Div 11Rape and other sexual offences

Division 11—Rape and other sexual offences 46—Consent to sexual activity (1) In this section— sexual activity includes sexual intercourse. (2) For the purposes of this Division, a person consents to sexual activity if the person freely and voluntarily agrees to the sexual activity. (3) Without limiting subsection (2), a person is taken not to freely and voluntarily agree to sexual activity if— (a) the person agrees because of— (i) the application of force or an express or implied threat of the application of force or a fear of the application of force to the person or to some other person; or (ii) an express or implied threat to degrade, humiliate, disgrace or harass the person or some other person; or (b) the person is unlawfully detained at the time of the activity; or (c) the activity occurs while the person is asleep or unconscious; or (d) the activity occurs while the person is intoxicated (whether by alcohol or any other substance or combination of substances) to the point of being incapable of freely and voluntarily agreeing to the activity; or (e) the activity occurs while the person is affected by a physical, mental or intellectual condition or impairment such that the person is incapable of freely and voluntarily agreeing; or (f) the person is unable to understand the nature of the activity; or (g) the person agrees to engage in the activity with a person under a mistaken belief as to the identity of that person; or (ga) the person agrees to engage in the activity because of a misrepresentation (whether express or implied) as to the use of a condom during the activity; or (h) the person is mistaken about the nature of the activity. A person is taken not to freely and voluntarily agree to sexual activity if the person agrees to engage in the activity under the mistaken belief that the activity is necessary for the purpose of medical diagnosis, investigation or treatment, or for the purpose of hygiene. 47—Reckless indifference For the purposes of this Division, a person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she— (a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or (b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or (c) does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed. 48—Rape (1) A person (the offender) is guilty of the offence of rape if he or she engages, or continues to engage, in sexual intercourse with another person who— (a) does not consent to engaging in the sexual intercourse; or (b) has withdrawn consent to the sexual intercourse, and the offender knows, or is recklessly indifferent to, the fact that the other person does not so consent or has so withdrawn consent (as the case may be). (2) A person (the offender) is guilty of the offence of rape if he or she compels a person to engage, or to continue to engage, in— (a) sexual intercourse with a person other than the offender; or (b) an act of sexual self‑penetration; or (c) an act of bestiality, when the person so compelled does not consent to engaging in the sexual intercourse or act, or has withdrawn consent to the sexual intercourse or act, and the offender knows, or is recklessly indifferent to, the fact that the person does not so consent or has so withdrawn consent (as the case may be). compels—a person compels another person if he or she controls or influences the other person's conduct by means that effectively prevent the other person from exercising freedom of choice; sexual self‑penetration means the penetration by a person of the person's vagina, labia majora or anus by any part of the body of the person or by any object. 48A—Compelled sexual manipulation (1) A person (the offender) is guilty of an offence if he or she, for a prurient purpose, compels a person to engage, or to continue to engage, in— (a) an act of sexual manipulation of the offender; or (b) an act of sexual manipulation of a person other than the offender; or (c) an act of sexual self‑manipulation, when the person so compelled does not consent to engaging in the act, or has withdrawn consent to the act, and the offender knows, or is recklessly indifferent to, the fact that the person does not so consent or has so withdrawn consent (as the case may be). compels—a person compels another person if he or she controls or influences the other person's conduct by means that effectively prevent the other person from exercising freedom of choice; prurient purpose—a person acts for a prurient purpose if the person acts with the intention of satisfying his or her own desire for sexual arousal or gratification or of providing sexual arousal or gratification for someone else; sexual manipulation means the manipulation by a person of another person's genitals or anus (whether or not including sexual intercourse); sexual self‑manipulation means the manipulation by a person of his or her genitals or anus (whether or not including sexual self‑penetration, within the meaning of section 48). 49—Unlawful sexual intercourse (1) 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. (3) A person who has sexual intercourse with a person under the age of seventeen years is guilty of an offence. (4) It shall be a defence to a charge under subsection (3) to prove that— (a) the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of sixteen years; and (i) was, on the date on which the offence is alleged to have been committed, under the age of seventeen years; or (ii) believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of seventeen years. (5) 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. (5a) It is a defence to a charge under subsection (5) if the accused was a person of a class described in subsection (9)(c) and proves that— (a) the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of 17 years; and (i) was, on the date on which the offence is alleged to have been committed, under the age of 18 years; or (ii) believed on reasonable grounds that the person with whom the accused is alleged to have had sexual intercourse was of or above the age of 18 years. (6) A person who, knowing that another is by reason of intellectual disability unable to understand the nature or consequences of sexual intercourse, has sexual intercourse with