The Crimes Act 1900 contains a range of sexual offences against adults. All sexual offences against adults carry terms of imprisonment. Unlike sexual offences against children, most sexual offences against adults are based on the non-existence of consent by the victim. The exception to this is the offence of incest, which is a crime regardless of the consent of the parties.
Section 61HE of the Crimes Act 1900 contains the definition of consent for the purposes of sexual offences against adults. Under this provision, consent means free and voluntary agreement.
The act states that a person does not validly consent if the person:
- Lacks capacity to consent because of age or cognitive incapacity;
- Is unconscious or asleep;
- Consents because of threats or terror;
- Consents because they are unlawfully detained;
Historically, the law of rape applied only to penetration of a vagina by a penis. In the last 30 years, all Australian states and territories have broadened the definition of sexual intercourse to cover anal and oral intercourse and penetration by an object or body part other than a penis. The law now recognises that any non-consensual sexual penetration is rape and that men and boys can also be raped.
Under Section 61I of the Crimes Act, a person who has sexual intercourse with another person without the other person’s consent commits the crime of sexual assault, which is punishable by a maximum of 14 years imprisonment. This is crime is known as rape or sex without consent in other jurisdictions.
If sexual assault is committed in circumstances of aggravation, the maximum penalty that applies is imprisonment for 20 years. Circumstances of aggravation include the infliction or threat of bodily harm, the victim having a serious physical disability or cognitive impairment, or the offender being in company with another person.
Under Section 61KC, a person commits an offence if, knowing the other person does not consent, the person:
- sexually touches the victim;
- incites the other person to sexually touch them;
- incites a third person to sexually touch the victim;
- incites the victim to sexually touch a third person.
The maximum penalty for this offence is imprisonment for five years.
The offence is aggravated if the victim is under the authority of the alleged offender, the offender is in company with another person or the victim has a serious physical or cognitive disability.
Under Section 61KE a person commits an offence if they carry out a sexual act without the consent of the other person. A sexual act can be carried out with or towards the victim or a third person. The maximum penalty for this offence is imprisonment for 18 months.
Assault with intent to have sexual intercourse
Under Section 61K a person commits an offence if they intentionally or recklessly inflict, or threaten to inflict, actual bodily harm on a person with intent to have sexual intercourse. The maximum penalty for this offence is imprisonment for 20 years.
Under Section 78A, it is an offence for a person to have sexual intercourse with a close family member, including a parent, child, sibling, grandparent or grandchild. The maximum penalty for this offence, when the offender is aged over 16, is imprisonment for eight years.
It is a defence to a charge of incest if the offender did not know that the other person was a close family member. However, it is not a defence if the other person consented. Incest is the only one of all sexual offences against adults where consent is irrelevant.
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