Sexual Offences

Two types of offences:

1. Offences against people capable of giving consent: A person that is able to give consent
a) Sexual penetration without consent: ss 325 – 326;
b) Indecent Assault: ss 323 – 324

2. Offences against people incapable of giving consent: “The person cannot consent to sexual activities in
ordinary circumstances”
a) Offences against children s 320 - 322
 Below 16, except for where there is a special relationship of care, supervision,
Authority: s 322; and
 Family relationship s 329
b) Mental Impairment: s 330
 Definition s 330
a) Unable to understand nature
b) Guard from exploitation
Sexual Penetration without Consent (s 325)
Sexual Penetration without Consent: s 325
A person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable
to imprisonment for 14 years.

Aggravated Sexual Penetration without Consent: s 326

The penalty is increased to 20 years imprisonment.

Circumstances of aggravation are defined in s 319(1) and include the offender:

a) Being armed with a dangerous or offensive weapon
b) Being in company with another
c) Doing bodily harm to any person
d) Doing an act which likely to seriously and substantially degrade or humiliate the victim
e) Threatening to kill the victim
IS THE VICTIM CAPABLE OF GIVING CONSENT?
Answer Plan
Under s 325, a person who sexually penetrates another person without the consent of that person is guilty of a crime
and is liable to imprisonment.
Element 1: Sexual penetration
 Defined s 319(1): as including penetration of the vagina, anus or urethra of any person with any part of
the body of another person, except where the penetration is carried out for proper medical purposes.
 Includes the accused manipulating the victim’s body so that the victim penetrates the accused.
 Also includes engaging in Cunnilingus or fellatio – (Oral sex on woman/Oral sex on Man)
Element 2: Lack of Consent
 Defined s 319(2): it must be:
a) Freely and voluntarily given not obtained by force, threat, or fraudulent means
b) Failure to offer physical resistance does not constitute consent: s 319(2)(b)
c) Child under 13 cannot consent  constitutes an offence against the child
 Consent is a Subjective state of mind of the victim, which can be judged based on the circumstances
 s 319(2)(b): Consent can be expressed or implied through conduct but submission or failure to
physically resist does not amount to consent:
 Consciously permitting penetration does not necessarily mean that the victim is voluntarily
consenting: Ibbs v R

Submission is not Consent

 There is no requirement that the victim manifest their lack of consent or forcibly resist and the
fact that a person submits does not necessarily mean that they are consenting. Ibbs v R – it was
made clear that consciously permitting penetration does not necessarily mean that the victim is
voluntarily consenting.

Threats/Intimidation
 A threat will invalidate consent if it was a threat of substantial harm. Subjective approach of how
and to what degree the threat will work in the mind of the victim. if the threat operates in the
mind of the victim, it will be enough to invalidate consent R v PS Shaw
 Above Confirmed in Michael v WA: should have no limitations on the types of threats that may
invalidate consent.
 There must be a Casual link between the threat and the consent so it is not freely given.
 Threats may be; Michael v WA
o To someone other than the Complainant
o Does not have to be threat of physical harm or indeed serious bodily harm
o Considered reasonable by the complainant whether substantial or not to the
reasonable person
Coercion:
  Coercion does not constitute consent, however, a person a person may initially refuse consent
but later change their mind fter negotiation between parties. In such a case, the juries must have
regard to the evidence and how the later consent was obtained. Acquiescence obtained by
threats or duress would clearly be negative consent: Case state by DPP (No.1 of 1993)
Fraudulent means/Deceit to gain Consent
 S 319(2): Consent is invalid when a person is misled about the nature and character of the act or
identity of the Accused
 Consent is vitiated where a person is misled about the nature and character of the act, or identity
of the person: See cases below

Papadimitropoulos v R: Victim thought she was performing marital duties as she was fraudulently misrepresented
with information by appellant that by lodging an intention to get married would constitute an official marriage.
HELD: consent was not vitiated by the conduct of accused. Reason: Offence is not directed to the fraudulent
conduct inducing consent but to the act of penetration without consent. Such consent requires that the person
has a perception of what is about to take place, of the identity of the person about to do the act and of the
character of what he is doing. Once consent is given with such understanding the inducing causes cannot make
the consent valid.
 Consent will not be held to be freely and voluntarily given where it is obtained by false or
fraudulent misrepresentation about the nature or purpose of the act or by the accused inducing a
mistaken belief that he/she is the person’s sexual partner (See case below)
R v Pryor: Appellant unlawfully entered the bedroom of the victim and has sex with her. She assumed the
appellant was he sexual partner. HELD: appellant misled the victim about his identity by placing himself in the
victim’s bedroom at night where no other person than her partner could reasonably be expected to be. REASON:
He had induced the victim to believe that he was the partner of the victim. Hence, the consent of the victim was
vitiated by the conduct of the appellant.

