What does the law say about sexual offences?

Contributed by Penny Pestano and Chrystina Stanford and current to January 2018

Sexual Assault

Sexual assault is a crime in all jurisdictions throughout Australia. People who engage sexually with another person must have consent from the other person otherwise they can be charged with committing a sexual offence. Consent must be provided for the range of sexual acts, including sexual intercourse which s 50 Crimes Act 1900 (ACT) defines as:

• The penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person;
• The penetration, to any extent, of the genitalia or anus of a person by an object, being penetration carried out by another person;
• The introduction of any part of the penis of a person into the mouth of another person;
• Fellatio (stimulation of the penis using the tongue or lips);
• Cunnilingus (stimulation of the female genitals using the tongue or lips).

Consent must be given for any of the above sexual acts as well as any kind of sexual touching. If sexual intercourse takes place without consent, the perpetrator can be charged with an act of Sexual Assault, if they touch a person sexually without consent, they can be charged with an Act of Indecency.

When is Consent Negated?

Engaging sexually with another person who cannot freely give consent is a crime. People cannot freely give consent if they are under the influence of substances or if they are asleep or physically helpless and in a range of other circumstances.

The law makes it clear that a person cannot give consent if that consent:

• Is caused by the infliction of violence or force on the person, or on a third person who is present or nearby;
• Is caused by a threat to inflict violence or force on the person, or on a third person who is present or nearby;
• Is caused by the use extortion against the person or another person;
• Is caused by a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person;
• Is caused by the effect of intoxicating liquor, a drug or an anaesthetic;
• Is caused by a mistaken belief as to the identity of that other person;
• Is caused by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person;
• Is caused by the abuse by the other person of his or her position of authority over, or professional or other trust in relation to, the person;
• Is caused by the person’s physical helplessness or mental incapacity to understand the nature of the act in relation to which the consent is given;
• Is caused by the unlawful detention of the person (see s 67 Crimes Act 1900 (ACT)).

If consent is given in the above circumstances, the person’s consent is automatically negated and the person engaging with the person who is unable to consent, is committing a criminal offence.

What is the Age of Consent?

Sexual assault legislation differs in every state in Australia, in the ACT the age of consent in 16. Anyone who has sex with someone under the age of 16 is committing a criminal offence. There is a defence to prosecution clause in the ACT legislation which can be enacted when there are two young people engaging in sexual intercourse and they are over the age of 10 and within two years of each other (for example, a 14 and a 16 year old), or in the instance that reasonable grounds can be established that the defendant believed the person they were having sexual contact with was 16 or older. In each of these instances however, each person must give consent, otherwise the defendant is considered to have committed a sexual offence.

There is no defence clause for a person who engages sexually with a child under the age of 10. Anyone who engages sexually with a child under the age of 10 is committing a criminal offence.

Other Sexual Offences

There are a range of other sexual offences which are included in ACT legislation. A person can be criminally prosecuted for the following offences:

• Engaging in sexual intercourse or sexual contact with a young person who is under special care;
• Engaging in sexual intercourse or sexual contact with their daughter or son, step-child, grand-child, great-grand-child or other lineal ancestor or lineal descendant;
• Engaging in sexual intercourse with their sister, half-sister, brother or half-brother;
• Abducting or unlawfully detaining someone with the intent of engaging in sexual intercourse with them;
• Using a child for the production of child pornography etc;
• Trading in child pornography;
• Possessing child pornography;
• Using the internet or electronic means to suggest to a young person under the age of 16 that they take part in or watch someone else taking part in an act of a sexual nature (see s 55A - 65 Crimes Act 1900).

The impacts and effects of sexual assault and abuse can be very broad-ranging. If you have experienced any form of sexual assault or abuse, please do not hesitate to contact the CRCC for support, we can offer you crisis support, counselling or if you prefer, an appropriate referral.

Stalking

Stalking is also a crime in the ACT. A person who stalks another person with the intent to harass, cause apprehension, fear or harm in the person they are stalking - or someone else - can be charged with a stalking offence. Stalking involves any of these forms of intent and boundary violations where the offender, on two or more occasions:

• Follows or approaches their victim;
• Loiters near the victim, watches, approaches or enters the victim’s home or workplace or other location;
• Keeps the victim under surveillance;
• Interferes with property in the possession of victim;
• Gives or sends offensive material to the victim or leaves offensive material where it is likely to be found by, given to or brought to their victim’s attention;
• Telephones, sends electronic messages to or otherwise contacts the victim;
• Sends electronic messages about the victim to anybody else;
• Makes electronic messages about the stalked person available to anybody else;
• Acts covertly in a way that could reasonably be expected to arouse apprehension or fear in their victim;
• Engages in conduct amounting to intimidation, harassment or molestation of the victim (see s 35 Crimes Act 1900).

Stalking can produce an intense amount of fear in the person being stalked. If you are experiencing stalking, it is important to know that help is available. Please do not hesitate to contact police on 000 if you are concerned about your immediate safety, and you are welcome to use the CRCC crisis line for support and to access counselling services.

Sexual Harrassment

In Australia, the Sex Discrimination Act makes sexual harassment unlawful in the workplace, in education, employment and in accommodation and in the provision of goods and services. Sexual harassment can come in many forms and can occur in the workplace, at school, university or other education institutions and within the community. 1 in 5 women and 1 in 20 men experience some form of sexual harassment in the workplace (Australian Human Rights Commission, 2008). The Australian Human Rights Commission (2013) identifies that sexual harassment can occur on one or more occasions, be direct or indirect, and may include:

• staring or leering;
• unnecessary familiarity, such as deliberately brushing up against a person or unwelcome touching;
• suggestive comments or jokes;
• insults or taunts of a sexual nature;
• intrusive questions or statements about another person’s private life;
• displaying posters, magazines or screen savers of a sexual nature;
• sending sexually explicit emails or text messages;
• inappropriate advances on social networking sites;
• accessing sexually explicit internet sites;
• requests for sex or repeated unwanted requests to go out on dates;
• behaviour that may also be considered to be an offence under criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.

By its very nature, sexual harassment is unwanted and unwelcome and can leave a person feeling embarrassed, offended, shocked, humiliated and fearful. Many of the impacts and effects are similar to those experienced by victims/survivors of sexual assault. Sometimes the person subjected to sexual harassment may be so traumatised that they suffer serious emotional consequences and may not be able to perform their job properly or concentrate whilst studying. The study or work environment may be so hostile and intimidating that it causes the person subjected to sexual harassment to leave their job or education and look elsewhere and can be demoralising on everyone within range of the harassment.

People who feel they have been sexually harassed can make a complaint in writing, via email or over the phone to the Australian Human Rights Commission. You can find contact details for the Commission at the back of this booklet in the Contacts section.