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This page has been printed from the Yarrow Place website http://www.yarrowplace.sa.gov.au

What the Law Says about Sexual Offences

This section outlines which Acts (laws) apply to sexual assault and information is provided about some sexual offences. Acts always have the date that they were first passed as part of the title. Most have been amended since then.

There are some important things to understand about these laws.

  1. The laws apply equally to men and women, whether as victims or perpetrators of sexual assault.
  2. The laws do not distinguish whether the offender was the same sex or the opposite sex as the victim - the offence is still the same.
  3. The issue of ‘consent’ is not necessarily clear or easy. Consent to sexual activity must be ‘free and voluntary’. A person does not have to physically resist to demonstrate that they did not consent.

Sexual Assault

The term “sexual assault” is not a legal term but covers a range of unwanted sexual behaviours such as comments, touching, fondling, fingering or masturbation to oral, anal or vaginal sex. Penalties for rape and sexual assault depend on the offence that is committed.

Sexual Harassment

Sexual harassment is defined under the South Australian Equal Opportunity Act 1984 and the Commonwealth Sex Discrimination Act 1984. These Acts are administered by the South Australian Equal Opportunity Commissioner. Sexual harassment can include:

  • intentional and unwelcome acts of physical intimacy;
  • requests or demands (directly or by implication) for sexual favours;
  • remarks with sexual overtones made on more than one occasion where, in the circumstances, it is reasonable for the person to feel offended, humiliated or intimidated.

Rape

Legal changes to the definition of rape in South Australia were proclaimed in December 2008. The laws have been strengthened to provide a clearer definition of offences and what constitutes consent.

Sexual offences committed since this date will be prosecuted under the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008. Offences committed prior to the legal change will be prosecuted under the Criminal Law Consolidation Act (Sexual Offences) 1978.

Legal Definition of Rape

The definition of rape under the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 is:

A person who has sexual intercourse with another person without consent of that other person:

  1. Knowing that that other person does not consent to sexual intercourse with him/her
  2. Being recklessly indifferent as to whether that other person consents to sexual intercourse with him/her
  3. Continues with sexual intercourse when consent is withdrawn

Shall (whether or not physical resistance is offered by that other person) be guilty of rape.

Sexual penetration can include any of the following:

penetration of:
  • Penetration of vagina, labia majora
  • Cunnilingus (oral sex of the vagina)
  • Fellatio (oral sex of the penis)
  • Penetration of anus
penetration by:
  • Penis
  • Object
  • By any part of the body of another person or by an object

Penetration can be to the smallest degree and ejaculation need not occur. Physical resistance is not necessary to demonstrate lack of consent. Submission as a result of force or threats is not consent.

Consent to sexual activity must be free and voluntary. It is not free and voluntary under the following circumstances:

  • Use of force, fear
  • Unlawful detention
  • Asleep, unconscious, intoxicated to point of being incapable
  • Afflicted by physical, mental or intellectual impairment of capacity to freely consent
  • Unable to understand nature of activity
  • Mistaken identity
  • Mistaken re purpose of activity.

A person acts recklessly indifferent if:

  • They are aware of the possibility of lack of consent but proceed regardless
  • They are aware of the possibility of lack of consent but fail to take reasonable steps to ascertain consent before proceeding
  • They do not give any though to consent.

It is also an offence compelling a person to engage in:

  • Sexual intercourse with another
  • Sexual self penetration
  • Bestiality.

When working with victims/survivors of rape and sexual assault you may sometimes be required to explain that people haven’t said ‘yes’ to sex if, for example:

  • They were asleep or unconscious, or had been drinking or taking drugs and were not aware of what was going on
  • They are in a relationship and said ‘no’ to having sex
  • Someone put drugs in their drink and they were not aware of what was going on
  • The perpetrator used or threatened to use force against them or someone else
  • The perpetrator bullied them, for example, by threatening to leave them in a deserted area at night
  • They thought what was happening was for medical reasons, for example, if a health practitioner gave them an unnecessary and inappropriate examination
  • The person held them against their will by taking them away, keeping them somewhere, or locking them in a room
  • They were afraid of the person and what they might do to them or someone else.