Michael v WA: Consent was vitiated by a combination of threat, deceit, intimidation and fraud that can invalidate
consent. This case shows a broader approach in WA, where divergent views were expressed.
 Steylter P Found: there is no limitations on the types of fraud that can invalidate consent;
Whilst
 EM Heenan AJA Argued: s 319(2) could be interpreted in line with the common law approach
where only fraudulent representations about the identity of the offender or the character of
the act will invalidate consent

Mobilo Case (CL case): radiographer made a misrepresentation to a number of women that it was a necessary
procedure to enter an pparatus into their vagina. Instead it was for his gratitude. HELD: the concern was not
whether if it was for his pleasure or for medical reasons. But because those women knew of the nature of the act
and they did consent to the act, be it the reason.
 Essential nature
 Character of the act

Withdrawal of consent:
Consent must be given for the duration of penetration. If consent is withdrawn at any time and penetration
continues beyond that time, an offence is established.
 An offence is committed as soon as consent is withdrawn and accused continues with the
penetration without consent: Ibbs v R. DEFENCE AVAILABLE: if accused has an honest and
reasonable belief that the victim is still consenting, they may have an excuse under s 24 – Mistake
of fact as a defence
 Consent does not continue indefinitely and does not imply consent for further acts. Also, a person
who has given consent to one act of sexual penetration does not need to expressly withdraw
their consent for further sexual acts: Saibu v R

Mental Element
 No mental element of this offence under s 325 – BRK v R
 Only relevant where accused claims a defence under s 24 – Mistake about Consent – requires that the
accused belief in consent was honest and on reasonable grounds. (see below: defences)

DEFENCES:
1. Mistake of Age
 Not allowed under s 331

2. Mistake about Consent – s 24 Allows a defence if the accused honestly and reasonably believed that
there was consent
a) Honest – Was the mistake actually made, or is the accused lying? (SUBJECTIVE) test on the
accused state of mind
b) Judged Reasonable
 Is what the accused belief based on ‘reasonable grounds’? Must be determined by
whether there were reasonable grounds to believe, not what a reasonable person
would have believed. R v Mrzljak; Aubertin v State of WA
  Judged on what are generally accepted community standards and attitudes Aubertin
v State of WA
 Aubertin v State of WA TEST – what can be taken into account? (test is mixed
element combining subjective and objective aspects)
i. CONSIDERED: Language difficulties, mental impairment, age, gender
(maturity), ethnicity (not exhaustive)
ii. NOT CONSIDERED: Intoxication, values, culture, religion – Values don’t
impact on capacity to perceive objective facts.

 If these elements are proven, consider Circumstances of aggravation s 319(1) the accused could be charged for
Aggravated Sexual Penetration without Consent s 326 (20 years)

Circumstances includes s 319(1):

a) Armed with dangerous/offensive or pretends to be;
b) In company
c) Does bodily harm
d) Does an act likely, seriously and substantially to degrade or humiliate
e) Victim is of or over 13 under 16.

OTHER OFFENCES RELATED TO COMPETENT COMPLAINANTS

1. s 327 – Sexual Coercion – Compelling anther to sexual behaviour
2. s 328 Aggravated Assault – if circumstances of aggravation apply in s 319(1)

IS THE VICTIM INCAPABLE OF GIVING CONSENT?

AGE FACTORS

s 320(1) – (6): Sexual Offences against a Child under 13

 There’s no mistake defence- honest but mistaken belief will not apply (mistake of fact)
 Expressed in s 331

s 321: Sexual Offences against a Child aged 13-15: If the child is under a care/supervision – the penalty is
harsher
 There are specific defences available:
1. Mistake of fact – Believed on reasonable ground that the child is over 16 and there is not
more than 3 years age difference between offender and victim.

s 321A: Where there is persistent sexual conduct between 13-15:

 Captured in situation where there is a pattern of repeated conduct spanned over a number of years
 Difficult to recount every single occasion and detail the offence
 Amalgamate a range of individual offences and amount it to a single offence of persistent sexual
conduct
 Don’t have to specify dates and don’t have to be specific about details of evens (more generalised
charge permitted; i.e. 3 occasions in 2004

s 322 Sexual offences young person between 16 – 18 - When accused is a person in Authority – s 322
 Establish the particular offending (what is the sexual conduct?); the child is over 16; and the child
is in a relationship of care; supervision and authority with the offender
 Employer – employee; teacher – student; coach – athlete, are the most common ones
 No defence to use (mistake of fact) that a child is over 18 s 322(7)
o Because of the relationship one should know the age
o The power imbalance and the relationship that the law takes a hard-line approach to it
 S 322(8) defence that child is legally married to the accused

