The law and sexual offences against adults in Australia

ACSSA Issues No. 4 – June 2005

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Outline of Offences

The key adult sexual offences for every state and territory have three main elements. Each of these elements must be proved beyond reasonable doubt by the prosecution in order to result in a conviction. Each of the offences requires: physical acts, which meet the definition of "sexual intercourse" or "sexual penetration" in that jurisdiction; the non-consent of the complainant; and a specific mental state on the part of the accused.

Within this framework, however, there is considerable variation between the jurisdictions. This paper deals with each of these three broad elements in turn. The text of each section is accompanied by a table setting out the detail of the legislation for every state and territory. The Table on pp. 32-41 provides more detail and allows for comparison across the jurisdictions.

The law of sexual offences is complex and sometimes technical. This issues paper does not claim to cover all of the features of this legislation or every possible interpretation of the offences. However, it does aim to provide a plain English account of their key components, including those which have received most attention from law reformers aiming to make the law more responsive to the needs of people who have been sexually assaulted.

Sexual intercourse

Prior to modern law reform, the law of rape dealt only with heterosexual, vaginal intercourse without consent. In the last 30 years, every Australian jurisdiction has extended the kinds of "sexual intercourse" or "sexual penetration" which can amount to rape or sexual assault. These changes responded to arguments that sexual acts other than the penetration of a vagina by a penis could be "humiliating and traumatic" and "serious invasions of a person's physical and emotional integrity" when they took place without consent (MCCOC 1999: 11). It was also necessary for non-consensual sexual acts against men and boys to be legally recognised as "rape".

Definitions of "sexual intercourse" and "sexual penetration"

The current definitions of "sexual intercourse" and "sexual penetration" vary considerably across the country. All jurisdictions recognise penetration of the vagina or, (depending on the jurisdiction), the external female genitalia by a penis as "sexual intercourse". Similarly, all jurisdictions recognise penetration of the anus by a penis as "sexual intercourse".

Every jurisdiction except TAS also defines sexual intercourse as including penetration to any extent of the vagina (ACT), external female genitalia (NSW, NT, QLD, SA, VIC and WA) or anus of one person by another person, using any part of their body or any object.16 In addition to these Acts, WA law includes penetration of the urethra of one person by another person using any part of their body or any object within the definition of "sexual intercourse". TAS law has the narrowest definition of "sexual intercourse". It treats penetration of the vagina, genitalia or anus with any object or part of the body other than the penis as a separate offence, rather than as "rape".

All Australian jurisdictions recognise the insertion of any part of the penis of one person into the mouth of another person as amounting to "sexual penetration". NT, SA and WA also include oral contact with male genitals ("fellatio"), providing explicit recognition of "fellatio performed by the accused on the complainant" as falling within these offences (MCCOC 1999: 9). In ACT, NSW, NT, SA and WA law, oral contact with female genitals ("cunnilingus") falls within the legal definition of "sexual intercourse".17

In Victoria, rape can also be committed by compelling a male to sexually penetrate another person with his penis or preventing a male from withdrawing his penis from another person. The WA definition also extends to manipulation of any part of the body of the victimcomplainant in order to cause penetration of the vagina, labia majora, anus or urethra of the accused. NSW and NT have additional offences of "sexual assault by self-manipulation". This offence is committed by anyone who coerces another person into inserting an object into their own vagina or anus using threats, or in circumstances where the victim-complainant could not reasonably be expected to resist.

The NSW, NT, TAS and VIC definitions of "female genitals" or "vagina" include surgically constructed genitalia. TAS law also includes a surgically constructed penis within the meaning of "penis". 18

Continuation of sexual intercourse

Continuation of sexual intercourse is explicitly included in the statutory definition of "sexual intercourse" in every state and territory apart from QLD and under case law in SA.19 This means that where the complainant initially agrees to sex and later withdraws consent or an accused becomes aware that the complainant is not consenting after sexual intercourse has commenced, the accused is committing a criminal act if he or she continues sexual intercourse.

Acts carried out for medical, hygienic or other lawful purposes

ACT law specifically excludes penetration which is done for a "proper medical purpose" or authorised by law in another way from the definitions of "sexual penetration". NSW, NT and WA exclude penetration done for a "proper medical purpose". QLD excludes penetration carried out for "a proper medical, hygienic or law enforcement purpose". VIC law excludes penetration with objects or a part of the body other than the penis unless it is done "in the course of a procedure carried out in good faith for medical or hygienic purposes." SA law deals with this issue a little differently, stating that agreement to an act on the basis that it is necessary for a medical or hygienic purpose is not agreement for any other purpose.

Aggravated assaults not requiring proof of sexual intercourse

The ACT has an offence of "sexual intercourse without consent", which is similar to the key offences of the other jurisdictions. In addition, it has a series of aggravated sexual assaults with higher penalties than "sexual intercourse without consent". Sexual assaults in the first, second and third degree do not require proof of sexual intercourse. Rather, they require that the accused injured, assaulted or threatened the victim-complainant with the intention of engaging in sexual intercourse.

NSW has a similar offence of "assault with intent to have sexual intercourse" and QLD and VIC have an offence called "assault with intent to commit rape", none of which require proof of sexual intercourse.

How does it work in practice?

Prior to the wave of Australian reform from 1975 onward, rape could only be committed by a man against a woman, because "sexual intercourse" was defined as penetration of the vagina by a penis. Other forms of sexual conduct would be dealt with as other offences, such as "sodomy" or "indecent assault". There has been broad agreement that the range of physical acts which the law recognized could amount to rape was too narrow. However, there has not been complete agreement about more extensive modern definitions.

The potential for other forms of non-consensual sexual contact to violate sexual autonomy and physical integrity; humiliate and physically injure has been one of the main arguments for broadened definitions of "sexual intercourse" (MCCOC 1999). However, arguments against change maintain that the old definition is still the one many members of the public understand (MCCOC 1999). Some commentators have suggested that extending the most serious adult sexual offences such as "rape" to non-consensual penetration by fingers or objects trivialises those offences (ACT Law Reform Commission 2001).

The broadened definitions have not been uniformly embraced by the judiciary. Some believe that extending "sexual intercourse" beyond the traditional definition, to include acts which do not involve penetration, is illogical or inappropriate (NT Law Reform Committee 1999).

Footnotes

16 However, in QLD law, penetration of the external female genitalia ("vulva") by a penis, without penetration of the vagina, does not amount to sexual intercourse.

17 QLD and VIC have definitions of sexual intercourse, which would include any form of cunnilingus, which penetrated the external female genitalia.

18 SA courts have stated that the definition of sexual intercourse is "inclusive . . . it is not exhaustive and exclusive", but have not ruled on whether surgically constructed genitalia would fall within the legislation. R v Remynse (1987) 135 LSJS 180, 181.

19 Murphy (1988) 52 SASR 186.