The role of emerging communication technologies in experiences of sexual violence

A new legal frontier?
Research Report No. 23 – February 2013

Appendix G: Commonwealth and state laws applicable to sexual offences featuring emerging communication technologies or mobile phones in Victoria

Table G1: Commonwealth and state laws applicable to sexual offences featuring emerging communication technologies or mobile phones in Victoria
Name of Act Relevant pro­vision Name of offence Definition of offence Maximum penalty
Crimes Act 1958 (Vic.) s.21A Stalking A person stalks another person if the offender engages in a course of conduct which includes any of the following -

 

  • following the victim or any other person;
  • contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication or by any other means whatsoever; (ba) publishing on the Internet or by an e-mail or other electronic communication to any person a statement or other material -
  • relating to the victim or any other person; or
  • purporting to relate to, or to originate from, the victim or any other person; (bb) causing an unauthorised computer function (within the meaning of Subdivision (6) of Division 3) in a computer owned or used by the victim or any other person; (bc) tracing the victim's or any other person's use of the Internet or of e-mail or other electronic communications;
  • entering or loitering outside or near the victim's or any other person's place of residence or of business or any other place frequented by the victim or the other person;
  • interfering with property in the victim's or any other person's possession (whether or not the offender has an interest in the property);
  • giving offensive material to the victim or any other person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person;
  • keeping the victim or any other person under surveillance;
  • acting in any other way that could reasonably be expected to arouse apprehension or fear in the victim for his or her own safety or that of any other person -
  • with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of any other person.

For the purposes of this section an offender also has the intention to cause physical or mental harm to the victim or to arouse apprehension or fear in the victim for his or her own safety or that of any other person if -

  • the offender knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear; or
  • the offender in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.
Level 5 imprisonment (10 years maximum)
Crimes Act 1958 (Vic.) s. 31 Assault A person who -

 

  • assaults or threatens to assault another person with intent to commit an indictable offence;
  • assault means the direct or indirect application of force by a person to the body of, or to clothing or equipment worn by, another person where the application of force is -
  • without lawful excuse; and
  • with intent to inflict or being reckless as to the infliction of bodily injury, pain, discomfort, damage, insult or deprivation of liberty -
  • and results in the infliction of any such consequence (whether or not the consequence inflicted is the consequence intended or foreseen).
Level 6 imprisonment (5 years maximum)
Crimes Act 1958 (Vic.) s. 38(3) Rape A person commits rape if he or she compels a person -

 

  • to sexually penetrate the offender or another person, irrespective of whether the person being sexually penetrated consents to the act; or
  • who has sexually penetrated the offender or another person, not to cease sexually penetrating the offender or that other person, irrespective of whether the person who has been sexually penetrated consents to the act.

A person compels another person (the victim) to engage in a sexual act if the person compels the victim (by force or otherwise) to engage in that act -

  • without the victim's consent; and (b) while - (i) being aware that the victim is not consenting or might not be consenting; or (ii) not giving any thought to whether the victim is not consenting or might not be consenting.
Level 2 imprisonment (25 years maximum)
Crimes Act 1958 (Vic.) s. 38A Compelling sexual penetration A person compels another person to take part in an act of sexual penetration if -

 

  • the offender compels the victim to introduce (to any extent) an object or a part of his or her body into his or her own anus or, in the case of a female victim, her own vagina, other than in the course of a procedure carried out in good faith for medical or hygienic purposes; or
  • the offender compels the victim to take part in an act of bestiality within the meaning of section 59.

