Sexual offences in Tasmania are governed by the Criminal Code Act 1924. This act covers a range of sexual offences against children as well as sexual assaults against adults. The majority of sexual offences against adults that exist under Tasmanian law relate to non-consensual sexual contact.
Consent is defined as ‘free agreement’ (Section 2A).
A person is taken not to freely agree to an act if they:
- Do not say or do anything to communicate asset;
- Agree or submit because of force or fear of force;
- Agree or submit because of a threat;
- Agree or submit because they are being unlawfully detained;
- Agree or submit because of fraud by the accused;
- Are asleep, unconscious or so affected by alcohol or drugs as to be incapable of consent;
- Are unable to understand the nature of the act.
If there is evidence that a person charged with a sexual offence believed that the other person was consenting, the accused will be found not guilty only if the court is satisfied that they had an honest and reasonable belief that the victim was consenting (Section 14A). A belief in consent is not reasonable if the accused was reckless as to whether or not the other person was consenting or took no reasonable steps to ascertain whether they were consenting. A mistaken belief in consent is not reasonable if the mistake was made due to the accused being voluntarily intoxicated.
It is an offence to have sexual intercourse with a person without that person’s consent (Section 185). Sexual intercourse includes penetration of a person’s vagina, anus or mouth by a penis, a body part other than a penis or an object manipulated by another person. It does not include penetration carried out for medical purposes or other purposes authorised by law (Section 2B).
A non-consensual sexual act that does not include sexual penetration may be charged as indecent assault. Indecent assault is an offence under Section 127 and consists of an assault which is indecent or which is committed in circumstances which are indecent. An assault can be indecent because of the area of the body touched (eg. breasts, genitals, anus) or because of the circumstances of the assault.
The circumstances of an assault can be found to be indecent where there is a sexual connotation to the behaviour when the accused’s motive is considered. This can be the case even where the area of the body touched does not make the assault indecent.
Under Section 133, it is an offence for a person to have sexual intercourse with another person who is their lineal ancestor, lineal descendant or sibling. This is the case regardless of whether or not the other person has consented to sex and regardless of the ages of the participants.
The maximum penalty for all crimes under the Tasmanian Criminal Code Act, except for murder and treason, is imprisonment for 21 years (Section 389). In practice, the penalty imposed for an offence is determined by the circumstances of the offence, the circumstances of the offender and the case law surrounding other offences of a similar nature.
Convictions for sexual assaults
Sexual assaults are among the hardest types of criminal offences to successfully prosecute. Research indicates that the low rate of convictions for sexual assaults can be attributed to the following factors:
- The low rate of reporting of sexual offences;
- The treatment of complainants during trials;
- Distrust of the criminal justice system by complainants;
- Difficulty in obtaining evidence;
- Community belief in myths and stereotypes surrounding sexual assault
Changing conceptions of consent
Conceptualisations of sexual assaults have changed dramatically over time. Sexual assault and rape were historically categorised as property offences as women were considered the property of their father or husband. The rape of a woman made her less valuable and as such was detrimental to her husband or father’s interests. The consent of the woman was typically not considered.
Sexual assaults and rape later came to be viewed as offences committed ‘against the will’ of the victim, who was assumed to be a woman. Consent was considered, but the belief was that a woman who was not consenting would be physically resisting and would likely be physically injured as a result.
The current conception of sexual assault is based on the idea of ‘positive consent’, whereby participants in all consensual sexual activity demonstrate their willingness through words or physical actions. Passive submission to sexual acts does not establish consent. Each participant is required to ensure that the other person is consenting to the sexual activity.
If you require legal advice or assistance please contact Go To Court Lawyers.