Sexual Offences Against Adults In Perth
Sexual offences against adults in Perth and elsewhere in Western Australia are contained in the Criminal Code Compilation Act 1913. The lack of consent is an essential element in most sexual offences against adults, with the notable exception of incest. This article outlines the law surrounding sexual offences against adults in Perth and the rest of WA.
Consent is defined in Section 319 of the act and is ‘free and voluntary agreement’. A person’s consent is taken not to be free and voluntary if it was obtained through force, threats, intimidation, fraud or deceit.
Section 319 specifies that a person is not to be taken to have consented to a sexual act simply because they do not offer physical resistance.
Sexual offences involving penetration
Sexual penetration without consent is an offence with a maximum penalty of 14 years imprisonment. It is contained in section 325.
Sexual penetration can mean penetration of a vagina, anus or mouth by a penis or the penetration of a vagina or anus by another body part or by an object manipulated by another person. Sexual penetration includes fellatio and cunnilingus. (Section 319).
If sexual penetration without consent occurs in circumstances of aggravation, the maximum penalty is increased to 20 years imprisonment. Section 319 provides that circumstances of aggravation are:
- The accused is or pretends to be armed with a weapon;
- The accused is in the company of another person or persons;
- The accused does bodily harm to another person;
- The accused acts in a way that substantially degrades or humiliates the victim;
- The accused makes threats to kill the victim;
- The victim is under 16.
Indecent assault occurs when a person touches the breasts, genitals or anus of another person without their consent or where a person commits an assault in indecent circumstances. Indecent assault in WA attracts a maximum penalty of imprisonment for five years (Section 323).
Mistaken belief in consent
If a person accused of a sexual offence under Section 325, 323 or 327 held an honest and reasonable belief that the alleged victim was consenting to the act, they can argue the defence of mistake of fact. This defence is set out in section 24. For the defence of mistake of fact to succeed, there must have been reasonable grounds for the mistaken belief.
Under Section 327, it is an offence punishable by up to 14 years imprisonment to coerce a person to take part in sexual behaviour. Coerced sexual behaviour may involve forcing a person to have sex with a third person, forcing a person to masturbate or forcing a person to take part in sexual activity with an animal.
If sexual coercion is committed under circumstances of aggravation, the maximum penalty is imprisonment for 20 years.
Incest is the only sexual offence against an adult in WA that does not involve a lack of consent. It is an offence under Section 329 to engage in sexual penetration with a person who is one’s lineal relative. This includes parents, siblings, half-siblings, children, grandchildren and grandparents, including adoptive relationships.
Sexual offences against incapable persons
Western Australian law also contains a suite of offences relating to sexual behaviour with incapable persons. An incapable person is a person who is mentally impaired to the point of being unable to understanding the nature of the act or of guarding themself against sexual exploitation.
It is an offence to sexually penetrate a person knowing them to be an incapable person or to procure, incite or encourage an incapable person to sexual behaviour. It is an offence to indecently deal with a person knowing them to be incapable or to procure, incite or encourage an incapable person to do an indecent act, or to indecently record such a person.
However, it is a defence to any of these offences if the accused was married to the incapable person at the time of the alleged offence.
Another sexual offence against adults in Perth and WA is conducting a business involving compelling another person to provide sexual services. This offence is contained in a section 331C and attracts a maximum penalty of 14 years imprisonment.
It is also an offence to offer someone employment knowing that the employment will involve giving commercial sexual services without disclosing this to the person. This offence carries a maximum penalty of imprisonment for seven years where the victim is an adult and 20 years where they are a juvenile or an incapable person.
If you need legal advice or representation in relation to sexual offences against adults or in any other legal matter please contact Go To Court Lawyers.