How do you defend a sexual assault charge in Australia? You can defend a sexual assault charge by raising a legal defence such as consent, mistaken or reasonable belief in consent, alibi, mistaken identity, or by exposing inconsistencies in the prosecution case. Early legal advice and forensic preparation are critical. Every case turns on its own facts.
How to Defend a Sexual Assault Charge in Australia
Being accused of sexual assault is one of the most serious allegations you can face. In Victoria, a conviction can result in lengthy prison terms, mandatory sex offender registration, and lifelong consequences. There is also a stigma which attaches to allegations of this kind. However, with the right defence strategy, these charges can be contested — and, in many cases, defended.
First Steps If You've Been Charged
- Do not speak to police before getting legal advice — you have the right to remain silent.
- Avoid contacting the complainant — this could be considered interference or intimidation.
- Preserve all evidence — keep any messages, emails, social media logs, or witness details that support your case.
Legal Defence Strategies That May Apply
1. Consent or Mistaken Belief in Consent
You may have a defence if you reasonably believed the other person was consenting. Under Victoria's affirmative consent laws, consent must be freely and clearly communicated — and not assumed based on silence or previous interactions. Running a defence around your belief requires careful preparation with you about what you say happened and clearly identifying what you based your belief on. There is often a dispute about what was said or done by either party. A legal defence centered around belief in consent involves presenting your version in a way that can be accepted as reasonable by a jury or fact finder.
2. Alibi
If you were somewhere else when the offence allegedly occurred, and you can prove it, this is one of the strongest ways to defeat a charge. Location data, witness statements or receipts may support your alibi.
We had one allegation from 20 years ago where we could show our client was not in Melbourne at the Christmas party the rape allegation was meant to have occurred at.
To strengthen a defence that relies on an alibi, it is important to properly establish the time period the alleged offence was meant to have taken place, so that the alibi can have maximum impact.
3. Mistaken Identity
Where identification is an issue, the defence may argue that the complainant has mistakenly identified the accused — particularly in low-light or delayed reporting scenarios.
This defence may arise in circumstances where the alleged offender is a stranger and the police have identified the person from either CCTV, DNA or other means. Alternatively, it may arise when the complainant is intoxicated from drugs or alcohol and is mistaken about who the offender is.
In cases like this, surrounding circumstances take on greater significance. We critically assess each piece of evidence that the prosecution is relying upon to establish the identity of the accused. To do this, we engage expert witnesses, obtain metadata from mobile phones to establish locations, and challenge witnesses through effective cross-examination.
4. Inconsistencies in the Complainant's Evidence
While you cannot raise irrelevant sexual history under rape shield laws, you can challenge discrepancies in timelines, statements, or medical evidence that undermine the prosecution's version of events. While some inconsistencies may appear inconsequential, arguments can be mounted about the weight that can be put onto a witness' evidence that keeps changing- particularly if it changes in significant ways.
In a recent case, the complainant had made two police statements and had given evidence at a contested committal hearing at Court. We were able to analyze the various versions she had given and track all of the changes. We were also able to compare her evidence with other independent sources of evidence such as the text message history between herself and our client. Her evidence was so inconsistent to both her police statements and the independent evidence, that it opened up an opportunity to apply to have the matter discharged at the committal hearing on the basis that she was so lacking in credibility that no properly instructed jury could accept her evidence beyond reasonable doubt.
Understanding the Court Process
Sexual assault matters in Victoria proceed via the Magistrates' Court for preliminary hearings and often proceed to jury trial in the County Court. Judges are required to direct juries to ignore common myths — such as the idea that a "real victim" must fight back or report immediately. There are also strict rules restricting questions about the sexual history of the complainant, even if it relates to the previous sexual history with the accused person.
Why You Need a Specialist Lawyer
Our defence team at Doogue George Lawyers brings years of experience defending complex sexual offence cases. We:
- Advise you from the outset to protect your rights and establish your defence
- Forensically analyse the police brief
- Engage expert witnesses in DNA, psychology, or digital data
- Prepare cross-examinations within legal limits
- Understand how to run cases with sensitive subject matter in an appropriate way
- Protect your reputation in and out of court
- Leave no stone unturned
Summary of Common Defence Approaches
| Defence Strategy | How It Helps |
|---|---|
| Consent | Demonstrates mutual and willing participation |
| Mistaken Belief in Consent | Shows you had reasonable grounds to believe the person consented |
| Alibi | Proves you were elsewhere at the time |
| Mistaken Identity | Challenges reliability of identification |
| Inconsistencies | Raises reasonable doubt in the complainant's version |
FAQs: Sexual Assault Charges in Australia
Can a sexual assault charge be dropped in Victoria?
Yes. Charges may be withdrawn if evidence is weak, the complainant recants, or if the prosecution determines there is no reasonable prospect of conviction. A skilled defence lawyer can present evidence to support an early withdrawal. At Doogue + George we look for opportunities to stop a case before the police even lay the charge.
Is it possible to avoid jail for a sexual assault charge?
While imprisonment is common for convictions, outcomes vary. Some lower-level charges or unique circumstances may result in a non-custodial sentence such as a Community Correction Order, particularly for first-time offenders. Your lawyer will be able to advise you about what the likely penalty range would be if you were either found guilty or you pleaded guilty to charges at Court.
What is the sex offender register and how long will I be on it?
In Victoria, many sexual offences result in mandatory registration on the Sex Offender Register (the register). Placement on the register involves rather onerous obligations including being required to provide a range of personal information to police, participating in an annual review, inform them about contact with children, intended travel plans and to seek permission to travel overseas. It is intended to increase the information known by police about people who have committed certain sexual offences, as a means of keeping members of the community safe. Timeframes depend on the offence type and court outcome — ranging from 8 years to life. An experienced lawyer may argue for exemption or minimisation where permitted by law. It is possible to apply to be suspended from the reporting obligations to police, if you are placed on it.
What if the sexual contact was consensual but the person changed their mind later?
If consent was present at the time of the act, this can form a strong defence. However, the law considers whether consent was freely and clearly given. This will involve careful consideration of what was said and done at the time the consent was being communicated and what may have transpired in the intervening period. It is important that you don't try and contact the complainant to talk about what happened, as this has the potential to make things infinitely worse for you. Immediate legal advice is crucial to ensure your version of events is protected and presented appropriately.
Will I be named in the media if charged?
Most cases will proceed without there being media attention. Victoria has an open justice system which allows for lawful publication of things which are heard in open Court. There are some limitations on what can be reported, and in cases involving a sexual offence those limitations tend to arise where the publication of the accused name might lead to the identification of the alleged victim- this is especially so when the alleged victim is a child. The law around opposing media applications and making suppression orders is complex and requires careful consideration. Speak with one of the lawyers at Doogue + George if you are concerned about your name being reported in the media.
Can I travel overseas or work while on bail?
That will depend on your bail conditions, which can vary greatly depending on the specific concerns around risk held by the police and the Court. In many cases, you may be restricted from international travel. Where appropriate, your lawyer can apply to vary conditions if they are impacting on you significantly and the risk factors can be addressed.
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.