Sexual offences that were perpetrated before December 2008 fall under the definition of rape under the Criminal Law Consolidation Act (SA 1935):

A person who has sexual intercourse with another person without consent of that other person:

  1. Knowing that that other person does not consent to sexual intercourse with him/her
  2. Being recklessly indifferent as to whether that other person consents to sexual intercourse with him/her

Shall (whether or not physical resistance is offered by that other person) be guilty of rape.

Rape is defined as sexual intercourse without consent or indifference to consent. The definition of sexual penetration has not changed – please refer to table on previous page.

The law also states that some people cannot give consent to sexual intercourse. This includes:

  • A person who has sexual intercourse with any person under the age of 14 years shall be guilty of an offence and liable to be imprisoned for life.
  • A person who has sexual intercourse with a person under the age of seventeen years is guilty of an offence. Maximum penalty: Imprisonment for 10 years.
  • A person who, being in a position of authority in relation to a person under the age of 18 years, has sexual intercourse with that person is guilty of an offence. Maximum penalty: Imprisonment for 10 years. The person in a position of authority could be a teacher, foster parent, step-parent, guardian, religious official or spiritual leader, medical practitioner, psychologist, social worker, person employed in correctional institution or training centre, or employer.
Sexual intercourse with a person with intellectual disability, unable to understand the consequences of sexual intercourse.

Other sexual offences

In the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 1935

Indecent Assault – Section 56
An indecent assault is touching (or threat of touching) without a person’s genuine consent. What is and what is not indecent is a matter for the jury to determine.

Unlawful Sexual Intercourse – Section 49
This is the legal name for sexual intercourse with a person under the age of seventeen years, regardless of whether the person consented.

Acts of Gross Indecency – Section 58 (1)
Gross indecency is actual, physical, sexual activity. The act states that “Any person who, in public or in private -

  1. commits an act of gross indecency with, or in the presence of, any person under the age of sixteen years

shall be guilty of indecency”.

Incest – Section 72
A person who has sexual intercourse with a close family member is guilty of an offence, regardless of whether or not there is consent. Close family member means: parent, child, sibling (including half-brother or half-sister), grandparent, grandchild of the person.

In the Summary Offences Act 1953, Section 23

Indecent Behaviour/Exposure
“A person who behaves in an indecent manner –

  1. in a public place, or while visible from a public place or in a police station, or
  2. in a place, other than a public place or police station , so as to offend or insult any person

is guilty of an offence.” What is indecent will depend on the circumstances. Examples of this sort of behaviour are indecently exposing oneself or masturbating.

Other Relevant Acts

Other South Australian laws of importance in relation to rape and sexual assault include:

The Children’s Protection Act 1993.
This law deals with all forms of child abuse, including sexual abuse. It also requires certain people (for example teachers, youth workers, police, and health workers) to notify the Department of Human Services if they believe that a child has been abused or is at risk of being abused.

The Guardianship and Administration Act 1993
This law deals with decision-making, rights, and protection for people with a mental incapacity. This might be because of an intellectual disability, a mental health issue, or an injury.

The Evidence Act 1929 Section 67E.
This law limits the situations in which communications with victims of sexual offences can be used in legal proceedings. Some communications, such as medical examinations, are not protected. Communication made in a therapeutic context is protected from disclosure in legal proceedings by public interest immunity.

The Equal Opportunity Act 1984

This law promotes equality of opportunity for all South Australians. It aims to prevent discrimination against people and to give them fair chance to take part in economic and community life. The Equal Opportunity Amendment Bill 2008 strengthens the law in relation to sexual harassment.

It is important to remember that laws are different in different States and Territories of Australia, and that laws change over time.

Rape and Sexual Assault and Justice

Sunday Mail 23/5/93

Sunday Mail 23/5/93

Victims/survivors pursue action through the criminal justice system for a variety of reasons. These may include:

  • believing that the perpetrator should be made responsible for what he or she has done;
  • feeling safer and protected from the perpetrator in the future;
  • reporting the crime may help them to get back some sense of power and control;
  • wanting to prevent the perpetrator from assaulting someone else; and
  • knowing a crime has happened and wanting to report this to police.

