The Crimes Act (NSW) creates numerous offences relating to
sexual or indecent assaults. The Act now codifies these
offences. The offences relating to Sexual assault were
reformed in 1989 when the government brought in new offences
to replace the then existing offences.
The Act now provides for numerous offences for sexual
misconduct and now includes aggravated forms of these
offences. An example of an aggravated form of a sexual offence
would be for example a teacher who forces a student to have
sexual intercourse with him. Because the teacher is a person
in authority to the victim and in a position of trust, then
this is seen as an aggravating feature. These aggravated
offences then carry larger penalties under the Crimes Act to
deter this unlawful conduct.
The Crimes Act not only regulates "Rape" offences ( which
are now referred to in the Act as "Sexual Assault") but also
other forms of sexual misconduct. For example the Crimes Act
creates offences for Indecent Assault, Assault with intent to
have sexual intercourse, Committing acts of indecency,
Procuring sexual intercourse by intimidation or coercion,
Procuring carnal knowledge by fraud (e.g. pretending you are
the victim's spouse), Sexual assaults upon children, Incest,
Bestiality, Forced self manipulation and Misconduct relating
to corpses.
DEFINITIONS
Sexual Intercourse means:
Sexual connection occasioned by the penetration to any
extent of the genitalia (including a surgically constructed
vagina) of a female person or the anus of any person by:
- any part of the body of another person; or
- any object manipulated by another person, except where the penetration is carried out for
proper medical purposes; or
- sexual connection occasioned by the introduction of any
part of the penis or a person into the mouth of another
person;
- cunnilingus
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Consent means:
A person who has sexual intercourse with another person
without the consent of the other person and who is reckless as
to whether the other person consents to the sexual intercourse
is to be taken to know that the other person does not consent
to the sexual intercourse.
- A person who consents to sexual intercourse with another
person:
- under a mistaken belief as to the identity of the other
person; or
- under a mistaken belief that the other person is married
to the person,
is to be taken not to consent to the sexual intercourse;
and
- A person who consents to sexual intercourse with another
person under a mistaken belief that the sexual intercourse
is for medical or hygienic purposes is taken not to consent
to the sexual intercourse; and
- A person who knows that another person consents to
sexual intercourse under a mistaken belief referred to in
paragraph (a) or (a1) is to be taken to know that the other
person does not consent to the sexual intercourse; and
- A person who submits to sexual intercourse with another
person as a result of threats of terror, whether the threats
are against, or the terror is instilled in, the person who
submits to the sexual intercourse or any other person, is to
be regarded as not consenting to the sexual intercourse; and
- A person who does not offer actual physical resistance
to sexual intercourse is not, by reason only of that fact,
to be regarded as consenting to the sexual intercourse.
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Homosexual Intercourse
Homosexual Intercourse means:
- sexual connection occasioned by the penetration of the
anus of any male person by the penis of any person;
- Sexual connection occasioned by the introduction of any
part of the penis of a person into the mouth of another male
person; or
- the continuation of homosexual intercourse as defined in
paragraph 1. or 2.
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OFFENCES
Sexual Assault
This section creates an Offence of having sexual
intercourse (Sexual intercourse as defined above) without the
consent of the other person. This offence is a felony and
cannot be dealt with summarily. Normally this offence is
determined in the District Court. If the accused pleads Not
Guilty to the charge then the guilt of the accused is
determined by a jury.
Consent is an issue that is frequently at dispute when such
charges are defended. This is normally because once a
complaint of sexual assault has been made to the Police the
alleged victim is normally taken to a hospital for a medical
examination. When conducting the examination the doctor will
use a "Sexual Assault Kit". The doctor will conduct their own
examination as well as take swabs.
If there is evidence of semen present then there would be
difficulty on the part of the accused to say that sexual
intercourse did not take place. The investigating officer
would then normally obtain a sample of the accused blood. The
Police have the power to demand an accused to give a sample of
blood, saliva or hair under the Crimes Act. This can then be
used for examination to match up with the swab taken. This
evidence can either clear an accused or be cogent evidence
that sexual intercourse took place and that the accused was
the person who took part in the sexual act.
This evidence is at times not available to a court if the
victim did not make the complaint after the sexual intercourse
occurred. In such cases the allegation that sexual intercourse
took place can then be disputed by the accused at the trial
and the jury would then need to be satisfied Beyond Reasonable
Doubt that sexual intercourse took place.
An accused in such trials can admit that sexual intercourse
took place but argue there was consent on the part of the
victim. In such a situation the Crown must prove Beyond
Reasonable Doubt that the accused knew there was no consent or
that the accused was reckless as to whether the victim was
consenting to the sexual intercourse.
The Crown in this case would call the victim to give
evidence about the circumstances as to who the sexual
intercourse occurred as well as what conversation or protest
that was made by the victim at the time.
In the trial for a charge of sexual assault the victim can
give evidence "In Cameral". That is in another room with the
evidence taken by camera and shown in the court room of a
Television screen. A young person is entitled to a support
person to be with them when giving evidence of the offence for
moral support.
The court can also make an order prohibiting publication of
any part of the evidence taken at the trial. The court can
also suppress the names of the parties.
As with all matters of domestic violence, the spouse who is
the victim can be compelled to give evidence. This is to
ensure that perpetrators of violence in the home cannot escape
conviction on the basis of further intimidation or coercion of
the victim. It is the intention of the parliament that a
person who uses violence in the domestic situation is made to
account for their actions instead of being allowed to escape
the consequences of such violent acts.
This offence also can be committed in "Circumstances of
Aggravation." When the offence is committed in circumstances
of aggravation the maximum penalty is penal servitude for 20
years.
