Victorian Numbered Acts Victorian Numbered ActsFor section 35 of the Crimes Act 1958 substitute —
(1) In Subdivisions (8A) to (8FA)—
"animal" means any animal (other than a human being), whether vertebrate or not;
"care, supervision or authority"—see section 37;
"consent"—see section 36;
"domestic partner" of a person means—
(a) a person who is in a registered domestic relationship with the person; or
(b) a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender or gender identity);
Note
See also subsection (2).
"sexual", in relation to an activity—see section 35D;
"sexual", in relation to touching—see section 35B;
"sexual penetration"—see section 35A;
"take part in a sexual act"—see section 35C;
"touching"—see section 35B;
"vagina" includes—
(a) the external genitalia; and
(b) a surgically constructed vagina.
(2) For the purposes of the definition of domestic partner in subsection (1)—
(a) "registered domestic relationship" has the same meaning as in the Relationships Act 2008 ; and
(b) in determining whether persons who are not in a registered domestic relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.
(1) A person (A) sexually penetrates another person (B) if—
(a) A introduces (to any extent) a part of A's body or an object into B's vagina; or
(b) A introduces (to any extent) a part of A's body or an object into B's anus; or
(c) A introduces (to any extent) their penis into B's mouth; or
(d) A, having introduced a part of A's body or an object into B's vagina, continues to keep it there; or
(e) A, having introduced a part of A's body or an object into B's anus, continues to keep it there; or
(f) A, having introduced their penis into B's mouth, continues to keep it there.
(2) A person sexually penetrates themselves if—
(a) the person introduces (to any extent) a part of their body or an object into their own vagina; or
(b) the person introduces (to any extent) a part of their body or an object into their own anus; or
(c) having introduced a part of their body or an object into their own vagina, they continue to keep it there; or
(d) having introduced a part of their body or an object into their own anus, they continue to keep it there.
(3) A person (A) sexually penetrates an animal if A engages in conduct with the animal that would involve sexual penetration as defined by subsection (1) were the animal another person (B).
(4) A person (B) is sexually penetrated by an animal if B engages in conduct with the animal that would involve sexual penetration as defined by subsection (1) were the animal another person (A).
(5) In relation to sexual penetration of an animal, a reference to the vagina or anus includes a reference to any similar part.
Note
References to A and B are included to help readers understand the definition of sexual penetration. The same technique is used in the offence provisions involving sexual penetration. There is no connection between the A and B referred to in one section and the A and B referred to in another section.
(1) Touching may be done—
(a) with any part of the body; or
(b) with anything else; or
(c) through anything, including anything worn by the person doing the touching or by the person touched.
(2) Touching may be sexual due to—
(a) the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or
(b) the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or
(c) any other aspect of the touching, including the circumstances in which it is done.
A person takes part in a sexual act if—
(a) the person is sexually penetrated or sexually touched—
(i) by another person; or
(ii) by an animal; or
(b) the person sexually penetrates or sexually touches—
(i) another person; or
(ii) themselves; or
(iii) an animal.
An activity may be sexual due to—
(a) the area of the body that is involved in the activity, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or
(b) the fact that the person engaging in the activity seeks or gets sexual arousal or sexual gratification from the activity; or
(c) any other aspect of the activity, including the circumstances in which it is engaged in.
Example
A watches pornography in the presence of A's daughter (B) and her friend (C).
(1) For the purposes of Subdivisions (8A) to (8E), consent means free agreement.
(2) Circumstances in which a person does not consent to an act include, but are not limited to, the following—
(a) the person submits to the act because of force or the fear of force, whether to that person or someone else;
(b) the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;
(c) the person submits to the act because the person is unlawfully detained;
(d) the person is asleep or unconscious;
(e) the person is so affected by alcohol or another drug as to be incapable of consenting to the act;
(f) the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;
Note
This circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting.
(g) the person is incapable of understanding the sexual nature of the act;
(h) the person is mistaken about the sexual nature of the act;
(i) the person is mistaken about the identity of any other person involved in the act;
(j) the person mistakenly believes that the act is for medical or hygienic purposes;
(k) if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;
(l) the person does not say or do anything to indicate consent to the act;
(m) having given consent to the act, the person later withdraws consent to the act taking place or continuing.
(1) Whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances.
(2) Without limiting subsection (1), the circumstances include any steps that the person has taken to find out whether the other person consents or, in the case of an offence against section 42(1), would consent to the act.
(1) In determining whether a person who is intoxicated has a reasonable belief at any time—
(a) if the intoxication is self-induced, regard must be had to the standard of a reasonable person who is not intoxicated and who is otherwise in the same circumstances as that person at the relevant time; and
(b) if the intoxication is not self-induced, regard must be had to the standard of a reasonable person who is intoxicated to the same extent as that person and who is in the same circumstances as that person at the relevant time.
(2) For the purposes of this section, intoxication is self-induced unless it came about—
(a) involuntarily; or
(b) because of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or
(c) from the use of a drug for which a prescription is required and that was used in accordance with the directions of the person who prescribed it; or
(d) from the use of a drug for which a prescription is not required and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer.
(3) However, intoxication that comes about in the circumstances referred to in subsection (2)(c) or (d) is self-induced if the person using the drug knew, or had reason to believe, when taking the drug that it would significantly impair the person's judgement or control.
(1) Without limiting the circumstances in which a child is under the care, supervision or authority of a person, a person (A) has a child (B) under their care, supervision or authority if A is—
(a) B's parent or step-parent; or
(b) B's teacher; or
(c) B's employer; or
(d) B's youth worker; or
(e) B's sports coach; or
(f) B's counsellor; or
(g) B's health professional; or
(h) a person who has parental responsibility (within the meaning of the Children, Youth and Families Act 2005 ) for B; or
(i) a religious or spiritual guide, or a leader or official (including a lay member) of a church or religious body, however any such guide, leader, official, church or body is described, who provides care, advice or instruction to B or has authority over B; or
(j) an out of home carer (within the meaning given by section 74 of the Children, Youth and Families Act 2005 ) of B; or
(k) a police officer acting in the course of their duty in respect of B; or
(l) employed in, or providing services in, a remand centre, youth residential centre, youth justice centre or prison and is acting in the course of their duty in respect of B.
(2) In this section—
"parent" includes—
(a) a parent by operation of the Adoption Act 1984 ; and
(b) a parent by operation of the Status of Children Act 1974 ;
"step-parent", in relation to a person, includes the spouse or domestic partner of the person's parent .".