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Sexual assault and sexual harassment are serious matters in Victoria. Facing either of them can be very distressing, but understanding the legal differences and taking the right steps can help people seek justice.
This blog post provides a detailed look at sexual assault and sexual harassment in Victoria, explaining the differences, how they are treated in the workplace, available reporting options, and their legal consequences.
What Is Sexual Assault?
Sexual assault is a type of criminal offence under Victorian law. It involves indecent sexual behaviour, such as touching another person without their consent.
Legal Context Under Victoria's Law
Section 40 of the Crimes Act 1958 (Vic) defines sexual assault as an act of intentional and unwanted touching of another person in a sexual manner. Sexual assault is identifiable by the following key elements:
- Intentionally touching the other person sexually
- Lack of consent to the touching
- No reasonable belief that the person consented
Some examples of sexual assault include:
- Intentionally groping or touching the person's private areas
- Forceful kissing or unwanted sexual contact, such as forced penetration
- Forcing someone to touch the offender sexually (touching their private parts)
- Touching someone sexually while they are unconscious or cannot consent voluntarily due to intoxication
Sexual Assault vs Rape
Although used interchangeably, rape is a separate and more serious offence than sexual assault. Section 38 of the Crimes Act 1958 (Vic) defines rape as sexual penetration without consent, which means penetrating another person without a reasonable belief in consent. Sexual assault refers to sexual touching that is non-penetrative, such as forceful groping, kissing, or touching another person with an object.
What Is Sexual Harassment?
Sexual harassment refers to any unwelcome sexual advance, and it does not always involve physical assault.
Sexual harassment is a form of unlawful sex-based discrimination and is prohibited under Section 92 of the Equal Opportunity Act 2010 (Vic) and the Fair Work Act 2009 (Cth). When someone makes unwelcome sexual advances, unwelcome requests for sexual favours, or engages in other forms of unwelcome sexual conduct, it constitutes sexual harassment. The law also recognises sexual harassment as unwelcome behaviour that makes the victim feel humiliated, offended, or intimidated.
Common Examples of Sexual Harassment
Some common examples of sexual harassment include:
- Making sexually suggestive comments or jokes
- Indulging in suggestive behaviours, such as leering
- Requesting sexual favours
- Sending sexually explicit text messages
- Emailing sexually explicit content or making obscene social media comments
- Unwelcome physical contact (although it may not amount to sexual assault)
Sexual Harassment in the Workplace vs Public Life
The Equal Opportunity Act 2010 (Vic) prohibits sexual harassment in employment,at school, and other areas of public life.
Examples of sexual harassment in the workplace
- Managers making sexual jokes or advances towards their colleagues
- Employers discussing private or sexual matters inside the workplace
- Team members indulging in suggestive behaviours (unwelcome hugging or "accidentally" touching)
Examples of sexual harassment in public settings
- Customers leering at employees at a retail store, or vice versa
- Educational professors suggesting sexual favours to students
- Indecent exposure in public places, such as a shop or a train (especially under Victorian criminal law)
Sexual Harassment vs Sexual Assault: What Is the Difference?
Here is a quick overview of sexual harassment vs sexual assault for better understanding:
Core Distinction
While the sexual element remains the same, the actual difference in sexual assault vs harassment is that the former is more obvious. It involves direct physical contact with the other person,whereas harassment can be more subtle and may not require in-person contact. Assault involves direct contact through an unwanted or forced sexual activity, and
Consent and Severity
| The Act | Basis of Consent | Severity of the Act | Severity of the Law |
| Sexual Assault | Absence of consent decides whether the act was a sexual assault | High severity, involving unwelcome touching in a sexual way | Considered a crime under criminal legislation, imposing serious penalties |
| Sexual Harassment | Consent matters, but focus is more on the unwelcome nature of the conduct | Varied severity, anything from passing comments to unwelcome touching | Typically considered unlawful, imposing financial compensation or disciplinary actions |
Workplace Context: Sexual Harassment vs Sexual Assault in Victoria
Sexual harassment and sexual assault are unlawful in the workplace. Anyone who experiences either at their workplace must understand how the law treats it and what steps to take after.