that other person is guilty of an offence. (7) Consent to sexual intercourse is not a defence to a charge of an offence under this section. (8) This section does not apply to sexual intercourse between persons who are married to each other. (9) For the purposes of this section, a person is in a position of authority in relation to a person under the age of 18 years (the child) if— (b) the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or (d) the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or (g) the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or (ga) the person is employed or providing services in a licensed children's residential facility (within the meaning of the Children and Young People (Safety) Act 2017), or a residential care facility or other facility established under section 36 of the Family and Community Services Act 1972, or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or (h) the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity). 50—Sexual abuse of a child (1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence. (2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period. (3) For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed. (4) However— (a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and (b) the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts; and (c) if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship. (5) The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed. (6) This section extends to a relationship that existed wholly or partly before the commencement of this section and to unlawful sexual acts that occurred before the commencement of this section. (7) A person may be charged on a single indictment with, and convicted of and punished for, both— (a) an offence of maintaining an unlawful sexual relationship with a child; and (b) 1 or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship. (8) Except as provided by subsection (7)— (a) a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence; and (b) a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship. (9) A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence. (10) For the purposes of this section, a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside. (11) A court sentencing a person for an offence against this section is to sentence the person consistently with the verdict of the trier of fact but having regard to the general nature or character of the unlawful sexual acts determined by the sentencing court to have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining the general nature or character of the unlawful sexual acts determined by the trier of fact found to be proved beyond a reasonable doubt). (12) In this section— adult means a person of or over the age of 18 years; child means— (a) a person who is under 17 years of age; or (b) a person who is under 18 years of age if, during the period of the relationship that is the subject of the alleged unlawful sexual relationship offence, the adult in the relationship is in a position of authority in relation to the person who is under 18 years of age; predecessor offence means an offence of persistent sexual exploitation of a child, or of persistent sexual abuse of a child, as in force under a previous enactment; sexual offence means— (a) an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or (b) an attempt to commit, or assault with intent to commit, any of those offences; or (c) a substantially similar offence against a previous enactment; unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence; unlawful sexual relationship offence means an offence against subsection (1). (13) For the purposes of this section, a person is in a position of authority in relation to a child if— (b) the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or (d) the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or (g) the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or (ga) the person is employed or providing services in a licensed children's residential facility (within the meaning of the Children and Young People (Safety) Act 2017), or a residential care facility or other facility established under section 36 of the Family and Community Services Act 1972, or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or (h) the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity). (14) The heading of this section— (a) is not part of this section (despite section 19 of the Legislation Interpretation Act 2021); and (b) is not intended to affect the interpretation or operation of this section. Parliament, in amending the heading of this section by the Criminal Law Consolidation (Child Sexual Abuse) Amendment Act 2023, did not intend to change the nature or scope of this offence or the requirements for establishing an offence against this section. 51—Sexual exploitation of person with a cognitive impairment (1) A person who provides a service (whether for remuneration or not) to a person with a cognitive impairment is guilty of an offence if he or she obtains or procures, by undue influence, sexual intercourse or indecent contact with that person. (2) A person who provides a service (whether for remuneration or not) to a person with a cognitive impairment is guilty of an offence if he or she behaves in an indecent manner in the presence of that person— (a) without the person's consent; or (b) with the person's consent where that consent was obtained by undue influence. (a) in the case of a first offence—imprisonment for 3 years; (b) in the case of a subsequent offence—imprisonment for 5 years. (3) This section does not apply in relation to a person who is legally married to the person with a cognitive impairment or is the domestic partner of that person. (4) A defendant who was, at the time of an alleged offence against this section, in a position of power, trust or authority in relation to the victim of the offence, is presumed to have obtained the consent of the victim by undue influence unless the defendant proves the contrary on the balance of probabilities. close personal relationship means the relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis, but does not include a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind; cognitive impairment includes the following: (a) an intellectual disability; (b) a developmental disorder (including an autistic spectrum disorder); (c) a neurological disorder; (d) dementia; (e) mental impairment; (f) a brain injury; domestic partner—a person is the domestic partner of another if he or she lives with the other in a close personal relationship; undue influence includes the abuse of a position of trust, power or authority. 