(1) It is not an offence against section 32 if the performance of the female genital mutilation is by a surgical operation which is—
(a) necessary for the health of the person on whom it is performed and which is performed by a medical practitioner; or
(b) is performed on a person in labour or who has just given birth, and for medical purposes or the relief of physical symptoms connected with that labour or birth, and which is performed by a medical practitioner or a midwife; or
(c) is a sexual reassignment procedure which is performed by a medical practitioner.
(2) For the purposes of subsection (1)(a), in determining whether an operation is necessary for the health of a person, the only matters to be taken into account are those relevant to the medical welfare or the relief of physical symptoms of the person.
(3) The burden of proving that the performance of the female genital mutilation did not occur in any of the circumstances set out in subsection (1) lies with the prosecution.
Pt 1 Div. 1 Subdiv. (4A) (Heading and ss 34AB–34AL) inserted by No. 37/2023 s. 3.
(4A) Non-fatal strangulation
S. 34AB inserted by No. 37/2023 s. 3.
34AB Definitions
chokes, strangles or suffocates includes doing any of the following things—
(a) applying pressure to the front or sides of a person's neck;
(b) obstructing any part of, or interfering with the operation of, a person's respiratory system or accessory systems of respiration;
(c) impeding a person's respiration;
family member has the meaning given by section 8 of the Family Violence Protection Act 2008;
injury has the same meaning as in section 15;
sexual activity has the meaning given by section 35D and subsection (2).
(2) If conduct constituting an offence against section 34AE(1) occurs during sexual activity (within the meaning of section 35D) that conduct is itself sexual activity for the purposes of this Subdivision.
S. 34AC inserted by No. 37/2023 s. 3.
34AC Guiding principles
It is the intention of Parliament that in interpreting and applying this Subdivision, courts are to have regard to the fact that—
(a) non-fatal strangulation of a person by a current or former intimate partner indicates that the person is, statistically, significantly more likely to be killed by the current or former intimate partner; and
(b) in circumstances of family violence, non‑fatal strangulation can indicate an ongoing and escalating pattern of coercive and controlling behaviour by the perpetrator; and
(c) even very short or individual instances of non-fatal strangulation can demonstrate the perpetrator's physical dominance and control over the victim and create an atmosphere of fear and compliance; and
(d) non-fatal strangulation will not always leave physical signs or injuries, and it can result in physical signs or injuries that only appear after weeks or months have passed.
(a) A intentionally and without lawful excuse chokes, strangles or suffocates another person (B); and
(b) A intends the choking, strangling or suffocation to cause an injury to B; and
(c) the choking, strangling or suffocation causes an injury to B; and
(d) A is a family member of B.
A mistaken but honest and reasonable belief that A was not a family member of B is not a defence to this offence—see section 34AK.
(2) For the purposes of subsection (1), it is not a lawful excuse that B consented to the conduct constituting the offence.
(3) A does not commit an offence against subsection (1) if the conduct constituting the offence occurs in the course of a procedure carried out in good faith for medical or body modification purposes.
1 A tattoos B's neck at the request of B.
2 A gives B a neck piercing at the request of B.
S. 34AE inserted by No. 37/2023 s. 3.
34AE Non-fatal strangulation
(a) A intentionally and without lawful excuse chokes, strangles or suffocates another person (B); and
(b) A is a family member of B.
A mistaken but honest and reasonable belief that A was not a family member of B is not a defence to this offence—see section 34AK.
(2) For the purposes of subsection (1), if the conduct constituting the offence is a sexual activity, that B consented to that conduct is not a lawful excuse except to the extent provided for by section 34AF.
(3) Nothing in subsection (2) or section 34AF prevents B's consent to the conduct constituting the offence from being a lawful excuse for the purposes of subsection (1) if that conduct is not a sexual activity.
(4) Nothing in sections 34AG to 34AJ applies in relation to consent being a lawful excuse where the conduct constituting the offence is not a sexual activity.
S. 34AF inserted by No. 37/2023 s. 3.
34AF Sexual activity and consent defence to offence of non-fatal strangulation
(1) It is a defence to a charge for an offence against section 34AE(1) if—
(a) the conduct constituting the offence was a sexual activity; and
(i) B consented to the conduct; or
(ii) A reasonably believed that B consented to the conduct.
consent has the meaning given by sections 34AG and 34AH.
S. 34AG inserted by No. 37/2023 s. 3.
34AG Sexual activity and consent defence—meaning of consent
For the purposes of section 34AF(1)(b)—
(a) consent means free and voluntary agreement; and
(b) a person does not consent to the conduct constituting the offence just because they do not resist the conduct verbally or physically; and
(c) a person does not consent to the conduct constituting the offence just because they consented to—
(i) a different sexual activity with the same person; or
(ii) the same sexual activity with the same person at a different time or place; or
(iii) the same sexual activity with a different person; or
(iv) a different sexual activity with a different person.