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Aggravated Sexual Assault
For this offence to be proved the Crown needs to prove
Sexual Assault as discussed above as well as circumstances of
Aggravation.
For this offence the circumstances of aggravation are a
follows:
- if at the time of, or immediately before or after, the
commission of the offence, the alleged offender maliciously
inflicts actual bodily harm on the alleged victim or any
other person who is present or nearby (e.g. the victim's
child); or
- at the time of, or immediately before of after the
commission of the offence, the alleged offender threatens to
inflict actual bodily harm on the alleged victim or any
other person who is present or nearby by means of an
offensive weapon or instrument; or
- the alleged offender is in the company of another person
or persons; or
- the alleged victim is under the age of 16 years; or
- the alleged victim is (whether generally or at the time
of the commission of the offence ) under the authority of
the alleged offender; or
- the alleged victim has a serious physical disability; or
- the alleged victim has a serious intellectual
disability.
The Crown would only need to prove one of the above
aggravating circumstances, beyond reasonable doubt, in
addition to the sexual assault to obtain a conviction for the
aggravated form of the offence.
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Assault with Intent to have Sexual Intercourse
For this offence to be proved the Crown needs to prove that
the accused, with intent to have sexual intercourse with the
victim; EITHER
- maliciously inflicts actual bodily harm on the other
person or a third person who is present or nearby; OR
- threatens to inflict actual bodily harm on the other
person or a third person who is present or nearby by means
of an offensive weapon or instrument.
This offence has a maximum penalty of penal servitude for
20 years.
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Indecent Assault
This offence requires the Crown to prove that an assault
took place and that immediately before during or after the
assault the accused committed an act of indecency on or in the
presence of the victim. This is an indictable offence,
however, can be dealt with summarily before a magistrate
sitting alone. The indecent act can be by the same act as the
assault itself.
If the Indecent Assault is committed in circumstances of
aggravation then the maximum penalty is imprisonment for 10
years.
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Act of Indecency
An act of indecency is an act that a right minded person
would consider to be contrary to community standards of
decency. This section creates two offences. The first is where
the act of indecency is committed with or towards a person who
is under the age of 16 years and a second where the act of
indecency is committed with or towards a person over the age
of 16 years. Where the victim is under 16 years the penalty is
imprisonment for 2 years and where the victim is above 16 the
penalty is imprisonment for 18 months.
Consent of the victim is no defence to this charge.
For aggravated forms of this offence, when the victim is
under sixteen years the maximum penalty is imprisonment for 5
years and where the victim is over 16 years imprisonment for 3
years. If the act of indecency is with or towards a person
under the age of 10 years then the maximum penalty is
imprisonment for 7 years.
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Sexual Intercourse - Child between 10 and 16
If a person has sexual intercourse with a child between 10
and 16 is liable to penal servitude for 8 years. If the victim
is under the authority of the accused then the maximum penalty
is penal servitude for 10 years.
There is a statutory defence to this charge if the accused
believed the child was over 16 years and the child was in fact
over 16 years. The accused would need to prove this to the
court on the Balance of Probabilities.
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Attempting to have Sexual Intercourse with a Child under
10
Any person who attempts to have sexual intercourse with a
child under 10 is liable to a maximum penalty of penal
servitude for 20 years.
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Carnal Knowledge by Teacher etc
Any person who being a schoolmaster or teacher or a father
or step-father who unlawfully and carnally knows a girl or
attempts such act, being his pupil or daughter or
step-daughter commits an offence and is liable to a maximum
penalty of penal servitude for 8 years.
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Incest
If a male has sexual intercourse with a female over the age
of 16 years who is his mother, sister, daughter or grand
daughter is guilty of incest. This is probably due to the aim
of the section to prevent inter-breeding. If a female has
sexual intercourse with a male being her grandfather, father,
brother, or son is also guilty of incest.
The maximum penalty is penal servitude for seven
years.
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Homosexual intercourse with male under 10
A person who has homosexual intercourse with a male person
under 10 years of age shall be liable to penal servitude for
25 years.
If a person attempts to have homosexual intercourse with a
male person under 10 years of age is liable to penal servitude
for 14 years.
If during the trial it is not proved that the child was
under 10 years but was in fact between 10 and 16 years of age
then the accused can be found guilty of the latter
offence.
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Homosexual intercourse with male between 10 and
18
For this offence an accused is liable to penal servitude
for 10 years. This section has been the subject of debate of
recent years as Gay lobbies argue discrimination. This is on
the basis that hetero-sexual men can have sex with a female
when she turns 16 and so this section should not include males
between 16 and 18.
If the homosexual intercourse is by a teacher then the
penalty is 14 years penal servitude.
An attempt to commit this offence has a maximum penalty of
penal servitude of 7 years.
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Acts of Gross Indecency
If a male person commits an act of gross indecency with or
towards a male person under 18 years old shall be liable to
imprisonment for 2 years.
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Sexual Assault by Forced Self-Manipulation
An accused found guilty of forcing another person to
penetrate their anus or vagina themselves or with an object is
liable to a penalty of penal servitude for 20 years.
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Bestiality
Bestiality is a sexual act between a human and an animal.
To commit an act of bestiality is an offence which makes the
accused liable to penal servitude to 14 years.
If a person attempts bestiality then they are liable to
penal servitude for 5 years.
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Misconduct with regard to Corpses
Any person who:
- indecently interferes with any dead human body; or
- improperly interferes with, or offers any indignity to,
any dead human body or human remains
is guilty of an offence and is liable to imprisonment for
two years.
