence of messages, calls and social media contact before and after the alleged event.
• Which version of the consent law applies, based on the date of the alleged conduct.
• Consistency between the complainant’s accounts, and whether the brief includes all earlier statements.
• Whether there is evidence of what was said or done to communicate consent.
• Forensic and medical evidence, and what it can and cannot show.
• Confidential health records, which can only be sought with leave and strict notice requirements.

Frequently asked questions

Should I talk to police if they call me about a sexual offence allegation?

Speak to a lawyer first. You have the right to decline to answer questions, and anything you say can be used as evidence. A lawyer can tell you whether an interview is in your interest.

What does affirmative consent mean in Victoria?

For conduct from 30 July 2023, a person cannot reasonably believe someone consents unless they said or did something to find out whether the other person consented. Silence or a lack of resistance is not consent.

Is rape always a prison sentence in Victoria?

For adult offenders, rape is a category 1 offence, so a custodial order is required except in very narrow circumstances. The length of the sentence depends heavily on the facts.

Will I go on the sex offender register?

Registration is automatic for adults sentenced for specified offences, mostly involving children. For other sexual offences it depends on whether the court makes an order on application by the prosecution.

Can the complainant be cross-examined?

Yes, at trial through your lawyer, under ground rules set by the court. At committal, leave is required and is not available where the complainant was a child or has a cognitive impairment.

Penalties and procedures on this page reflect Victorian and Commonwealth law as at the review date shown above. Maximum penalties are rarely imposed; the sentence in any case depends on its own facts.