S. 34AH inserted by No. 37/2023 s. 3.
34AH Sexual activity and consent defence—circumstances in which a person does not consent
For the purposes of section 34AF(1)(b), circumstances in which a person does not consent to the conduct constituting the offence include, but are not limited to, the following—
(a) the person does not say or do anything to indicate consent to the conduct;
(b) the person submits to the conduct because of force, a fear of force, harm of any type or a fear of harm of any type, whether to that person or someone else, regardless of—
Each of the following is a type of harm that can be done to a person as described in this paragraph—
(c) the person submits to the conduct because of coercion or intimidation—
(d) the person submits to the conduct because the person is unlawfully detained;
(e) the person submits to the conduct because the person is overborne by the abuse of a relationship of authority or trust;
(f) the person is asleep or unconscious;
(g) the person is so affected by alcohol or another drug as to be incapable of consenting to the conduct;
(h) the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the conduct;
This circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting.
(i) having given consent to the conduct, the person later withdraws consent to the conduct taking place or continuing.
S. 34AI inserted by No. 37/2023 s. 3.
34AI Sexual activity and consent defence—reasonable belief in consent
(1) For the purposes of section 34AF(1)(b)(ii), whether or not A reasonably believes that B is consenting to the conduct constituting the offence depends on the circumstances.
See section 34AJ for the effect of intoxication on the standard to be applied in determining whether A had a reasonable belief.
(2) A's belief that B consents to the conduct constituting the offence is not reasonable if, within a reasonable time before or at the time the conduct takes place, A does not say or do anything to find out whether B consents to the conduct.
(3) Subsection (2) does not apply if—
(a) A has a cognitive impairment or mental illness (other than the effects of intoxication that is self-induced within the meaning of section 34AJ); and
(b) that cognitive impairment or mental illness is a substantial cause of A not saying or doing anything to find out whether B consents to the conduct constituting the offence.
(4) A bears the burden of proving on the balance of probabilities the matters referred to in subsection (3).
References to A and B in this section are references to the same A and B referred to in section 34AE.
S. 34AJ inserted by No. 37/2023 s. 3.
34AJ Sexual activity and consent defence—effect of intoxication on standard to be applied in determining reasonable belief
(1) In determining whether a person who is intoxicated has a reasonable belief at any time—
(a) if the intoxication is self-induced, regard must be had to the standard of a reasonable person who is not intoxicated and who is otherwise in the same circumstances as that person at the relevant time; and
(b) if the intoxication is not self-induced, regard must be had to the standard of a reasonable person who is intoxicated to the same extent as the person and who is in the same circumstances as that person at the relevant time.
(2) For the purposes of this section, intoxication is self-induced unless it came about—
(c) from the use of a drug for which a prescription is required and that was used in accordance with the directions of the person who prescribed it; or
(d) from the use of a drug for which a prescription is not required and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer.
(3) However, intoxication that comes about in the circumstances referred to in subsection (2)(c) or (d) is self-induced if the person using the drug knew, or had reason to believe, when taking the drug that it would significantly impair the person's judgement or control.
S. 34AK inserted by No. 37/2023 s. 3.
34AK No defence of mistaken but honest and reasonable belief regarding relationship
For an offence against section 34AD(1) or 34AE(1), it is not a defence to a charge that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that A was not a family member of B.
References to A and B in this section are references to the same A and B referred to in sections 34AD and 34AE.
S. 34AL inserted by No. 37/2023 s. 3.
34AL Review of amendments made by Crimes Amendment (Non-fatal Strangulation) Act 2023
(1) The Attorney-General must cause a review to be conducted of the operation of—
(a) this Subdivision; and
(b) section 5(2)(ba) of the Family Violence Protection Act 2008.
(2) The review must be commenced no later than 2 years after the commencement of the Crimes Amendment (Non-fatal Strangulation) Act 2023.
(3) The review must be completed no later than 6 months after it commences.
(4) The Attorney-General must cause a copy of the review to be laid before each House of the Parliament no later than 14 sitting days after receiving it.
Pt 1 Div. 1 Subdiv. (5) (Heading and ss 16–35) amended by Nos 7088 s. 2(b), 7645 s. 2, 8280 s. 4, 9155 s. 2, 9576 s. 11(1), repealed by No. 10233 s. 8(2), new Pt 1 Div. 1 Subdiv. (5) (Heading and s. 34B) inserted by No. 80/2003 s. 185, substituted as Pt 1 Div. 1 Subdiv. (5) (Heading and ss 34B–34BE) by No. 47/2016 s. 3.
