Sexual Offences

Sexual Assault

Under section 61 of the Crimes Act 1900, it is a criminal offence to have sexual intercourse with a person without the consent of the other person, knowing that the other person does not consent to the sexual intercourse.

Under the legislation “sexual intercourse” is defined as:

1. The penetration to any extent of the genitalia or anus of a person by any body part of another person or using any object manipulated by another person;
2. The introduction of the genitalia of a person into the mouth of another person;
3. The application of the mouth or tongue to the female genitalia.

Maximum Penalty:

This offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years imprisonment.

Aggravated Sexual Assault

Under section 61J of the Crimes Act 1900, aggravated sexual assault occurs when sexual assault (as defined in Section 61I of the Crimes Act 1900) is committed in circumstances of aggravation.

Under this section, circumstances of aggravation can include the following:

1. at the time of, or immediately before or after, the commission of the offence, the accused person intentionally or recklessly inflicts actual bodily harm on the victim or any other person who is present or nearby, or
2. at the time of, or immediately before or after, the commission of the offence, the accused person threatens to inflict actual bodily harm on the victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
3. at the time of, or immediately before or after, the commission of the offence, the accused person threatens to inflict grievous bodily harm or wounding on the victim or any other person who is present or nearby, or
4. the accused person is in the company of another person or persons, or
5. the victim is under the age of 16 years, or
6. the victim is (whether generally or at the time of the commission of the offence) under the authority of the accused person, or
7. the victim has a serious physical disability, or
8. the victim has a cognitive impairment, or
9. the accused person breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
10. the accused person deprives the victim of his or her liberty for a period before or after the commission of the

Maximum Penalty:

The maximum penalty for aggravated sexual assault is the same in all circumstances of aggravation. The maximum penalty is 20 years imprisonment with a standard non-parole period of 10 years imprisonment.

Aggravated Sexual Assault in Company

Under section 61JA of the Crimes Act 1900, aggravated sexual assault in company occurs when sexual assault (as defined in Section 61I of the Crimes Act 1900) is committed in circumstances of aggravation and in company of one or more people.

Under this section, circumstances of aggravation can include the following:

1. If the offender, immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the victim or any other person who is present or nearby, or
2. If the offender, immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument, or
3. If the offender deprives the complainant of his or her liberty for a period before or after the commission of the offence.

Maximum Penalty:

The maximum penalty for aggravated sexual assault in company is the same in all circumstances of aggravation. The maximum penalty is life imprisonment imprisonment with a standard non-parole period of 15 years imprisonment.

Sexual Touching

Under section 61KC of the Crimes Act 1900, it is a criminal offence to sexually touch another person, knowing that the other person does not consent.

Under the legislation, the following conduct would amount to sexual touching:

1. If the offender sexually touches another person without their consent;
2. If the offender incites the victim to sexually touch them;
3. If the offender incites another person to sexually touch the victim without their consent;
4. If the offender incites the victim to sexually touch another person.

Maximum Penalty:

The maximum penalty is the same for all instances of sexual touching without consent (not in circumstances of aggravation). The maximum penalty in the Local Court is 2 years imprisonment and/or a $5,500 fine, and in the District Court, it is 5 years imprisonment.

Aggravated Sexual Touching

Under section 61KD of the Crimes Act 1900, aggravated sexual touching occurs when sexual touching (as defined in Section 61KC of the Crimes Act 1900) is committed in circumstances of aggravation.

Under this section, circumstances of aggravation can include the following:

1. the accused person is in the company of another person or persons during the sexual touching;
2. the victim is (whether generally or at the time of the commission of the offence) under the authority of the accused person;
3. the victim has a serious physical disability;
4. the victim has a cognitive impairment.

Maximum Penalty:

The maximum penalty is the same for all instances of aggravated sexual touching without consent. The maximum penalty in the Local Court is 2 years imprisonment and/or a $11,000 fine, and in the District Court, it is 7 years imprisonment with a standard non-parole period of 7 years imprisonment.

Carrying out a sexual act with or towards another

Under section 61KE of the Crimes Act 1900, a person commits a criminal offence if they, without the consent of another person (the victim), and knowing that the victim does not consent, intentionally carries out a sexual act with or towards the victim.

Under the legislation, the following would amount to a sexual act:

1. Carrying out a sexual act with or towards another person without their consent;
2. Inciting the victim to carry out a sexual act with or towards you;
3. Inciting a third person to carry out a sexual act with or towards the victim;
4. Inciting the victim to carry out a sexual act with or towards a third person.

Under the legislation, a “sexual act” means an act (other than sexual touching) carried out in circumstances where a reasonable person would consider the act to be sexual.

Maximum Penalty:

The maximum penalty is the same for all instances of “sexual acts” (not in circumstances of aggravation). The maximum penalty in the Local Court is 18 months imprisonment and/or a $5,500 fine, and in the District Court, it is 18 months imprisonment.

Aggravated Sexual Act

Under section 61KF of the Crimes Act 1900, an aggravated sexual act occurs when a sexual act (as defined in Section 61KE of the Crimes Act 1900) is committed under circumstances of aggravation.

Under this section, circumstances of aggravation can include the following:

1. the accused person is in the company of another person or persons during the sexual touching;
2. the victim is (whether generally or at the time of the commission of the offence) under the authority of the accused person;
3. the victim has a serious physical disability;
4. the victim has a cognitive impairment.

Maximum Penalty:

The maximum penalty is the same for all instances of sexual acts committed in circumstances of aggravation. The maximum penalty in the Local Court is 2 years imprisonment and/or a $5,500 fine, and in the District Court, it is 3 years imprisonment.

