Indecent Assault

An assault is any kind of touching (or threat of touching) without a person’s genuine consent. What is and what is not indecent is a matter of fact for the jury. It is a complex legal question as to whether an assault becomes indecent where the victim is unaware of the indecent aspects or motive of the assault. For example, when the victim believes that the assault is a legitimate medical procedure.

Consent cannot be given by any person under 17 years old unless, when the victim is between 16 and 17 years, consent can be a defence for an accused who is under the age of 17 years. Consent can also be a defence if the accused can prove, on the balance of probability, that he or she believed on reasonable grounds that the victim was 17 years of age or over.

Consent cannot be given by a person under the age of 18 years in a case where the accused is the guardian, teacher, religious leader, or in certain other positions of authority over the alleged victim.

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Maximum Penalties

Basic offence: 8 years imprisonment.

Aggravated offence (this includes where the victim is under 14 years old): 10 years imprisonment.

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Unlawful Sexual Intercourse

Any person 17 years or older can have sexual relations with another person aged 17 years or more if they each consent.

It is against the law for a person in a position of authority (for example, a teacher) to have sex, or try to have sex with a person under 18 years.

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Offences include:

• A person who has sexual intercourse with a person under 14 years old –

  • Maximum penalty: life imprisonment.

• A person who has sexual intercourse with a person under 17 years old –

  • Maximum penalty: 10 years imprisonment.

• A person who has sexual intercourse with a person under 18 years old who holds a certain position of authority (such as teachers, foster-parents, guardians, stepparents, religious officials, spiritual leaders, social workers, employers, and others) –

  • Maximum penalty: 10 years imprisonment

• A person who, knowing the other person is, by reason of intellectual disability, unable to understand the nature or consequences of sexual intercourse, has sexual intercourse with the other person –

  • Maximum penalty: 10 years imprisonment.

Willingness of the alleged victim to engage in sexual intercourse is not a defence to any of these offences. Parental permission is also not a defence.

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Rape

Rape occurs where a person has sexual intercourse, or continues to have sexual intercourse, with another person without the consent of that person (or continuing where consent has been withdrawn), either knowing that there is no consent or being recklessly indifferent about that consent.

It is rape even where the victim says that they do not consent, even if they do not physically resist.

It is also rape where a person compels another to engage in, or to continue to engage in sexual intercourse with a person other than the offender, or an act of self-penetration, or an act of bestiality, either knowing that there is no consent or being recklessly indifferent about that consent.

Maximum penalty: life imprisonment.

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Consent to Sexual Activity

Consent to sexual activity is defined as free and voluntary agreement. A person is taken not to freely and voluntarily have agreed to sexual activity if:

• the person agrees because there has been force applied (this includes an express or implied threat of force to the victim or to another person) or because of a threat to denigrate, humiliate, disgrace or harass the person or another person; or

• the victim was unlawfully detained at the time of the activity; or

• the activity occurred whilst the victim was asleep or unconscious; or

• the activity occurred whilst the victim was intoxicated to the point of being incapable of freely and voluntarily agreeing; or

• the activity occurred whilst the victim was affected by a physical, mental or intellectual condition or impairment such that they were incapable of freely or voluntarily agreeing; or

• the victim is unable to understand the nature of the activity; or

• the victim agrees to engage in the activity with a person under a mistaken belief as to the identity of that person; or

• the person is mistaken about the nature of the activity (for example, a person is taken not to freely and voluntarily agree to sexual activity if they agree to engage in the activity in the mistaken belief that the activity is necessary for the purposes of medical diagnosis, investigation or treatment, or for the purpose of hygiene).

 

Reckless Indifference to Consent

A person is guilty of rape if he or she knows that the other person does not consent (or has withdrawn their consent) or is recklessly indifferent as to whether the person has consented. Reckless indifference in the context of sexual offences means a failure on the part of the accused to consider the other person’s wishes, they have utter disregard as to whether they have consented (or withdrawn consent).

A person will be found to be recklessly indifferent to the fact of consent (or withdrawal of consent) if he or she:

• is aware of the possibility that the other person might not be consenting (or has withdrawn consent) but decides to proceed regardless of that possibility; or

• is aware of the possibility that the other person might not be consenting (or has withdrawn consent) but fails to take reasonable steps to ascertain whether the other person does in fact consent before proceeding;

• does not give any thought to whether the other person is consenting to the act (or has withdrawn consent).

Even where an accused was intoxicated at the time the offending occurred, he or she will be guilty of rape provided intent to commit the offence can be shown.

 

Possessing Child Pornography

It is an offence to be in possession of child pornography knowing of its pornographic nature or intending to obtain access to child pornography, obtains access to child pornography or takes a step toward obtaining access to child pornography.

A child is defined as a person under, or apparently under, the age of 17 years.

Maximum Penalty

First basic offence: 5 years imprisonment

First aggravated offence: 7 years imprisonment

Subsequent basic offence: 7 years imprisonment

Subsequent aggravated offence: 10 years imprisonment

 

There are potential defences to sexual offences. Please contact us for more information.