56—Indecent assault (1) A person who indecently assaults another is guilty of an offence. (a) for a basic offence—imprisonment for 8 years; (b) for an aggravated offence (other than an offence of a kind described in paragraph (c) or (d))—imprisonment for 10 years; (c) if the victim of the offence was at the time of the offence under the age of 17 years—imprisonment for 10 years; (d) if the victim of the offence was at the time of the offence under the age of 14 years—imprisonment for 15 years. 57—Consent no defence in certain cases (1) Subject to subsection (1a), a person under the age of 18 years will be taken not to be capable of consenting to an indecent assault committed by a person who is in a position of authority in relation to the person. (1a) Despite subsection (1), the alleged victim's consent will be a defence to a charge of indecent assault if the accused was a person of a class described in subsection (4)(c) in relation to the alleged victim and proves that— (a) the alleged victim was, on the day on which the offence is alleged to have occurred, of or above the age of 17 years; and (i) was, on that day, under the age of 18 years; or (ii) believed on reasonable grounds that the alleged victim was, on that day, of or above the age of 18 years. (2) Subject to subsection (3), no person under the age of seventeen years shall be deemed capable of consenting to any indecent assault. (3) Where the person is between the age of sixteen and seventeen years, his or her consent shall be a defence to a charge of indecent assault if the accused proves that at the time of the indecent assault— (a) he or she was under the age of seventeen years; or (b) he or she believed on reasonable grounds that the person was of or above the age of seventeen years. (4) For the purposes of subsection (1), a person is in a position of authority in relation to a person under the age of 18 years (the child) if— (b) the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or (d) the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or (g) the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or (ga) the person is employed or providing services in a licensed children's residential facility (within the meaning of the Children and Young People (Safety) Act 2017), or a residential care facility or other facility established under section 36 of the Family and Community Services Act 1972, or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or (h) the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity). 57A—Power to take plea without evidence (1) When a person is charged with sexual intercourse with, or an indecent assault upon, a person under the age of seventeen years, the justice sitting to conduct the preliminary examination of the witnesses may, without taking any evidence, accept a plea of guilty and commit the defendant to gaol, or admit him to bail, to appear for sentence. (2) The justice shall take written notes of any facts stated by the prosecutor as the basis of the charge and of any statement made by the defendant in contradiction or explanation of the facts stated by the prosecutor and shall forward those notes to the Director of Public Prosecutions together with any proofs of witnesses tendered by the prosecutor to the justice. (3) The Director of Public Prosecutions shall cause the notes and proofs of witnesses to be delivered to the proper officer of the court at which the defendant is to appear for sentence before or at the opening of the court on the first sitting thereof or at such other time as the judge who is to preside in the court may order. (4) This section does not restrict or take away any right of the defendant to withdraw a plea of guilty and substitute a plea of not guilty. 58—Acts of gross indecency (1) Any person who, in public or in private— (a) commits any act of gross indecency with, or in the presence of, any person under the age of sixteen years; (b) incites or procures the commission by any such person of any act of gross indecency with the accused, or in the presence of the accused, or with any other person in the presence of the accused; (c) is otherwise a party to the commission of any act of gross indecency by or with, or in the presence of, any such person, or by or with any other person in the presence of any such person, or by any such person with any other person in the presence of the accused, shall be guilty of an offence. (2) It is no defence to a charge under this section that the act of indecency was committed with the consent of the person concerned. 59—Abduction of male or female person A person who takes away by force, or detains against his will, any other person— (a) with intent to marry, or to have sexual intercourse with, that other person; or (b) with intent to cause that other person to be married to, or to have sexual intercourse with, a third person, (a) for a basic offence—imprisonment for 14 years; (b) for an aggravated offence—imprisonment for 18 years. 60—Procuring sexual intercourse Any person who— (a) by threats or intimidation, procures any person to have sexual intercourse; (b) by false pretences, false representations or other fraudulent means, procures any person to have sexual intercourse, (a) for a basic offence—imprisonment for 7 years; (b) for an aggravated offence—imprisonment for 10 years. 61—Householder etc not to permit unlawful sexual intercourse on premises Any person who, being the owner or occupier of any premises or having, or acting or assisting in, the management or control thereof, induces or knowingly suffers any person under the age of seventeen years to resort to, or be in, those premises for the purpose of having sexual intercourse shall be guilty of an offence and liable to be imprisoned for a term not exceeding seven years.