A person compels another person (the victim) to take part in an act of sexual penetration if the person compels the victim (by force or otherwise) to engage in that act -

  • without the victim's consent; and (b) while - (i) being aware that the victim is not consenting or might not be consenting; or (ii) not giving any thought to whether the victim is not consenting or might not be consenting.
Level 2 imprisonment (25 years maximum)
Crimes Act 1958 (Vic.) s. 40 Assault with intent to rape A person must not assault or threaten to assault another person with intent to commit rape. Level 5 imprisonment (10 years maximum)
Crimes Act 1958 (Vic.) s. 47 Indecent act with a child under the age of 16 A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16 to whom he or she is not married. Level 5 imprisonment (10 years maximum)
Crimes Act 1958 (Vic.) s. 49 Indecent act with 16 or 17 year old child A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority. Level 6 imprisonment (5 years maximum)
Crimes Act 1958 (Vic.) s. 49A Facilitating sexual offences against children A person must not make travel arrangements for another person or do or omits to do any other act that aids, facilitates or contributes to in any way whatever the commission by another person of an offence against this Subdivision (other than this section) or against Division 2 of Part IIIA of the Crimes Act 1914 of the Commonwealth or against a law in force only in a place outside Victoria the necessary elements of which consist of or include elements which, if present or occurring in Victoria, would constitute an offence against this Subdivision (other than this section). Level 3 imprisonment (20 years maximum)
Crimes Act 1958 (Vic.) s. 57 Procuring sexual penetration by threats (or fraud) A person must not by threats or intimidation procure a person to take part in an act of sexual penetration. Level 5 imprisonment (10 years maximum)
Crimes Act 1958 (Vic.) s. 68 Production of child pornography A person must not prints or otherwise make or produce child pornography.

 

Child pornography means a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context.

Level 5 imprisonment (10 years maximum)
Crimes Act 1958 (Vic.) s. 69 Procurement of minor etc. for child pornography A person must not -

 

  • invite a minor to be in any way concerned in the making or production of child pornography; or
  • procure a minor for the purpose of making or producing child pornography; or
  • cause a minor to be in any way concerned in the making or production of child pornography; or
  • offer a minor to be in any way concerned in the making or production of child pornography.
Level 5 imprisonment (10 years maximum)
Crimes Act 1958 (Vic.) s. 70 Possession of child pornography A person must not knowingly possess child pornography.

 

Child pornography means a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context.

It is a defence against prosecution of the offence if -

i) the accused made the film or took the photograph or was given the film or photograph by the minor and that, at the time of making, taking or being given the film or photograph, the accused was not more than 2 years older than the minor was or appeared to be; or

ii) that the minor or one of the minors depicted in the film or photograph is the accuse

Level 6 imprisonment (5 years maximum)
Crimes Act 1958 (Vic.) s. 70AC Sexual performance involving a minor A person must not -

 

  • invite a minor to be in any way concerned in a sexual performance; or
  • procure a minor for the purpose of being in any way concerned in a sexual performance; or
  • cause a minor to be in any way concerned in a sexual performance; or
  • offer a minor to be in any way concerned in a sexual performance -
  • in circumstances where there is payment or reward to the minor or to any other person in respect of the performance.
Level 5 imprisonment (10 years maximum)
Summary Offences Act 1966 (Vic.) s. 41A Observations or visual capturing of genital or anal region A person must not, with the aid of a device, intentionally observe another person's genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be observed. 3 months imprisonment
Summary Offences Act 1966 (Vic.) s. 41B Visually capturing genital or anal region A person must not intentionally visually capture another person's genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured. 2 years imprisonment
Summary Offences Act 1966 (Vic.) s. 41C Distribution of image of genital or anal region A person who visually captures or has visually captured an image of another person's genital or anal region (whether or not in contravention of section 41B) must not intentionally distribute that image. 2 years imprisonment
Sex Offenders Registration Act 2004 (Vic.) s. 14(1)(dd) Initial report by registrable offender of personal details The details any registrable offender must report are any Internet user names, Internet messaging user names, chat room user names or any other user name or identity used or intended to be used by the registrable offender through the Internet or other electronic communication service. 2 years imprisonment
Criminal Code Act 1995 (Cth) s. 272.9 Sexual activity (other than sexual intercourse) with a child outside Australia

A person commits an offence if: (a) the person engages in sexual activity (other than sexual intercourse) with another person (the child); and (b) the child is under 16; and (c) the sexual activity is engaged in outside Australia.

