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Sexual offences

07 Sep 2016 - 15:47 | Version 10 |

Contributed by JonathonHunyor and current to 1 May 2016

Sexual offences raise a range of potentially complex issues, including specific evidentiary provisions, procedural rules, sentencing and reporting regimes and a regime for ongoing supervision or detention of serious sex offenders.

Offences

Sexual assaults

The most serious of sexual offences are to be found in Part VI of the Criminal Code Act (CCA) under the heading, 'Offences against the person and related matters'.

Rape

The offence known as rape in many jurisdictions is known in the Northern Territory as sexual intercourse without consent [CCA s.192].

Sexual intercourse

The legal definition of sexual intercourse is a very wide one. It includes the insertion of the penis to any extent in the vagina, anus or mouth. It includes the insertion to any extent of any part of the body or an object into the vagina or anus. It also includes the acts of cunnilingus or fellatio (oral sex). The definition of the vagina includes the external female genitalia so the penis, other body part or object need not be inserted into the vaginal canal for an offence to occur [CCA s.1].

Consent means free and voluntary agreement. The CCA details some circumstances when there is no consent [CCA s.192(2)], including where:
  • the person submits because of force, fear of force or fear of harm of any type to themself or another person
  • the person submits because they are unlawfully detained
  • the person is asleep, unconscious or so affected by alcohol or another drug as to be incapable of freely agreeing
  • the person is incapable of understanding the sexual nature of the act
  • the person is mistaken about the sexual nature of the act or the identity of the other person
  • the person mistakenly believes that the act is for medical or hygienic purposes
  • the person submits because of a false representation as to the nature or purpose of the act.
A person is guilty of the crime if the person has sexual intercrouse without the other person's consent and knew or was reckless as to the lack of consent [CCA s.192(3)]. The concept of recklessness is expanded upon at section 192(4A) of the CCA as including not giving any thought to whether or not the other person is consenting.

Marriage was once a defence to rape under the common law but is not a defence to section 192 of the CCA.

The maximum penalty for sexual intercourse without consent (rape) is life imprisonment. Although no minimum term is set, as with all prescribed sexual offences, once found guilty an offender must be sentenced to a term of actual imprisonment [Sentencing Act s.78F]. If the sentencing court imposes a non-parole period, any non-parole period must be not less than 70% of the head sentence [Sentencing Act s.55].

The maximum penalty for attempted rape is seven years where the victim is an adult [CCA s.192(5)], 14 years if the victim is under the age of 16 years [s.192(6)] or is caused harm [s.192(7)]; and 17 years if serious harm is caused to the victim [s.192(8)].

Gross indecency

It is an offence to commit an act of gross indecency upon another person without the consent of that person [CCA s.192(4)]. Gross indecency is not defined by the CCA but has been found by the courts to be a phrase that should be given its ordinary and popular meaning ... that is unbecoming or offensive to common propriety [Purvis v Inglis (1915) 34 NZLR 1051; Stokes v Bragg [1955] SASR 311]. Thus, in each particular case, the jury must decide whether an act is grossly indecent. There is a difference between an indecent act and a grossly indecent act, but there is no clear guide about the nature of the difference. The provisions of free agreement and consent also apply to the offence of gross indecency. The maximum penalty for this offence is 14 years imprisonment.

Indecent assault

The offence of indecent assault [CCA s.188(2)(k)] has a potentially broad scope, covering acts such as touching a person's breast or buttocks without their consent.

The word indecent is not defined by the CCA, but, as with gross indecency, courts have found the word is to be given its ordinary and popular meaning [Purves v Inglis (1915) 34 NZLR 1051; Stokes v Bragg [1955] SASR 311]. Indecent acts are as various as human imagination can make them [R v Coffey [2003] VSCA 155; (2003) 6 VR 543; 143 A Crim R 235], but note that 'indecency' requires a certain threshold to be reached and also requires a sexual connotation. In Ryan v Malagorski [2013] NTSC 17, Kelly J held indecent 'means unseemly, unbecoming or offensive to common [propriety], something that would offend the modesty of the average person, and it must have a sexual connotation.' (at [12]). See also Sabet v The Queen [2011] VSCA 124; Drago v The Queen (1992) 8 WAR 488.