Circumstances include 319(1);

1. Armed with dangerous/offensive or pretends to be
2. In company
3. Does bodily harm
4. Does an act likely, seriously and substantially to degrade or humiliate
5. Victim is of or over 13 and under 16 – s 322

Defences
1. S 24 mistake of fact
 Child under 13 – NO DEFENCE
 Over 16 under relationship authority – NO DEFENCE unless married

MENTAL IMPAIRMENT

Definition s 330(1)(a)-(b): A person who is incapable or:

a) Unable to understand the nature of the act the subject of the charge against the accused person
 b) Unable to guard himself or herself against sexual exploitation

Range of offences
 Under s 330 acts involving conduct whether the offender knows or out to know the victim is an
incapable person,
o Sexual penetration
o Indecent dealing
o Procuring
o Inciting or encouraging the person to engage in sexual behaviour or to do an indecent act
o Indecently recording
 Requirement of knowledge (know or ought to have known)
 Consent is irrelevant
 S 330(9) Defence available – lawfully married will stand.
o But in Australia you cannot be entitled to be lawfully married unless on is mentally capable of
understanding what that means
o More intended to capture situation where 2 mentally adults capable adults consented to
lawful marriage and after marriage one becomes mental incapable/impaired i.e. Alzheimer’s
 Provision is meant to protect mentally incompetent persons from exploitations by mentally competent
persons
Conclusion
 Therefore, under s 326(1), circumstances of aggravation could be established and ______ is likely to face an
imprisonment of maximum 20 years.
 OR:
 Therefore, there is no circumstances of aggravation under s 326, ________is likely to face an imprisonment
of 14 years max.
Indecent Assault s 323
Under s 323, a person who unlawfully and indecently assaults another person in guilty of a crime and liable to
imprisonment for 5 years. The elements are discussed below.
ELEMENTS
ELEMENT 1: Unlawful Assault in s 222
a) Force (Applied or Threatened)
b) Without Consent
c) Unlawful (s 223)
d) Intention Hall v Fonceca

ELEMENT 2: Indecency
 Indecency is not defined in the Code
 Given its ordinary meaning within the community standard’s.
o Meaning: ‘anything that is unbecoming or offensive to common propriety’ and can only refer ‘ to
the involvement of the human body, bodily actions or bodily functions in a sexual way: Drago v R
o By way of an Assault and in indecent accompanying circumstances/acts can make an assault
indecent: R v Leeson
 There need not be physical contact is there is a threat or an attempt to apply force coupled with actual or
apparent present ability to apply force: R v Rolfe
∆ TEST for indecency:
1. Something is indecent if it is unbecoming or offensive to common propriety: R v Drago
2. The Indecent character of the assault may come from the circumstances including words: R v Leeson
R v Leeson:
Held that touching the girl was an assault and that asking her if she liked sex was a circumstance that made the
assault indecent. (there needs to be some sort of action/gesture/threatening acts to establish indecent assault)

R v Rolfe:
Accused walked towards the victim exposing himself and inviting her to touch his penis. An assault can involve
the application of force but can also occur even though the accused and victim had no physical contact, provided
there is a threat or an attempt to apply force coupled with an actual or apparent present ability to apply the force.

Drago v R:
The offence description does not mention any mental element and according to the general rule in CCWA s 23(1),
there is no need to prove an intention to cause any particular result. Therefore, the result intended to be caused
by the appellant was immaterial to his criminal responsibility. Also, s 23(2) makes clear that the motive of the
appellant for doing such an act is willed, or one deliberately or consciously. In this case the act which must be
willed is the running of the biro pen over and about the child’s penis.
 The question of whether the assault is indecent is one of fact and is a question for the jury.

The mental element of the accuse to have intended the act is immaterial (not relevant Accused intended to be
indecent): Drago v R. The Question of whether the assault is indecent is one of fact to be determined by a jury.

Are there CIRCUMSTANCES OF AGGRAVATION? S 319(1):

a) Armed with dangerous/offensive or pretends to be;
 b) In company
c) Does bodily harm
d) Does an act likely, seriously and substantially to degrade or humiliate
e) Victim is of or over 13 and under 16
Conclusion As discussed, the above elements have been established and _______ is likely to be found guilty of an indecent
assault and can face a possible imprisonment of 5 years.
However, the next issue would be if the indecent assault was under any circumstances of aggravation. If so, ______ is
likely to be found guilty of an aggravated indecent assault instead and is likely to face imprisonment for 7 years under
s 324