Workplace Sexual Harassment Law
Employers in Victoria have a legal duty to take reasonable steps to prevent sexual harassment. This means any kind of unwelcome behaviour should be penalised, and the victim must be able to raise a complaint against both the sexual harasser and the company they are employed at. Courts can then find a company vicariously liable for harassment caused by its employees or by someone else within the same company.
Sexual Assault in the Workplace
Workplace sexual assault in Victoria is a serious crime as well. Sexual assault cases involving a workplace can also result in severe punishments if the other person presses charges based on sufficient evidence.
Reporting Options: Workplace vs Police
For sexual assault in the workplace, the victim should report it to the police, if possible.
As per the Equal Opportunity Act, employers must prevent sexual harassment, regardless of whether any complaint has been made. Hence, victims have full right to report harassment to their employer, and they must charge the harasser with appropriate fines or disciplinary actions. The victim can also file a complaint with the Australian Human Rights Commission or a similar independent statutory agency, which will determine remedies based on its investigation.
Legal Consequences and Remedies
Given that both sexual harassment and assault are unlawful acts, they have legal consequences that shape how the case proceeds when a complaint is raised.
Penalties for Sexual Assault
In Victoria, most sexual assault cases impose imprisonment, with up to a maximum of 10 years, and some can also include just a community correction order.
Remedies for Sexual Harassment
Sexual harassment remedies can include:
- Financial compensation
- Changes in workplace policies and employee practices
- Apologies from the harasser
Intersection With Criminal Law
While sexual assault is already recognised as a crime, harassment can also be considered an offence under criminal law when it includes any of the following:
- Indecent exposure
- Sexual assault
- Stalking
- Obscene communications
What to Do If You Experience It in Victoria
If you have been sexually harassed or sexually assaulted in Victoria, here are some key measures:
Immediate Steps
- Report the incident to the appropriate authority, whether your workplace, the police, or an independent agency.
- Document any evidence you have to support your case.
- Consult an experienced criminal lawyer for legal guidance on next steps.
Reporting Sexual Assault
- File a police report and state all the facts as clearly as possible.
- Call the Sexual Assault Crisis Line for assistance after an assault.
Reporting Sexual Harassment
- Raise a complaint with your company's supervisor, HR, counsellor, or your immediate manager.
- You can also file your complaint at the Australian Human Rights Commission for a formal investigation.
How Our Lawyers Can Help
Doogue+ George Defence Lawyers assist clients facing allegations of sexual offences in Victoria. With a proven track record of handling criminal litigation, our team can bring years of expertise to your case. If you are facing sexual harassment or assault complaints, our lawyers can ensure that you navigate the legal proceedings confidently.
Frequently Asked Questions (FAQs)
Is Sexual Harassment the Same as Sexual Assault?
No. Sexual assault includes direct physical contact,whereas harassment does not always. It can also include unwelcome verbal communication or text messages.
Does Sexual Assault Only Involve Physical Contact?
Yes. Physical contact is the main deciding factor, as any other behaviour cannot be considered an assault, even if it was non-consensual.
Can Unwanted Comments Be Sexual Assault?
No. They will be considered as sexual harassment.
When Should Someone Report Harassment to the Police vs a Tribunal?
Harassment should be reported to the police if there was any criminal offence involved, such as assault or indecent exposure. If not, then one should report it to the tribunal.
What Laws Protect Workers From Sexual Harassment in Victoria?
The Fair Work Act and the Equal Opportunity Act 2010 (Vic) protect employees in Victoria from sexual harassment.
Can Sexual Harassment Include Online Behaviour?
Yes, online behaviour can constitute sexual harassment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.