Coerced sexual self-manipulation

It is an offence to force a person to insert an object into their own vagina or anus [CCA s.192B]. This is called coerced self-manipulation. The offence is committed if the self-manipulation is proved to have been forced in circumstances where the person cannot reasonably be expected to resist. The maximum penalty for this offence is 17 years imprisonment.

Offences against morality

A number of other significant sexual offences are to be found under the heading 'Offences Against Morality' in Division 2 of Part V of the CCA. Note that consent is not a defence to a crime contained in this Division [CCA s.139A].

Child abuse material

More commonly known as child pornography, child abuse material is defined at section 125A of the CCA as material that depicts, describes or represents in a manner likely to cause offence to a reasonable adult, a person who is a child or who appears to be a child engaging in sexual activity, in a sexual, offensive or demeaning context or being subject to torture, cruelty or abuse. It does not include material that has been classified under the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (other than as 'RC').

The most common form of child abuse material prosecuted is photographic imagery downloaded from internet child pornography sites.

It is an offence to possess such material [CCA s.125B]. Under earlier similar legislation relating to child pornography, the maximum penalty for the offence was two years imprisonment. The maximum penalty is now 10 years imprisonment.

The distribution, production and sale of such material is dealt with under the same section and carries the same maximum penalty.

Use of a child for production of child abuse material or pornographic or abusive performance

A person who uses a child or someone who appears to be a child for the production of child abuse material or for a pornographic or abusive performance is liable to imprisonment for 14 years [CCA s.125E].

Indecent articles

Section 125C makes it an offence to publish an indecent article. The offence is punishable by imprisonment for two years.

An indecent article means an article that:

(a), promotes crime or violence or incites or instructs in matters of crime or violence;
(b), depicts, describes or represents, in a manner that is likely to cause offence to a reasonable adult -
(i) the use of violence or coercion to compel a person to participate in or submit to sexual conduct;
(ii) sexual conduct with or on the body of a dead person;
(iii), the use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct;
(iv), bestiality;
(v), acts of torture or the infliction of extreme violence or extreme cruelty; or
(vi), a person whether or not engaged in sexual activity who is a child who has not attained the age of 16 years or who looks like a child who has not attained that age.

Carnal knowledge

The offence popularly known as carnal knowledge is to be found at section 127 of the CCA. Any person who has sexual intercourse with or commits any act of gross indecency with a child under the age of 16 years, is guilty of a crime. The maximum penalty for this offence is 16 years imprisonment.

The maximum penalty is 20 years imprisonment if the offence is aggravated by any of the following circumstances:
  • the offender is in the company of another person
  • the child is under the care of the offender
  • the child has a serious physical disability or serious intellectual disability
  • the offender took advantage of the child being under the influence of alcohol or a drug in order to commit the offence.
If the child is under the age of 10 years, the offender is liable to imprisonment for 25 years.

It is a defence to prove that the child was of or above the age of 14 years and that the accused person believed on reasonable grounds that the child was of or above the age of 16 years [CCA s.127(4)].

The legislation does not appear to make any concessions which would allow for persons under the age of 16 to have sexual intercourse with each other and not be potentially open to prosecution.

Most importantly, consent is not a defence to this crime.

Child over 16 in special care

It is an offence for an adult to have sexual intercourse or commit an act of gross indecency upon a child over 16 but under 18 if the child is under the person's special care. Persons having this special care of such a child include step-parents, guardians, foster parents, school teachers, religious instructors, music instructors and work supervisors [CCA s.128].

It is a defence to this offence to be married or in a de facto relationship with the child.

Attempt to procure

It is an offence to attempt to procure (to persuade, influence or 'recruit') a child under 16 years of age to have sexual intercourse or commit, perform or engage in an act of gross indecency. The offence carries a penalty of three years imprisonment or, where the offender is over 18 years of age, five years imprisonment [CCA s.131]. A defendant has a defence if they prove the child was 14 or older and the defendant believed, on reasonable grounds, that the person was over 16 years of age.

The offence of actually procuring, rather than attempting to procure, a child is a separate offence called indecent dealing with a child under the age of 16 years [CCA s.132 (2) (d)] (see Indecent dealing with a child under 16 years).

