Sexual offences such as indecent assault in the Northern Territory are governed by the Criminal Code Act and the Sentencing Act. The Criminal Code Act sets out the different offences and the maximum penalties that attach to them, while the Sentencing Act sets a mandatory sequencing regime that applies to all sexual offences in the NT.
The most serious sexual offence in the NT is sexual intercourse or gross indecency without consent (Section 192), which carries a maximum penalty of life imprisonment.
Sex without consent
Sexual intercourse without consent is known as rape in common law jurisdictions. A person commits sexual intercourse without consent if the person:
- Has sexual intercourse with a person; and
- Knows the person is not consenting; or
- Is reckless as to the lack of consent.
Sexual intercourse is defined in the Criminal Code Act as:
- Insertion of a penis into the vagina, anus or mouth of another person;
- The insertion of any body part or object into the vagina or anus of another person (for a non-medical purpose);
- Cunnilingus or fellatio.
It’s worth noting that this definition differs from the definition of rape in most common law jurisdictions, which encompasses only penetrative sex and not oral sex.
The offence of sex without consent is made out in circumstances where a person:
- Submits to sex because they are pressured to do so by threats or unlawfully detained;
- Is sleeping, unconscious or so affected by alcohol or drugs that they are unable to consent to sex;
- Is mistaken about or unable to understand the sexual nature of the act;
The maximum penalty for this offence is life imprisonment.
Gross indecency without consent
Gross indecency is an outdated term which historically referred to acts of consensual sex between men. It is not defined in the NT Criminal Code Act, but the contemporary common law definition of gross indecency is ‘actions contrary to the ordinary standards of morality.’
Non-consensual sex acts that fall short of sexual intercourse may be charged as Gross Indecency Without Consent or alternately as Indecent Assault, depending on the circumstances of the offending and at the discretion of the prosecution.
The maximum penalty for gross indecency without consent is 14 years imprisonment.
How consent is determined
Section 192A of the Criminal Code Act contains a direction to be given to the jury in sexual offence trials. This direction is that a person is not to be regarded as having consented to sex only because:
- The person was not physically resisting;
- The person did not sustain any injury; or
- The person had on another occasion consented to sex with the accused.
This direction exists to ensure that the realities of sexual offending are appreciated by jurors. There can be a perception that rapes occur violently and between strangers. The reality is that they more commonly occur in the context of a relationship or between people who know each other.
Indecent assaults and mandatory sentencing
An assault accompanied by a non-consensual sexual act is indecent assault (Criminal Code Act, Section 188(2)(k)). Indecent assaults are the most commonly charged sexual offence and include acts like the non-consensual touching of breasts, whether inside or outside of clothing.
In the Northern Territory, when a person is found guilty of any sexual offence, the court must record a conviction and impose a sentence of actual (ie. not suspended) imprisonment (Sentencing Act, Section 78F). This includes indecent assaults, sexual offences against children and other sexual offences.
Division 6A of the Criminal Code Act provides for offenders to be prosecuted for a range of offences in the category of ‘sexual servitude.’ This Division was added to the Criminal Code Act in 2002 after the discovery of an international prostitution ring operating in Australia. At that time, no such operation had been discovered in the Northern Territory and the Division was incorporated into the legislation in case such a situation ever arose.
Sexual servitude is defined as the state of being forced to provide sexual services through the use of force or threats. It is an offence under this Division to do any of the following:
- Causing a person to enter into sexual servitude (Section 202B);
- Conduct business involving sexual servitude (Section 202C);
- Use deception to recruit for sexual services (section 202D);
Miscellaneous other sexual offences
Other sexual offences which exist in the Northern Territory and to which the mandatory sentencing regime applies include incest (Criminal Code Act, Section 134) and bestiality (Section 138).