Sexual intercourse with a child

Under section 66A and 66C of the crimes act 1900, it is a criminal offence to have sex with a child under the age of 16, whether that child consents to the sexual intercourse or not.

An offence under s66C (have sex with a child between 10 and 16 years of age) can be committed in circumstances of aggravation. Under this section, circumstances of aggravation can include the following:

1. If at the time of, or immediately before or after, the commission of the offence, the accused person intentionally or recklessly inflicts actual bodily harm on the victim or any other person who is present or nearby, or
2. If at the time of, or immediately before or after, the commission of the offence, the accused person threatens to inflict actual bodily harm on the victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
3. If the accused person is in the company of another person or persons, or
4. If the victim is (whether generally or at the time of the commission of the offence) under the authority of the accused person, or
5. The victim has a serious physical disability, or
6. The victim has a cognitive impairment, or
7. The accused person took advantage of the victim being under the influence of alcohol or a drug in order to commit the offence, or
8. The accused person deprives the victim of his or her liberty for a period before or after the commission of the offence, or
9. The accused person breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence.

Defences:

Under section 80AG of the legislation, it is a defence to this charge if the victim consented to the sexual intercourse, is above 14 years of age and the age-gap between the offender and the victim is no more than 2 years. This is also controversially known as the ‘Romeo and Juliet defence’.

It is also a defence to this charge if the child passed themselves off as being of legal age, the offender genuinely believed the child to be of legal age and that belief was reasonable in all of the circumstances.

Maximum Penalty:

Sexual touching of a child

Under section 66DA and 66DB of the Crimes Act 1900, it is a criminal offence to sexually touch a child who is under 16 years of age.

Under the legislation, the following conduct would amount to sexual touching:

1. If the offender sexually touches another a child who is between 10 and 16 years of age;
2. If the offender incites the child who is between 10 and 16 years of age to sexually touch them;
3. If the offender incites another person to sexually touch the child who is between 10 and 16 years of age;
4. If the offender incites the child who is between 10 and 16 years of age to sexually touch another person.

Defences:

Under section 80AG of the legislation, it is a defence to this charge if the victim consented to the sexual touching, is above 14 years of age and the age-gap between the offender and the victim is no more than 2 years. This is also controversially known as the ‘Romeo and Juliet defence’.

It is also a defence to this charge if the child passed themselves off as being of legal age, the offender genuinely believed the child to be of legal age and that belief was reasonable in all of the circumstances.

Maximum penalty:

Grooming of a Child Under 16 for sexual activity

Under section 66EB of the Crimes Act 1900, it is a criminal offence to groom or procure a child under the age of 16 for unlawful sexual activity.

Under the legislation, “Grooming” is defined as:

1. An adult who engages in any conduct that exposes a child to indecent material or provides a child with an intoxicating substance or with any financial or other material benefit, and
2. Who does so with the intention of making it easier to procure the child for unlawful sexual activity with that or any other person,

Maximum Penalty:

Producing, Disseminating, or Possessing Child Abuse Material

Definition:

Under section 91H of the Crimes Act 1900, it is a criminal offence to produce, disseminate or possessing material that depicts or describes, in a sexual or otherwise exploitative context, children under the age of 16.

Under the legislation, “Child abuse material” means material that depicts or describes, in a way that a reasonable persons would regard as being, in all the circumstances, offensive, and shows:

1. A person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
2. A person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or
3. A person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
4. The private parts of a person who is, appears to be or is implied to be, a child.

Maximum Penalty:

The maximum penalty is the same if you produce, disseminate or possess child abuse material. The maximum penalty in the Local Court is 2 years imprisonment or a $11,000 fine, and in the District Court, it is 10 years imprisonment.

Voyeurism

Under section 91J of the Crimes Act 1900, it is a criminal offence to observe a person who is engaged in a private act for the purposes of obtaining sexual arousal or gratification, without the consent of that person.

This offence can be committed in circumstances of aggravation. Aggravating factors would include:

1. If the victim was under the age of 16 years old, and/or
2. The offender constructed or adapted the fabric of the building for the purposes of facilitating the commission of the offence.

Maximum Penalty:

The maximum penalty for the basic offence is 2 years imprisonment and/or a $11,000 fine. If the offences is committed in circumstances of aggravation, the maximum penalty increases to 2 years imprisonment and/or a $11,000 fine in the Local Court, and 5 years imprisonment in the District Court.

Recording Intimate Image Without Consent

Under section 91P of the Crimes Act 1900, it is a criminal offence if a person intentionally records an intimate image (photo of video) of another person without consent.

Maximum Penalty:

The maximum penalty for this offence in the Local Court is 2 years imprisonment and/or a $5,500 fine, and 3 years imprisonment and/or a $11,000 fine in the District Court.

Distributing Intimate Image Without Consent

Under section 91Q of the Crimes Act 1900, it is a criminal offence is a person intentionally distributes an intimate image (photo or video) of another person without consent.

Maximum Penalty:

The maximum penalty for this offence in the Local Court is 2 years imprisonment and/or a $5,500 fine, and 3 years imprisonment and/or a $11,000 fine in the District Court.

Threaten to Record or Distribute Intimate Image

Under section 91R of the Crimes Act 1900, it is a criminal offence to threaten to record an intimate image of another person without consent.

Maximum Penalty:

The maximum penalty for this offence in the Local Court is 2 years imprisonment and/or a $5,500 fine, and 3 years imprisonment and/or a $11,000 fine in the District Court.