The Criminal Law in South Australia is governed by the Criminal Law Consolidation Act. This act makes a number of types of sexual behaviour towards adults offences as well as setting out the penalties for sexual offences against children. The sexual offences against adults that exist in South Australia, and the penalties that apply for them, are set out below.
The most serious of all sexual offences in South Australia is rape. Rape is governed by Section 48 of the Criminal Law Consolidation Act and consists of sexual intercourse with another person without consent, while knowing or being recklessly indifferent as to whether there is consent.
The maximum penalty for rape is life imprisonment.
Sexual intercourse is defined as including any activity, whether heterosexual or homosexual, involving penetration of a person’s vagina, labia majora or anus by any part of another person’s body or by any object or fellatio or cunnilingus (Section 5).
Consent is defined as free and voluntary agreement (Section 46). A person does not consent to sexual activity if:
- They agree because of force applied or threatened or because of a threat to denigrate, humiliate, disgrace or harass them or another person;
- They were unlawfully detained at the time the sexual activity occurred;
- They were asleep or unconscious;
- They so intoxicated as to be incapable of freely and voluntarily agreeing;
- They were affected by a mental, intellectual or physical condition to the point of being unable to effectively consent;
- They were induced to engage in the activity by of a mistaken belief in the identity of the person;
- They were mistaken about the nature of the activity.
A person is guilty of rape if they know that the other person does not consent (or has withdrawn their consent) or are recklessly indifferent as to their consent. Reckless indifferent means a failure to consider the other person’s wishes.
Under Section 47, a person is recklessly indifferent with regard to consent if they:
- Are aware the other person might not be consenting, but continue anyway;
- Are aware the other person might not be consenting and fail to take steps to find out if the other person is consenting;
- Do not give any thought to whether the other person is consenting.
Indecent assault is touching a person sexually without their consent (Section 56). The maximum penalty for indecent assault where the victim is an adult is 8 years imprisonment.
What is ‘indecent’ is determined by the area of the body touched and the nature of the touching.
Procure person for sexual intercourse
It is an offence to procure a person for sexual intercourse using threats, intimidation or by false pretences or other fraudulent means (Section 60). The maximum penalty for this offence when the victim Is an adult is 7 years imprisonment.
Commercial sexual services
A range of offences exists under the Criminal Law Consolidation Act relating to commercial sexual services.
It is an offence to compel a person to provide commercial sexual services (Section 66). The maximum penalty for this is 15 years imprisonment where the victim is an adult. It is also an offence under this provision to use undue influence to get a person to provide commercial sexual services. The maximum penalty for this offence where the victim is an adult is 7 years imprisonment.
It is an offence to offer someone employment knowing that commercial sexual services will be asked for or expected as part of this employment and fail to disclose this information to the victim (Section 67). The maximum penalty for this offence where the victim is an adult is 7 years imprisonment.
Any sexual activity between a person and an animal is an offence under Section 69, punishable by a maximum of 10 years imprisonment.
It is an offence to have sexual intercourse with a close family member (Section 72). The maximum penalty for this is 10 years.
A close family member is defined as a parent, child, sibling (including a half-sibling), grandparent or grandchild. However this definition does not include family members related by adoption or marriage.
Sexual offences are altered and sometimes abolished as social attitudes towards acceptable sexual behavior change. Other sexual offences, such as sodomy, existed in South Australia in the past, but no longer exist.
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