(5) Corpses
S. 34B substituted by No. 47/2016 s. 3.
34B Sexual activity with the corpse of a human being
(a) A intentionally engages in an activity involving the corpse of a human being; and
(b) the activity is sexual.
(3) For the purposes of subsection (1)—
(a) an activity is sexual if it would involve sexual penetration as defined by section 35A were the corpse a person;
(b) an activity may be sexual due to—
(i) the area of A's body or of the corpse involved in the activity, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female, the breasts; or
(ii) the fact that A seeks or gets sexual arousal or sexual gratification from the activity; or
(iii) any other aspect of the activity, including the circumstances in which it takes place.
Exceptions apply to this offence—see section 34BD.
A mistaken but honest and reasonable belief that the activity was not sexual is not a defence to this offence—see section 34BE.
S. 34BA inserted by No. 47/2016 s. 3.
34BA Removal of body parts from the corpse of a human being
(1) A person (A) commits an offence if A intentionally removes a body part from the corpse of a human being.
Exceptions apply to this offence—see section 34BD.
S. 34BB inserted by No. 47/2016 s. 3.
34BB Offensive conduct involving human remains
(a) A intentionally engages in conduct involving human remains; and
(b) the conduct is offensive.
(2) A person who commits an offence against subsection (1) is liable to level 7 imprisonment (2 years maximum).
(3) An offence against subsection (1) is a summary offence.
(4) For the purposes of subsection (1), conduct is offensive if, in all the circumstances, it is likely to arouse significant anger, resentment, outrage, disgust or repulsion in the minds of reasonable persons.
human remains has the same meaning as in the Cemeteries and Crematoria Act 2003.
1 Exceptions apply to this offence—see section 34BD.
2 A mistaken but honest and reasonable belief that the conduct was not offensive is not a defence to this offence—see section 34BE.
S. 34BC inserted by No. 47/2016 s. 3.
34BC Location of corpse or human remains immaterial
(1) For the purposes of sections 34B and 34BA, it is immaterial whether the corpse is in a public cemetery within the meaning of the Cemeteries and Crematoria Act 2003 or at any other place.
(2) For the purposes of section 34BB, it is immaterial whether the human remains are in a public cemetery within the meaning of the Cemeteries and Crematoria Act 2003 or at any other place.
S. 34BD inserted by No. 47/2016 s. 3.
34BD Exceptions
A does not commit an offence against a provision of this Subdivision if A's conduct occurs in the course of—
(a) a procedure carried out in good faith for the purpose of preparing the corpse or human remains for cremation or for interment within the meaning of the Cemeteries and Crematoria Act 2003; or
(b) any other lawful procedure carried out in good faith for medical, hygienic, scientific, forensic or law enforcement purposes.
The reference to A in this section is a reference to the same A referred to in the offence provisions in this Subdivision.
S. 34BE inserted by No. 47/2016 s. 3.
34BE No defence of mistaken but honest and reasonable belief that activity was not sexual or conduct was not offensive
It is not a defence to a charge that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that—
(a) for an offence against section 34B(1)—the activity was not sexual; or
(b) for an offence against section 34BB(1)—the conduct was not offensive.
The reference to A in this section is a reference to the same A referred to in the offence provisions in this Subdivision.
Pt 1 Div. 1 Subdiv. (6) (Heading and s. 36) amended by Nos 9155 s. 3, 9576 s. 11(1), repealed by No. 10233 s. 8(2).
Pt 1 Div. 1 Subdiv. (7) (Heading and ss 37–43) amended by Nos 6958 s. 8(4)(b), 7546 s. 4, 7876 s. 2(3), 8280 s. 5, 9576 s. 11(1), repealed by No. 10233 s. 8(2).
Pt 1 Div. 1 Subdiv. (8) (Heading and ss 44–62) amended by Nos 6761
s. 2, 7332 s. 2(Sch. 1 item 18), 7577 s. 2, 8280 s. 6, substituted as Pt 1 Div. 1 Subdiv. (8) (Heading and ss 44-46) by No. 9509 s. 5, substituted as Pt 1 Div. 1 Subdiv. (8) (Heading and ss 36–39) by No. 8/1991 s. 3, substituted as Pt 1 Div. 1 Subdiv. (8) (Heading and ss 35–37) by No. 81/1991 s. 3.
(8) Sexual offences (general provisions)
S. 34C inserted by No. 74/2014 s. 3 (as amended by No. 14/2015 s. 69(2)), repealed by No. 47/2016 s. 4.
New s. 35 inserted by No. 81/1991 s. 3, amended by Nos 2/2006 s. 3, 12/2008 s. 73(1)(Sch. 1 item 16), 4/2009 s. 37(Sch. 1 item 9), 74/2014 s. 7(1), substituted by No. 47/2016 s. 5.
Section 34A - Crimes Act 1958 - Exceptions to offences under section 32 | Zoe