There are numerous sexual offences contained withing the Crimes Act, these offences include:
- Sexual Assault
- Aggravated Sexual Assault
- Indecent Assault
- Sexual Touching
- Sexual Intercourse with Child
- Child Pornography
- Possess Child Abuse Material
- Child Grooming
What are the maximum penalties and standard non-parole periods for common sexual offences?
What the prosecution must prove
When an individual is charged with sexual assault it is alleged that they had sexual intercourse without consent of the person and knowing the other person was not consenting.
The prosecution must prove beyond reasonable doubt:
- That, at the time and place alleged, the individual charged had sexual intercourse with the other person;
- That the sexual intercourse was without the other person’s consent; and that the person knew that the other person did not consent.
What is consent
The individual charged does not have to prove that the other person consented; it is for the prosecution to prove beyond reasonable doubt that they did not consent.
A person consents to sexual intercourse if they freely and voluntarily agree to have sexual intercourse with another person. That consent can be given verbally, or expressed by actions.
Similarly, absence of consent does not have to be in words; it also may be communicated in other ways, such as the offering of resistance. Although this is not necessary as the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. Consent that is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily.
The law provides that a person does not consent to sexual intercourse:
- If the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or
- If the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or
- If the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
- If the person consents to the sexual intercourse because the person is unlawfully detained.
What is recklessness?
The prosecution can also prove an individual’s guilty state of mind if they can prove that they were reckless as to whether other person consented to the sexual intercourse. If the person charged was reckless, it is the law that person charged will be taken to know that other person did not consent to the sexual intercourse.
To establish that the person charged was acting recklessly, the prosecution must prove, beyond reasonable doubt, either:
- The person who was charged has a state of mind that was such that they simply failed to consider whether or not the other person was consenting at all, and just went ahead with the act of sexual intercourse. Even though the risk that the other was not consenting would have been obvious to someone with the person charged mental capacity if they had turned their mind to it, or
- The person who was charged had a state of mind that was such that they realised the possibility that the other person was not consenting but went ahead regardless of whether they were consenting or not.
Aggravated sexual assault
In addition, if an individual has been charged with aggravated sexual assault and all three elements have been proved beyond reasonable doubt, a jury will also need to consider whether or not the sexual intercourse without consent was committed in a circumstance of aggravation.
An offence of aggravated sexual assault occurs if once of the criteria under section 61J of the Crimes act has been met.
If a person is charged with indecent assault, it is alleged that they assaulted another person and at the time of or immediately before or after the assault committed an act of indecency on or in the presence of the other person.
The prosecution must prove beyond reasonable doubt:
- That the person charged assaulted the other person
- That the assault was indecent
- If applicable, that immediately before or immediately after that assault the accused committed an act of indecency on/in the presence of the other person
- That the assault was without the consent of the other person
- That person charged knew that other person was not consenting
- Alternatively if it is alleged that the person charged was reckless – that the person charged knew that the other person was not consenting, or they realised that there was a possibility that the other person was not consenting but went ahead anyway, or they did not even think about whether the other person was consenting or not — in other words, they did not care whether the other person was consenting
On 1 December 2018 the offences of Indecent Assault and Aggravated Indecent Assault were replaced with Sexual Touching and Aggravated Sexual Touching.
Possess Child Abuse Material
The Crimes Act contains the following NSW state child abuse material (previously child pornography) offences:
- Using a child to produce child abuse material
- Producing child abuse material
- Disseminating child abuse material
- Possessing child abuse material
Child abuse material is defined as material which depicts or describes in a way that reasonable persons would regard as being, in all the circumstances, offensive:
- A person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse
- A person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons)
- A person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
- The private parts of a person who is, appears to be or is implied to be, a child.
The Criminal Code contains the following Commonwealth child pornography and child abuse material offences:
- Using a postal service for child pornography or child abuse material (maximum penalty of 15 years)
- Possessing, controlling, producing, supplying or obtaining child pornography or child abuse material for use through a postal or similar service (maximum penalty of 15 years)
- Using a carriage service to access, transmit (or cause to be transmitted to himself or herself), make available, publish, distribute, advertise, promote or solicit child pornography or child abuse material
- Possessing, controlling, producing, supplying or obtaining child pornography or child abuse material for use by the offender or another person to commit an offence against noted above (maximum penalty of 15 years).
An aggravated form of each offence is contained the Criminal Code and it has a maximum penalty of 25 years gaol.
When assessing the seriousness of an offence the following factors are relevant:
- Whether actual children were used in the creation of the material.
- The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
- The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
- The number of images or items of material — in a case of possession, the significance lying more in the number of different children depicted.
- In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination.
- In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.
- Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.
- The proximity of the offender’s activities to those responsible for bringing the material into existence.
- The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.
- Whether the offender acted alone or in a collaborative network of like-minded persons.
- Any risk of the material being seen or acquired by vulnerable persons, particularly children.
- Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.