Sexual relationship with a child

It is an offence to maintain a sexual relationship with a child under the age of 16 years [CCA s.131A(2)]. The prosecution must prove that the offender has, as an adult, committed an offence of a sexual nature on 3 or more occasions [CCA s.131A(3)], but does not have to prove the exact dates and circumstances of each offence. A victim merely has to establish the conduct took place regularly or at periodic intervals, not the particulars of the offence, dates or locations but they have to be able to describe each event with sufficient particularity. This provision is particularly relevant to a victim who has been sexually abused over a long period of time.

The maximum penalty for this offence is seven years imprisonment [CCA s.131A (2)]. However, if the sexual acts when committed on one occasion carry a penalty of between seven and 20 years, the maximum penalty is 20 years [CCA 131A (4)]. Further, if one of the offences includes an attempted rape where serious harm is caused or sexual self-manipulation is coerced or the maximum period of imprisonment for the offence of a sexual nature is more than 20 years then the maximum term of imprisonment becomes life imprisonment.

A person who is charged with maintaining an unlawful sexual relationship with a child under 16 years can still be found guilty of single offences if separate charges are laid and evidence of dates and details provided [CCA s.131A (7)]. If the person is convicted of both the single offence and of maintaining an unlawful sexual relationship, sentences are to be served concurrently [CCA s.131A (8)]. A person has a defence to this charge if they believe, on reasonable grounds, the child was over the age of 16 years and the child was in fact over the age of 14 years [CCA s.131A (6)].

Indecent dealing with a child under 16 years

The offence of indecently dealing with a child under 16 years covers a wide range of activities and would appear to include those indecent acts committed upon or with children that are not covered by the definitions of sexual intercourse or gross indecency without consent. Once again the term indecent is given its ordinary and popular meaning but will require a sexual connotation.

According to the CCA, several different kinds of acts are covered by this offence [CCA s.132], including:
  • indecently dealing with a child under the age of 16 years
  • permitting to be indecently dealt with by a child under the age of 16 years
  • exposing a child under the age of 16 years to an indecent act by the offender or any other person
  • procuring a child under the age of 16 years to perform an indecent act
  • without legitimate reason, intentionally exposing a child under the age of 16 years to an indecent object or indecent film, video tape, audio tape, photograph or book
  • without legitimate reason, intentionally and unlawfully taking or recording, by means of any device, an indecent visual image of a child under the age of 16 years.
The term deal with is defined to include any act that would constitute an assault.

The relevant penalties are:
  • if the child is under 16 years old, 10 years imprisonment
  • if the child is under 10 years old, 14 years imprisonment.
A person has a defence to an offence under this section if they believe, on reasonable grounds, that the victim was 16 years or older and the child is in fact over 14 years. This defence does not, however, apply if the victim was a lineal descendant of the person.

Incest

Section 134 of the CCA states that 'Any person who has sexual intercourse with another person who is a close family member is guilty of a crime'. The maximum penalty for this offence is 14 years. If the close family member is between the age of 10 and 16, the offender is liable to imprisonment for 20 years. If the close family member is under the age of 10 years, the maximum penalty rises to 25 years. It is a defence to a charge of this crime to prove that the accused was acting under the coercion of the close family member.

Close family member means a parent or grand parent, a child or other lineal descendant, or a brother, sister, half-brother or half-sister.

Bestiality

Engaging in sexual activity with an animal is an offence known as bestiality. Bestiality involves the insertion of the person's penis, to any extent, into the genital passage or anus of an animal or permitting an animal to insert its penis into a person's vagina or anus [CCA s.138]. The maximum penalty is imprisonment for three years [CCA s.138].

Rules of Evidence

Special rules of evidence apply to sexual offences and in particular to the evidence of complainants.

With the increase in penalties for some sexual offences, a growing number of matters cannot be heard in the Magistrates Court. This means that more sexual matters are now the subject of committal hearings (now known as 'preliminary examinations' under the Justices Act) and Supreme Court trials.

Recently, the rules of evidence have been amended to make it easier for children to give evidence in relation to alleged sexual offences.

Alleged victims and child witnesses at preliminary examination/committal

In cases involving sexual offences, children and alleged victims are ''protected witnesses": they are not required to attend a preliminary examination and cannot be examined or cross-examined at a preliminary examination [Justices Act s.105L].

