Sexual Offences and Penalties in New South Wales (NSW)

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In New South Wales (NSW), sexual offences generally refer to crimes that are sexual in nature. The legislation recognising these violations and sanctioning them is the Crimes Act 1900 (NSW).

In this article, we will be discussing the different acts that the law considers sexual offences and their penalties. But first, it's essential to look at the definitions of some terms. These terms will help in providing a better understanding of sexual offences.

If an individual is convicted for a sexual offence, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check.

In the majority of instances, sexual offences are dealt with as an indictable crime.

What Sexual Intercourse Means

According to Section 61HA of the Crimes Act 1900 (NSW), sexual intercourse refers to the penetration of the genitalia, anus or any part of the body through the use of the penis or any objects an individual can manipulate. The genitalia could also mean a surgically constructed vagina.

Meaning of Consent

In this context, consent is the approval or voluntary agreement to engage in sexual activity. It is illegal for a person to engage in sexual activity without the other person permitting them.

Also, it is an offence for an individual to incite a person to engage in sexual activities with another person without getting the person's consent. However, a person can only obtain permission from a person who can consent.

Factors such as age or cognitive impairment can make a person unable to give consent. Also, an individual who is unconscious or asleep cannot give consent.

Furthermore, consent becomes irrelevant if a person gives their permission due to being under threat or the influence of drugs. Additionally, consent cannot stand if an individual provided the consent due to a false belief.

Knowledge of Consent

Knowledge of consent has to do with determining if the offender knew that the victim did not give their consent. A person can be guilty of not getting consent if:

• The offender knew that the victim did not consent.
• The accused did not care if they got permission or not.
• The circumstances around the case do not show that a person gave permission.

What a Sexual Act Means

According to Section 61HC of the Crimes Act 1900 (NSW), a sexual act refers to a case where a person carries out a deed that a reasonable individual would consider to be sexual. This deed does not involve sexual touching. There are some factors to consider when trying to determine if an act is sexual.

To begin with, there is a need to consider the part of the body involved. This body part could be the genitalia, anus or breast of a person. Also, it is essential to find out if an individual performed a sexual act for sexual arousal or gratification.

Meaning of Cognitive Impairment

The Crimes Act 1900 (NSW) expresses cognitive disability as having an intellectual disability or a developmental disorder. It could also mean dementia, severe mental illness or brain injury requiring an individual to depend on supervision or social rehabilitation for daily activities.

It is often difficult for people in this category to give consent as they may not be in the right frame of mind to do such.

The Offence of Sexual Assualt

Under Section 61I of the Crimes Act 1900, any individual who has sexual intercourse with another person without their consent has committed the crime of sexual assault. This offence comes along with 14 years imprisonment.

Furthermore, a sexual assault can become aggravated if the offender threatens to inflict bodily harm on the victim. The same principle applies if the offender is in the company of another person or the victim is under 16.

An aggravated assault could also mean that the victim has a severe physical disability or a cognitive impairment.

Furthermore, an offender breaking into a building to commit the crime of sexual assault can make it aggravated. Additionally, a case of aggravated assault may stand if the offender restricted the victim's movement before or after the crime. According to the Crimes Act 1900, the offence of aggravated sexual assault attracts 20 years of imprisonment.

However, an offender may face life imprisonment if they carried out a sexual assault in someone else's company and threatened to harm or cause any harm to the victim. In addition, an offender who restricts the victim's movement is likely to face life imprisonment.

The law also states that anyone who inflicts bodily injury or threatens to inflict bodily injury to commit sexual assault is liable to imprisonment of 20 years.

The Offence of Sexual Touching

Section 61HB of the Crimes Act 1900 defines sexual touching as touching another individual using any part of the body or anything such as their clothing. The touching must be under some circumstances that can cause a reasonable person to consider it sexual.

To determine if the touching is sexual, there may be a need to consider the areas of the body touched. These areas could be the genitalia or the anal area. In the case of a female, it could be the breast, whether the breast has developed or not. Additionally, it is essential to consider if the person doing the touching performed the act to derive sexual arousal or gratification.

Based on the definition of sexual touching, Section 61KC of the Crimes Act 1900 states that any individual who sexually touches another person without their consent faces a maximum penalty of 5 years imprisonment.

Some scenarios can lead to the crime of aggravated sexual touching. If the offender committed the crime of sexual touching in the company of another person, then it becomes aggravated sexual touching.

Other circumstances that can result in aggravation are when the victim is under the offender's authority or has a physical disability or cognitive impairment. The crime of aggravated sexual touching attracts the maximum penalty of 7 years imprisonment.

The Offence of Sexual Act

As per Section 61HC of the Crimes Act 1900, any individual who performs a sexual act or encourages another person to perform a sexual act towards a victim without consent is guilty of an offence. Additionally, anyone who incites a person to perform a sexual act towards another person has committed a crime. The penalty for these violations is a maximum of 18 months imprisonment.

Also, under certain circumstances, a sexual act can change into an aggravated sexual act. This change can happen if:

• The offender committed the crime while they were in the company of another person.
• The victim was under the offender's authority at the time the crime took place.
• The victim has a severe physical disability or a cognitive impairment.

