Sexual Assault In Canberra

In the ACT, there are several offences that consist of sexually assaulting an adult. These offences are known as sexual intercourse without consent and sexual assault in the first, second or third degree. The maximum penalty for sexual offences in Canberra ranges from 12 to 20 years imprisonment. This article deals with the various offences involving sexual assault in Canberra and the rest of the ACT.

Sexual intercourse without consent consists of having sex with a person while knowing they do not consent or being reckless as to whether they consent. Sexual assaults in the first, second and third degree are offences where a person uses coercion to achieve sexual intercourse; that is, the offender inflicts harm or threatens to inflict harm if someone does not engage in sexual intercourse with them. The degree is determined by how serious the assault that accompanies the intended sexual intercourse is. 

What is sexual intercourse?

‘Sexual intercourse’ is given a broad interpretation under section 50 of the Crimes Act 1900. It includes:

• The penetration of the genitalia or anus of a person by any part of the body of another person, except where it is carried out for a proper medical purpose or is otherwise authorised by law; or
• The penetration of the genitalia or anus of a person by an object, being penetration carried out by another person, except where it is carried out for a proper medical purpose or is otherwise authorised by law; or
• The introduction of any part of a penis into the mouth of another person; or
• Fellatio; or
• Cunnilingus; or
• The continuation of any of the above.

What is consent?

Section 67 of the Crimes Act states that a person does not consent to sexual intercourse if they consent because of:

• threats of violence or force, public humiliation or disgrace or harassment;
• intoxication;
• a mistaken belief about the identity of the other person;
• a fraudulent misrepresentation by the other person;
• an abuse by the other person of a position of authority over the person;
• their physical helplessness or mental incapacity;
• their unlawful detention.

If a person knows that consent was given because of any of the factors listed above, they will be deemed to know that the other person did not consent to the sexual act.

Sexual intercourse without consent

The offence of sexual intercourse without consent is also known as rape. In the ACT, it is contained in section 54 of the Crimes Act. It carries a maximum penalty of 12 years (or 14 years if the offence is carried out in company with one or more other persons). 

Sexual intercourse without consent is a strictly indictable offence that must be committed to the Supreme Court for finalisation. 

Sexual assault in the first degree

Sexual assault in the first degree occurs where a person:

• Inflicts grievous bodily harm on another person with intent to engage in sexual intercourse with the complainant; or
• Inflicts grievous bodily harm on a person with intent to engage in sexual intercourse with a third person who is present or nearby.

This offence carries a maximum penalty of 17 years imprisonment (or 20 years where the accused acted in company with one or more other persons). 

Sexual assault in the second degree

Sexual assault in the second degree is contained in section 52(1) and 52(2) of the Crimes Act 1900. It occurs when a person:

• Inflicts actual bodily harm on another person with intent to engage in sexual intercourse with them; or
• Inflict actual bodily harm on another person with intent to engage in sexual intercourse with a third person who is present or nearby.

This offence carries a maximum penalty of 14 years imprisonment (or 17 years if committed in company with another person or persons).

Sexual assault in the third degree

Sexual assault in the third degree is contained in section 53(1) and 53(2) of the Crimes Act 1900. It occurs when a person:

• Unlawfully assaults a person with intent to engage in sexual intercourse with them; or
• Threatens to inflict actual bodily harm on a person with intent to engage in sexual intercourse with them; or
• Threatens to inflict grievous bodily harm on a person with intent to engage in sexual intercourse with them; or
• Unlawfully assaults a person with intent to engage in sexual intercourse with a third person who is present or nearby; or
• Threatens to inflict actual bodily harm on a person with intent to engage in sexual intercourse with a third person who is present or nearby; or
• Threatens to inflict grievous bodily harm on a person with intent to engage in sexual intercourse with a third person who is present or nearby.

This offence carries a maximum penalty of imprisonment for 12 years (or 14 if the offender is in company with one or more other persons). 

Jurisdiction

All the offences described above are strictly indictable matters and must be dealt with in the ACT Supreme Court. When a person is charged with one of these offences, they will first have to attend a mention in one of the lower courts (the Magistrates Court if they are an adult or the Children’s Court if they are under 18). The matter will have to go through a number of procedural stages before being committed to the Supreme Court for trial or sentence if there is sufficient evidence to support a finding of guilt. 

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