A person commits an offence if: (a) the person engages in conduct in relation to another person "(the child); and (b) that conduct causes the child to engage in sexual activity (other than sexual intercourse) in the presence of the person; and (c) the child is under 16 when the sexual activity is engaged in; and (d) the sexual activity is engaged in outside Australia."

15 years imprisonment
Criminal Code Act 1995 (Cth) s. 272.14 Procuring child to engage in sexual activity outside Australia A person commits an offence if:

 

  • the person engages in conduct in relation to another person (the child); and
  • the person does so with the intention of procuring the child to engage in sexual activity (whether or not with the person) outside Australia; and
  • the child is someone: (i) who is under 16; or (ii) who the person believes to be under 16; and
  • one or more of the following apply: (i) the conduct referred to in paragraph (a) occurs wholly or partly outside Australia; (ii) the child is outside Australia when the conduct referred to in paragraph (a) occurs; (iii) the conduct referred to in paragraph (a) occurs wholly in Australia and the child is in Australia when that conduct occurs.
15 years imprisonment
Criminal Code Act 1995 (Cth) s. 272.19 Encouraging an offence against Division 272 (Child sex offences outside Australia) A person commits an offence if:

 

  • the person engages in conduct; and
  • the person does so with the intention of encouraging an offence against this Division (other than this section or section 272.20); and
  • the conduct is reasonably capable of encouraging such an offence.

Encourage means:

  • encourage, incite to, or urge, by any means whatever, (including by a written, electronic or other form of communication); or
  • aid, facilitate, or contribute to, in any way whatever.
20 years imprisonment
Criminal Code Act 1995 (Cth) s. 272.20 Preparing for or planning an offence against Division 272 (child sex offences outside Australia) A person commits an offence if:

 

  • the person does an act; and
  • the person does so with the intention of preparing for, or planning, an offence against section 272.8, 272.9, 272.10, 272.11 or 272.18.
10 years imprisonment
Criminal Code Act 1995 (Cth) s. 273.5 Possessing, controlling, producing, distributing or obtaining child pornography material outside Australia A person commits an offence if: (i) has possession or control of material; or (ii) produces, distributes or obtains material; or (iii) facilitates the production or distribution of material; and (b) the material is child pornography material; and (c) the conduct referred to in paragraph (a) occurs outside Australia. 15 years imprisonment
Criminal Code Act 1995 (Cth) s. 471.16 Using a postal or similar service for child pornography material A person commits an offence if:

 

  • the person causes an article to be carried by a postal or similar service; and
  • the article is, or contains, child pornography material.

A person commits an offence if:

  • the person requests another person to cause an article to be carried by a postal or similar service; and
  • the article is, or contains, child pornography material.
15 years imprisonment
Criminal Code Act 1995 (Cth) s. 471.17 Possessing, controlling, producing, supplying or obtaining child pornography material for use through a postal or similar service A person commits an offence if: (a) the person: (i) has possession or control of material; or (ii) produces, supplies or obtains material; and (b) the material is child pornography material; and (c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used: (i) by that person; or (ii) by another person; in committing an offence against section 471.16 (using a postal or similar service for child pornography material).

 

A person may be found guilty of an offence against this provision even if committing the offence against section 471.16 is impossible.

15 years imprisonment
Criminal Code Act 1995 (Cth) s. 471.24 Using a postal or similar service to procure persons under 16 A person (the sender) commits an offence if: (a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and (b) the sender does this with the intention of procuring the recipient to engage in sexual activity with the sender; and (c) the recipient is someone who is, or who the sender believes to be, under 16; and (d) the sender is at least 18.

 

A person (the sender) commits an offence if: (a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and (b) the sender does this with the intention of procuring the recipient to engage in sexual activity with another person (the participant); and (c) the recipient is someone who is, or who the sender believes to be, under 16; and (d) the participant is someone who is, or who the sender believes to be, at least 18.