The experience of victims/survivors with the legal system is varied. Some victims/survivors state that they received justice through this system, or that it provided them with the opportunity to be heard. Others describe their experience with the legal system with words ranging from unhelpful and appalling to feeling abused again.

The low conviction rate for crimes of sexual violence is evidence that few victims/survivors receive justice for this crime through the legal process. The legal filter illustrates this clearly:

Legal Filter          Rape of a person aged 17 years and over in South Australia in 2002

Legal Filter

Estimated number of rapes = 1815
(this figure is based on 20% reporting rate)

Number of rapes reported to police (SAPOL) = 363

Number charged = 35 (9.6%)

Number convicted from rapes reported to police = 6 (1.5%)

(Office of ‘Crime Statistics 2003a & 2003b).

 

 

 

 

 

Reasons for poor outcomes in the legal process are multiple and include:

  1. The nature of the crime
    Rape is a crime that is generally committed in private and it is unlikely that there will be witnesses to the event. This can make the crime of rape difficult to prove.
  2. Myths of rape
    Dominant cultural beliefs about the nature of rape minimise the extent and effects of rape and sexual assault, blame the victim and make excuses for the perpetrator’s behaviour. This can have an impact on lawyers making decisions about the chance of a conviction and thus the chance of the case proceeding to trial, and on juries and judges when determining the guilt or innocence of the defendant. They also can discourage victim/survivors from reporting to the police.
  3. The nature of the legal system
    In Australia, there is an adversarial legal system. The system is combative with the outcome being that one side will be victorious. The prosecution has to prove beyond reasonable doubt that the defendant is guilty of committing the crime as charged. The defence uses whatever tactics are necessary to introduce that level of doubt into the minds of the jury or judge so that the defendant is acquitted. These tactics are generally those that discredit the victim/survivor either personally or discredit their version of events.
  4. The nature of legal institutions
    Men hold most of the important positions in legal institutions. Feminist analysis asserts that the law is a patriarchal institution that upholds laws, processes and procedures that support and maintain the power of men. This means that men, who are largely the perpetrators of rape and sexual assault, are frequently not accountable for their violence against women, children and other men.
Police and court statistics for the rape of a female and male
aged 17 years and over: Year 2004
Rapes Reported to the police Guilty plea Trial (district or supreme court)  
As charged Other offence Guilty Plea Guilty other offence Guilty As charged Acquitted Major charge
dropped
Female 384 1 1 4 2 3 12 17
Male 43 1 0 0 0 0 0 0
Total 427 2 2 4 2 3 12 17
(Office of Crime Statistics 2004)

There is wide recognition that legal reform is necessary. There have been some advances made already. The Model Criminal Code on Sexual Offences was developed in the 1990s to improve and unify the laws and sentencing around Australia. It reviewed the current laws in the different jurisdictions to develop best practice in dealing with sexual offences. The states are responsible for adopting the changes outlined in the Model Criminal Code. These reforms have not been taken up in South Australia as yet. South Australia is however, currently undergoing a long overdue review of the sexual offences.

The South Australian Evidence Act was amended in 1993 to help vulnerable witnesses such as victims/survivors of rape, through court procedures. The aim of this amendment was to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of the courtroom or for any other proper reason (Evidence Act SA 1929). The amendments included the use of screens, court companions and the use of closed circuit television to give evidence.

The reforms made to date have had little impact on the journey of the rape victim/survivor through the legal process. Major changes will need to take place to ensure that victims/survivors are treated fairly. This will involve both changes in the law and changes in community attitudes and understanding of rape.

Further information

The Law Handbook is produced by The Legal Services Commission of South Australia. It provides short explanations of a wide variety of crimes, including sexual offences. It also provides information about other aspects of the law and the legal system.

Many Acts are available over the Internet via www.sacentral.sa.gov.au

Community Legal Centres and the Women’s Legal Service may be able to provide further information.

 

     
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Updated April 12, 2010
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