Vulnerable witnesses

Any complainant who is the alleged victim of a sexual offence, whether they are an adult or a child, is regarded as a vulnerable witness [Evidence Act s.21A]. When the complainant gives evidence, the court must be closed [Evidence Act s.21F]. The complainant can choose to give their evidence from outside the courtroom by means of closed circuit TV. Alternatively, the witness may use a screen, partition or one-way glass to obscure the witness's view of a party to whom the evidence relates.

The court may only decline to allow the vulnerable witness the use of special arrangements if it decides that it is not in the interests of justice to do so or the urgency of the proceedings makes it inappropriate to make the necessary arrangements.

Children and people who suffer from an intellectual disability are a special category of vulnerable witness. Section 21B of the Evidence Act allows for their evidence to be pre-recorded in addition to the aforementioned protections. In practice, children are interviewed by police about the sexual offence on video and if that is done in proper admissible form, it may be used as the child's evidence-in-chief. This is referred to as a 'CFI' or Child Forensic Interview. The child may then be cross-examined by defence counsel. Alternatively, the whole of the child's evidence may be fully pre-recorded at a special hearing and subsequently played at trial before the jury.

Special principles have also been enshrined in legislation requiring courts to take measures to limit the trauma suffered by child witnesses and to ensure they are treated with dignity, respect and compassion and are not intimidated when giving evidence: see Evidence Act s.21D.

The evidence of a child witness may also be bolstered by the use of a special exception to the rule against hearsay evidence. This exception is to be found at section 26E of the Evidence Act and allows a court to admit evidence of a child's statement to another person as evidence of the facts in issue if the court considers the evidence is of sufficient probative value as to justify its admission. Importantly, an accused person cannot be convicted solely on the basis of hearsay evidence admitted under this provision [s.26E(3)].

Time limits and complainant's sexual history

Further rules of evidence specific to sexual offences are set out in the Sexual Offences (Evidence and Procedure) Act.

Trials are to be commenced within three months of the matter first being mentioned in court. This is often difficult to achieve in reality; however, the court has power to grant extensions and regularly does.

In most cases, a court is not permitted to hear evidence about a complainant's general reputation as to chastity or their sexual activities with any other person. The court can, however, allow such evidence to be given where it can be shown to have substantial relevance to the facts in issue. Such evidence will also be likely to be permitted if there are special circumstances which would suggest that the evidence would be likely to affect confidence in the reliability of the evidence of the complainant [Sexual Offences (Evidence and Procedure) Act s.4].

Unrepresented defendants

An unrepresented defendant is not permitted to cross-examine a complainant directly but must put their questions to the complainant via the court, usually via the judge or magistrate [Sexual Offences (Evidence and Procedure) Act s.5].

Advice for complainants

It is important for a rape victim to undergo a medical examination as soon as possible to:
  • determine if there has been any injury, that may not be readily apparent
  • test for a sexually transmitted disease and/or unwanted pregnancy
  • collect medical evidence for possible prosecution.
A victim who may wish to give evidence is asked to undergo a complete medical examination, which may involve a pelvic (internal) examination, the collection of specimens for laboratory tests and the photographing of injuries relating to the offence. The collection of specimens may involve combing pubic hair and taking vaginal or anal swabs to test for the presence of semen. Photographs may be taken of any injuries to the face, body, vaginal or anal area.

A victim can be accompanied through the medical examination by a friend, social worker or nurse. They can also request total privacy in treatment, can refuse the collection of medical evidence, and they are, on asking, entitled to receive a reason for every test and procedure carried out.

A person who has been sexually assaulted or knows someone who has been sexually assaulted may be uncertain about whether to report the matter to the police, or whether they would be prepared to give evidence in court. These decisions are difficult ones that can only be made by the person involved, although taking to an experienced counsellor, such as a Domestic Violence Counsellor (see Contact points) or a lawyer, may be of some help.

Reporting and ongoing detention regimes for sex offenders

Note that convicted sex offenders may be subject to ongoing reporting obligations under the Child Protection (Offender Reporting and Registration) Act 2005 (NT) if they have been sentenced for a 'reportable offence' or have been made the subject of an offender reporting order by a court. The regime creates a number of offences, including a failure to comply with reporting obligations [s.48] or furnishing false or misleading information [s.49].

Serious sex offenders can be made subject if ongoing detention or supervision orders (ie beyond the end of their sentence) under the Serious Sex Offenders Act (NT) if they are found to be a 'serious danger to the community' unless they are subject to such order.

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