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Sex Offences


Stephen Preece

These offences appear in Chapter XXXI of the Criminal Code Act Compilation Act 1913 (WA) (The Code).

For the offences discussed which relate to Section 320-329 The Code, where the age of the victim is relevant to the charge, it cannot be a defence for a person to assert that they were ignorant of the age of the person. This means they cannot seek to rely on the fact that they did not know the age of the victim. This is contained in Section 331 of The Code.

Some terms which appear in the descriptions of the various crimes are included below.



SEXUAL PENETRATION:

The definition of “sexual penetration” is:

  • To penetrate the vagina, anus or urethra of any person with:
    • Any part of the body of another person; or
    • Any object manipulated by the person;
  • except where it is done for a proper medical purpose.
  • To manipulate any body part of another person so as to cause penetration of the vagina, anus or urethra of the offender by a body part of the other person;
  • To put any part of the penis of a person into the mouth of another person;
  • To engage in cunnilingus or felatio (oral sex); or
  • To continue any of the above described actions.

SEXUAL BEHAVIOUR:

A person engages in “sexual behaviour” if they:

  • Sexually penetrate any person;
  • Have carnal knowledge of any animal; or
  • Penetrates the person’s own vagina, anus or urethra with any object or part of the other person’s body other than for a proper medical purpose.

CONSENT:

“Consent” is defined in Section 319(2) of The Code. “Consent” means consent that is freely given. It is a technical area of the law and the following is a very brief overview.

Consent is a continuing factor and can be withdrawn after it has been initially given. This means that if a person withdraws consent to a sexual act during that act and the other person does not cease the act, the part of the act which occurs after consent has been withdrawn is done without consent.

“Consent” is not freely given where it is obtained by:

  • Threat;
  • Intimidation;
  • Deceit; or
  • Any fraudulent means.

The issue of consent can be quite complicated and cannot be exhaustively covered here. However, there are situations where it is deemed that consent is not freely given or the person is incapable of giving consent. Examples of these situations include but are not limited to:

  • A person who is asleep is not capable of consenting;
  • A person who is unconscious is not capable of consenting. Similarly, a person who initially gives consent but lapses into unconsciousness is not taken to have consented to the continuation of the sexual act after becoming unconscious;
  • A person can be under the influence of alcohol or drugs to the extent of not being able to give consent;
  • Where a person submits to an act because of a threat, intimidation, deceit of fraud, that submission does not equate to consent freely given;
  • A person who ostensibly gives consent after being deceived as to the identity of the other person is not held to have freely given consent;
  • A person with a mental impairment which is severe enough that they are incapable of guarding themselves against sexual exploitation or understanding the nature of the act alleged to have been committed cannot give consent.

It is also an element of the definition of “consent” that the fact that a person does not offer physical resistance does not constitute consent to the sexual penetration. This means that a lack of physical resistance cannot be taken to mean that the person is consenting on the basis that a person not consenting would attempt to fight off or otherwise resist the attacker.

A child under the age of 13 years is considered incapable of giving consent to an act which constitutes an offence against the child.



where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers will be able to guide you through the process while dealing with the various authorities related to your matter.

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