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A brief introduction to the different kinds of Sexual Offences

There are several Sexual Offences under the Criminal Law in Queensland. It includes different forms of sexual assault ranging from those sexual offences wherein absence of consent is an element of the crime and sexual offences that do not need the said absence of consent.

In Queensland, the governing law for these Sexual Offences is the Criminal Code Act 1899. Chapter 32 of the said Act provides for the various forms of sexual assault, including the definition of some of the technical terms, penalties and the offence itself.

I. Sexual Offences without the consent of the Victim

Crime of Rape

Under the Code (Qld) section 349, the crime of rape is committed by any person against another under any of the following circumstances:

Under the Code (Qld) section 349, the crime of rape is committed by any person against another under any of the following circumstances:

a. The said person had carnal knowledge with another person without the consent of the latter;
b. The said person penetrates, to any extent, the vulva, vagina or anus of the other person with an object, thing, another part of the body of the person that is not his penis, without the consent of the latter;
c. The said person penetrates the mouth of the other person to any extent using his penis and with the consent of the latter.

The term ‘Carnal Knowledge’ as used in the above definition includes sodomy, and it is defined under the Criminal Code (Qld) Section 6 as complete upon penetration to any extent. This means that even if the penis only touched the labia majora, the law treats the same as a complete sexual penetration.

However, under section 347 of the Criminal Code (Qld), the term ‘penetrate’ does not include those penetration used in a proper medical purpose as well as hygienic or law enforcement purposes.

Given the above definition, rape in Queensland rape may be committed by either male or female, except in those cases where penile penetration is involved, against a male or female. It is a type of crime which involves non-consensual penetration of the vulva, vagina or anus. Rape is also committed by penile penetration of the mouth of either a male or female victim.

The maximum penalty for rape in Queensland is Life Imprisonment. Non-consensual sexual offences without any penetration are treated as indecent assault, and it is punishable by 10 years of imprisonment. Addition penalties may be imposed if the circumstances of aggravation are present under the Code (Qld) s 352(2), (3).

If the conduct of the accused leads to contact between his genitalia and the victim or any part of the mouth of the latter, the penalty is increased to 14 years of imprisonment. It may even be further increased to life imprisonment if the accused, in the commission of the crime, is or pretended to be armed with a weapon, or he did the sexual assault with another person, or if the assault involves non-penile penetration of the vulva, vagina or anus.

Consent under the law

Consent is defined under section 348 (2) of the Criminal Code (Qld). It states that consent is freely and voluntarily given by a person having a cognitive capacity to give such consent. Subsequently, the same section 348 under paragraph 2 of the Code (Qld) provided that a person did not give his consent freely and voluntarily if the same is obtained by any of the following means:

(a) Force;
(b) Threat or intimidation;
(c) Fear of bodily harm;
(d) Exercise of authority;
(e) False and fraudulent representation;
(f) Mistaken belief.

Paragraph 3 of section 348 provides that children under the age of 12 years old are not capable of giving their consent.

Cognitive Capacity is Absent

Thus, victims who lack the cognitive capacity to give their consent cannot be considered to have voluntarily or freely given their Consent. In the case of Francis [1993] 2 Qd R 300, the Court held that rape is committed if a man had sexual intercourse with a woman who is incapable of deciding to give her consent due to sleep or intoxication.

Likewise, a five-year-old child who cannot properly comprehend his situation is considered to be unable to voluntarily and freely give his consent and the element of ‘absence of consent’ can be established successfully as what has transpired in the case of Roden (1981) 4 A Crim R 166.

Threat and Coercion vitiates consent

Establishing the free and voluntary giving of consent cannot be attained if it is clear that coercion and threat are employed in committing a sexual offence. The code is silent as to the guidelines in establishing the degree of coercion and threat that needs to be employed to ascertain that the victim did not give his consent freely and voluntarily.

However in the case of P S Shaw [1995] 2 Qd R 97 the Court elucidated that the threats must be substantial to intimidate the victim and to establish that the consent of the latter was not freely and voluntarily obtained. The accused in the said case was convicted for raping his sister-in-law after threatening her that he would not let her return to their house and subject her to future sexual abuse.

Deceit and Fraudulent Means

Consent is also not freely and voluntarily given if it is attained by fraudulent means. Under this circumstance, the victim is led to believe that the sexual act is different. In the case of Williams [1923] 1 KB 340, the accused, who is a singing teacher, was able to have sexual intercourse with his pupil when he induced the latter and represented that the sexual act is a method that will improve her breathing.

The Code (Qld) also provides that consent of the victim is not freely or voluntarily given if the accused pretended to be the ‘sexual partner’ of the victim and induced the victim to believe on that fact. If the sexual assault was committed by use of this ‘Personation’ the victim cannot be considered to have given voluntary and free consent. Thus in the case of Pryor (2001) 124 A Crim R 22, the victim would not have sexual intercourse with the accused if the latter did not represent himself to be the sexual partner of the victim.

It was found out that his acts of unlawfully entering the bedroom of the victim at the time where the real sexual partner of the victim would enter and have intercourse with the victim is a clear act of ‘personation’ or pretending to be the person who is the sexual partner of the victim. Personation under the Code (Qld) is a situation where in the consent of the victim was given in mistaken belief, as induced by the accused, that the latter is the sexual partner of the victim.

Sexual Offence is still committed in instances where the victim withdraws consent. Even if the initial penetration was performed under the consent of the accused and the latter, during the intercourse, withdraws consent a sexual offence is still deemed committed. 

Evidence

The Crime of Rape in Queensland is a serious offence. Thus, the Courts introduced impartiality in determining whether the victim gave consent in the said act. The behaviour of the victim is gauged at the start of the filing of the complaint. Whether an early complaint is filed after the time when the offence was committed. There are also special rules in which the evidence must be corroborated, and it has limited admissibility with regards to the reputation and experience of the victim.