A person (the sender) commits an offence if: (a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and (b) the sender does this with the intention of procuring the recipient to engage in sexual activity with another person; and (c) the recipient is someone who is, or who the sender believes to be, under 16; and (d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18; and (e) the sender intends that the sexual activity referred to in paragraph (b) will take place in the presence of: (i) the sender; or (ii) another person (the participant) who is, or who the sender believes to be, at least 18.

15 years imprisonment
Criminal Code Act 1995 (Cth) s. 471.26 Using a postal or similar service to send indecent material to person under 16 A person (the sender) commits an offence if: (a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and (b) the article is, or contains, material that is indecent; and (c) the recipient is someone who is, or who the sender believes to be, under 16; and (d) the sender is at least 18. 7 years imprisonment
Criminal Code Act 1995 (Cth) s. 474.19 Using a carriage service for child pornography material A person is guilty of an offence if: (a) the person:; (i) accesses material; or (ii) causes material to be transmitted to himself or herself; or (iii) transmits, makes available, publishes, distributes, advertises or promotes material; or (iv) solicits material; and (aa) the person does so using a carriage service; and (b) the material is child pornography material. 15 years imprisonment
Criminal Code Act 1995 (Cth) s. 474.20 Possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service A person is guilty of an offence if: (a) the person: (i) has possession or control of material; or (ii) produces, supplies or obtains material; and (b) the material is child pornography material; and (c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used: (i) by that person; or (ii) by another person; in committing an offence against section 474.19 (using a carriage service for child pornography material). 15 years imprisonment
Criminal Code Act 1995 (Cth) s. 474.25 Obligations of Internet service providers and Internet content hosts A person commits an offence if the person: (a) is an Internet service provider or an Internet content host; and (b) is aware that the service provided by the person can be used to access particular material that the person has reasonable grounds to believe is: (i) child pornography material; or (ii) child abuse material; and (c) does not refer details of the material to the Australian Federal Police within a reasonable time after becoming aware of the existence of the material. 100 penalty units
Criminal Code Act 1995 (Cth) s. 474.25A Using a carriage service for sexual activity with person under 16 years of age A person commits an offence if: (a) the person engages in sexual activity with another person (the child) using a carriage service; and (b) the child is under 16 years of age; and (c) the person is at least 18 years of age.

 

A person (the defendant) commits an offence if: (a) the defendant engages in conduct in relation to another person (the child); and (b) that conduct causes the child to engage in sexual activity with another person (the participant) using a carriage service; and (c) the child is under 16 years of age when the sexual activity is engaged in; and (d) the participant is at least 18 years of age when the sexual activity is engaged in.

15 years imprisonment
Criminal Code Act 1995 (Cth) s. 474.26 Using a carriage service to procure persons under 16 years of age

A person (the sender) commits an offence if: (a) the sender uses a carriage service to transmit a communication to another person (the recipient); and (b) the sender does this with the intention of procuring the recipient to engage in sexual activity with the sender; and (c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; (d) the sender is at least 18 years of age.

A person (the sender) commits an offence if: (a) the sender uses a carriage service to transmit a communication to another person (the recipient); and (b) the sender does this with the intention of procuring the communication to another person (the recipient); and (b) the sender does this with the intention of procuring the recipient to engage in sexual activity with another person (the participant); and (c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and (d) the participant is someone who is, or who the sender believes to be, at least 18 years of age.

A person (the sender) commits an offence if: (a) the sender uses a carriage service to transmit a communication to another person (the recipient); and (b) the sender does this with the intention of procuring the recipient to engage in sexual activity with another person; and (c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and (d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18 years of age; and (e) the sender intends that the sexual activity referred to in paragraph (b) will take place in the presence of: (i) the sender; or (ii) another person (the participant) who is, or who the sender believes to be, at least 18 years of age.

15 years imprisonment
Criminal Code Act 1995 (Cth) s. 474.27A Using a carriage service to transmit indecent communication to person under 16 years of age A person (the sender) commits an offence if: (a) the sender uses a carriage service to transmit a communication to another person (the recipient); and (b) the communication includes material that is indecent; and (c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and (d) the sender is at least 18 years of age. 7 years imprisonment