Sexual offences are considered to be very heinous offences in Australian Courts, and as such, they carry serious penalties. These serious penalties increase further, where the victim of sexual crimes are children.
Sexual offences include, among others, sexual assaults, indecent assaults, the act of indecency and aggravated indecent assaults.
In NSW, sexual offences are severely punished. The range of sexual offence crimes under the legislation is primarily contained within the Crimes Act 1900 (NSW), although, some exist in the Summary Offences Act 1988. For a better understanding of sexual offences, it is necessary to at least know the basic elements of the said offence.
The law specifically provided the instances where sexual intercourse is said to have been consummated insofar as sexual offences are concerned. It is a sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person. (Section 61h of Crimes Act 1900).
It is clear from the definition that full penetration is not necessary to constitute sexual intercourse. Even the slightest penetration is already considered sexual intercourse. It is important, however, to know that the penetration must be done by any part of the body of another person or any object manipulated by another person.
Generally, a sexual offence is committed if there was sexual intercourse with a person with another person without the consent of the latter. Lack of consent is a very important element of sexual that must be proven to sustain a conviction against the sexual offender. There can be no sexual offence if both persons voluntarily agreed to the sexual intercourse.
Consent is present if a person voluntarily consents to the sexual intercourse. The problem arises if the sexual offender knows that the victim did not consent to the sexual intercourse failing to inquire recklessly as to whether or not the victim consents to the sexual intercourse or has no reasonable grounds of believing that the other person has consented to the sexual intercourse.
A person is also considered by law as not having consented to sexual intercourse:
a. If a person does not have the capacity to give consent to sexual intercourse; or
b. If a person does not have the opportunity to give consent because the person is either unconscious or asleep; or
c. If there was a threat of force or terror; or
d. If a person was unlawfully detained even if a person consented to the sexual intercourse
Lack of consent as an element of a sexual offence is not therefore limited to not giving consent, but it also includes a lack of capacity to give consent.
Every kind of sexual offence has its corresponding penalty imposed by law. An attempt to have a sexual intercourse without the consent of another, which thereby constitutes any of sexual offences, is duly provided punishment by the law. Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years. (Section 61i of Crimes Act 1900)
The law mandates the trier of fact to consider all the circumstances of the case including the steps taken by the accused whether the victim consents to the sexual intercourse but including any self-induced intoxication of the accused. (Section 61h of Crimes Act 1900)
There are circumstances which may be present before or after the commission of the offence that may aggravate the penalty to be imposed upon the offender. These circumstances include:
a. the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby; or
b. The alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument; or
c. the alleged offender is in the company of another person or persons, or
d. the alleged victim is under the age of 16 years, or
e. he alleged victim has a cognitive impairment, or
f. the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
g. the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence
If any these circumstances are present in a particular case, the imposable penalty shall be 20 years. (Section 61j of Crimes Act 1900)