First Reasonable Opportunity to file Complaint

Non-filing of a complaint at the first reasonable opportunity on the part of the victim does not equate to consent to the sexual act. The High Court in Kilby [1973] 129 CLR 460 declared that failure to file a fresh complaint does not indicate that there is evidence of consent, rather it is a matter to be decided by the jury in weighing the consistency and credibility of the evidence of the victim. Evidence of Complaint under the Criminal Law (Sexual Offences) Act 1978 s 4A is generally admissible, and the court may only exclude evidence if it is unfair to the defendant.

Corroboration of Evidence

On the other hand, corroborative evidence is used to support and strengthen the main evidence to make it more probable and reasonable. Given the serious and grave nature of the offence, corroboration of evidence is important to prove the guilt beyond a reasonable doubt. However, the jury and the court is not bound to require corroboration of evidence in order to hold the guilt of the accused except if palpable and blatant miscarriage of justice will be committed.

Indecent Assault

Indecent assault is defined under section 352 of the Criminal Code Act 1899 (Qld). It is committed by any person who unlawfully and indecently assaulted another person or procured another person, without the latter’s consent to commit or witness an act of gross indecency. Ten years of imprisonment is the maximum penalty for this offence. The important element in this offence is that the victim did not give free and voluntary consent.

While the code does not provide for the definition of indecent, jurisprudence has held consistently that it is a deviation from the conduct which is acceptable by the community standard. It is conduct which is unbecoming and offensive to common decorum.

Sexual Offences even with the consent of the Victim

In this category of sexual offences, the accused is held criminally liable regardless of whether or not the victim gave free and voluntary consent. The fact that the victim gave consent freely and voluntarily is irrelevant considering the gravity of the offence, especially if the victim is a minor, under a special condition or in a particular relationship with the accused.

Child Victim

The age for the victim to be considered as a child in Queensland is set at 18 years old with regards to the acts of sodomy (anal intercourse) and for vaginal intercourse and indecent assault to a child the age is set at 16 years old.

The accused is still held criminally liable even if he does not know the age of the victim during the time of the offence. It is a matter of defence for the accused to prove that the victim is over the age of 16. However, it is considered immaterial if the age of the accused is below 12 years old. On the other hand, if the child victim is under the care and supervision of the accused, this defence is untenable.

The penalty for the crime of having unlawful vaginal intercourse with a female under 16 years of age is 14 years of imprisonment. It is increased to life imprisonment if the accused is the guardian of the victim or where the child is below 12 years old. The same penalty of 14 years imprisonment is provided for those who have anal intercourse with a child under the age of 18 years old or to permit another person to sodomise the child.

Life imprisonment is the penalty for those persons who commit the same anal intercourse with a victim under 12 years old, or the victim is the lineal descendant of the accused, or under his care.

Unlawful and indecent dealing with a child

If a person committed sexual conduct against a child other than sexual penetration, he can be held guilty of unlawful and indecent dealing with a child. This offence includes acts and conducts which, if done without consent, constitutes an assault against the child.

The Criminal Code (Qld), under section 210, provides for the indictable offences in indecent dealing with a child under 16 years of age, to wit:

a. Unlawfully and indecently deals with a child below 16 years old;
b. Unlawfully procures a child below 16 years old commit an indecent act;
c. Unlawfully allows himself to be indecently dealt with a child below 16 years old;
d. Wilfully and unlawfully exposes a child below 16 years old to indecent acts;
e. Wilfully exposes a child under 16 years old, without any legitimate reason, to any indecent object, film, tape, picture, or any written and published materials;
f. Takes indecent photos and records of any indecent images of a child below 16 years old without a legitimate purpose.

Incapable Victims

The Criminal Code (Qld) provides for the protection of intellectually and psychiatrically impaired person against any sexual offences. Under the Code (Qld) S 229F, a disability of a person is defined as that is attributable to the intellectual, psychiatric, cognitive or neurological impairment which results to a substantial reduction of the capacity of the person to communicate, interact socially and learn. Persons with this disability need support and rearing in their daily lives.

Any person who has unlawful sexual intercourse with an impaired person can be criminally held liable and they can be penalized with up to 14 years of imprisonment.

Sexual Relationship with a Child

Section 229B of the Criminal Code (Qld) provides a penalty of life imprisonment for those adults who maintain an unlawful sexual relationship with a child under the prescribed age. The prescribed age is set to 16 years old for offences involving vaginal intercourse, and it is 18 years old for those involving sodomy or anal intercourse.

Incest

Incest is sexual conduct between two persons who are related to each other either by blood or lineal relationship. The crime of incest is punishable by life imprisonment under section 222 of the Code (Qld) after proving that carnal knowledge happened between the accused and the victim. The grave penalty is imposed on that person who commits incest against a victim who is either their descendant or under the care of the accused. Knowledge of the relationship on the part of the accused must be established for the accused to be held guilty of this offence.

Breach of Morality

Queensland provides the protection for the child against exposure to any illicit and indecent acts. This includes the following:

a. Any person who procures a child or an impaired person commits a crime and it is punishable for up to 14 years of imprisonment;
b. Use of electronic communication in procuring the same;
c. Taking a child under the age of 16 years old for purposes of doing an act that will constitute as an offence;
d. Being a owner of the premises and permits the child under the prescribed age to perform such prohibited acts in the said premises.

Even if the victim is not a child, these provisions are still applicable if any person procures, either by threat, intimidation, or false pretence, another person to engage in sexual behaviour. Using drugs against that person to perform a sexual act is also punishable by law. Public exposure and distribution of illicit recordings are also prohibited in Queensland.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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