Sexually Assaulting a Child

Assaulting a child comes in different categories based on the child's age. To begin with, any individual who engages in sexual intercourse with a child below the age of 10 commits an offence that is punishable by life imprisonment.

If a person attempts to have sexual intercourse with a child below the age of 10, they may be liable to 25 years imprisonment.

Also, the law clearly explains that having sexual intercourse with a child that falls between the age bracket of 10 and 14 is an offence. Anyone who commits this crime is likely to face a maximum of 16 years imprisonment.

However, if the offender committed the crime under aggravated circumstances, they are liable to a maximum of 20 years imprisonment.

Furthermore, the Crimes Act 1900 expresses that it is an offence for a person to have sexual intercourse with a child above 14 but below 16. This offence carries a penalty of 10 years imprisonment. Under aggravated circumstances, the punishment increases to 12 years imprisonment.

Aggravating circumstances refers to scenarios where:

• The offender inflicts bodily harm on the victim at the time of the crime.
• The offender threatened to inflict physical harm on the victim in the process of committing the crime.
• The victim was under the offender's authority during the time the offence took place.
• The victim has a serious physical disability or cognitive impairment.
• The offender took advantage of the victim while under the influence of alcohol or drugs.
• The offender broke into a building to commit the crime.
• The offender restricted the victim's movement before or after they committed the crime.

Additionally, suppose a person assaults a child between the age of 10 and 16 with the intent of having sexual intercourse. In that case, they are likely to face the punishment of committing the actual offence.

Sexually Touching a Child

In NSW, it is an offence under Section 66DA of the Crimes Act 1900 for an individual to sexually touch a child under the age of 10 years. It is also illegal for a person to incite a child under the age of 10 years to sexually touch them or a third party.

Furthermore, it is a crime to encourage another person to touch a child below the age of 10 years sexually. Anyone who carries out any of these acts faces a maximum penalty of 16 years imprisonment.

Section 66DB of the Crimes Act 1900 also states that sexually touching a child between the age of 10 and 16 years or inciting them to touch a person sexually is an offence. In addition, it is a crime to incite a person to sexually touch a child aged 10 to 16 years. Anyone guilty of the offences is likely to face a maximum of 10 years imprisonment.

Sexual Act Against a Child

The crime of sexual acts against a child comes in different categories, depending on the child's age. The ages are:

#1. A Child Under the Age of 10

A person who performs a sexual act towards a child under the age of 10 years or incites the child to perform a sexual act towards another person is guilty of a sexual act offence.

Also, encouraging another to perform a sexual act towards a child below the age of 10 is an offence. The offence of sexual act towards a child below the age of 10 carries a maximum penalty of 7 years imprisonment. This is provided in Section 66DC of the Crimes Act 1900.

#2. A child between the age of 10 and 16

Carrying out a sexual act towards a child between the age of 10 and 16 or encouraging a child to carry out a sexual act towards another person is an offence of sexual act.

Also, Section 66DD of the Crimes Act 1900 states that any person who encourages another individual to carry out a sexual act towards a child between the ages of 10 and 16 has committed a sexual act offence. Committing a sexual act offence against a child between 10 and 16 attracts a maximum penalty of 2 years.

Aggravated Sexual Act against a Child

A person can be guilty of committing the crime of aggravated sexual due to the circumstances surrounding the offence. Some of these circumstances include inflicting bodily injury on the victim, the victim being under the offender's authority at the time of the crime.

A person who commits an aggravated sexual act offence may likely receive a maximum of 5 years imprisonment. This is all according to Section 66DE of the Crimes Act 1900.

Persistent Sexual Abuse

Persistent sexual abuse refers to a situation where a person continues to maintain an unlawful sexual relationship with a child. Generally, this has to do with engaging in an illegal sexual act with a child two or more times within any period. If an individual is guilty of this offence, they may receive a penalty of life imprisonment under Section 66EA of the Crimes Act 1900.

Incest

Incest is a sexual offence that does not consider consent. According to Section 78A of the Crimes Act 1900, a person who engages in sexual intercourse with a close family member aged 16 or above has committed the crime of incest. This offence carries a penalty of 8 years imprisonment.

Additionally, the law expresses that a close family member is a parent, daughter, son, sibling, grandparent, or grandchild. The law also makes it clear that anyone who ‘attempts’ to engage in incest faces a two-year imprisonment sentence.

If a person faces incest charges, they can defend themself by claiming that they were not aware that the person they engaged in sexual intercourse with was a close family member.

Bottom Line

Sexual offences come with severe penalties. As such, being guilty of these crimes can negatively impact a person's life.

This is because most sexual offences come with imprisonment terms without the option of a fine. That is why a person needs to seek legal advice when facing these charges.

Will a Sexual Offence show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a sexual offence, the offence will show up as a disclosable court outcome (DCO) on the results of their Nationally Coordinated Criminal History Check.

Individuals can obtain a police check online via the Australian National Character Check - ANCC® website.

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