Criminal Law Newsletter

Sexual Offences and the law

Although not a comfortable topic to discuss, it is important for people to be aware of a number of offences that involve sexual conduct. Broadly speaking, sexual offences include:

• Rape (although this is legally known by different names in different States and Territories);
• Indecent assault (a crime involving unwanted touching or sexual contact);
• Various offences concerning forms of sexual conduct (such as bigamy or indecent acts); and
• The deliberate transmission of a sexual disease.

The scope of these offences is quite broad and this article will focus on the first category.

Rape and Similar Crimes

This offence is legally known by a number of names in different States and Territories in Australia:

• Rape (in Queensland, South Australia, Tasmania and Victoria);
• Sexual assault (in New South Wales);
• Sexual intercourse without consent (in the Australian Capital Territory and the Northern Territory); and
• Sexual penetration without consent (in Western Australia).

Despite the difference in name, the law is generally similar throughout Australia. The crime consists of three basic elements:

• sexual intercourse;
• an absence of consent; and
• the mental element of the accused.

The first requirement relates to the physical nature of the crime. The law is now generally expressed in gender-neutral terms, so that there is not an assumption that only a woman could be the victim of a rape. In addition, the crime is wide enough to include acts that would not involve actual penile penetration.

This topic naturally brings up some difficult issues concerning when someone consents. It would, however, be reasonable to say that consent must be freely given, may be withdrawn at any time and cannot be obtained in situations involving force, fraud or intimidation. The law also considers some individuals (such as a young person under age or someone who is mentally disabled) as being incapable of giving consent. Likewise, a person who is asleep or sedated would be unable to give their consent.

The final mental element reflects the mental state of the accused. It requires the prosecution to prove that the accused knew of the lack of consent, was reckless or indifferent to it or failed to stop when the complainant (that is, the person alleging the sexual attack) said no. This may also address situations where the complainant did not say no, but it would be clear that they had not consented. This is a separate issue from the accused claiming that they had an honest or reasonable belief that the complainant had consented.

Other Circumstances

There are often different crimes and terms of imprisonment for circumstances of aggravation. This reflects instances where the crime is considered even more serious, such as when the accused acted with other offenders, employed weapons or committed the offence at the complainant’s home. Alternatively, the prosecution may be able to pursue connected offences of preparing or attempting to commit a sexual offence.

Getting Help

If you have been the victim of a sexual offence, it is critical that you urgently take steps to seek safety and legal advice. A lawyer can assist in securing evidence that would be critical to securing a conviction (such as arranging a sexual assault examination by a doctor) and advise you on questions of criminal injuries compensation.

It is also important to understand that the prosecution is working in the interests of the community at large and that primarily means that they will seek to obtain a conviction where there is sufficient evidence. This does not, however, mean that a prosecutor will be always be understanding of your needs as a victim and may express a desire to have you cross-examined in the witness box or for you to answer potentially uncomfortable questions. It remains important to have committed legal advice so that your interests are protected.

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