Sexual Offences and Penalties in Tasmania

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Punishments for sexual offences are severe not just because of the imprisonment terms but also because they influence the offender's future. For example, a simple police check conducted about the person will reveal their records as a sexual offender.

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 is a Sexual Offence?

The commonest premise of a sexual offence in Australia is Consent to the act by both parties. In Tasmania, an action can equally transform to sexual misdemeanour or offence if one or any of the parties to the action does not agree to the act under the standard defined terms of the Criminal Code Act 1924 (Tas).

In addition to covering the sexual misdemeanours in Tasmania, the Criminal Code also covers all sexual offences against children and minors in Tasmania. The court is often forced to treat offences against minors as aggravating circumstances for the original sexual offence and impose extra penalties.

What penalties does Tasmanian legislation prescribe for a sexual offence?

While sexual offences carry one of the most severe penalties, the type of offence determines how severe the penalties are. However, under the Sentencing Act 1997 (Tas), sexual offences in Tasmania have a maximum punishment of 21 years imprisonment.

Sentening for sexual offences in Tasmania varies depending on the nature of the offence and aggravating circumstances.

The varying degrees of sexual offences in Tasmania are listed under the Criminal Code Act 1924 (Tas) and include;

1. Rape offences

Section 185 of the Criminal Code Act 1924 (Tas) defines Rape, where the accused penetrates a person's genitalia (anus, vagina, mouth) with theirs without lawful Consent from the victim. In other Australian States or Territories, some refer to it as sex without Consent.

Can Marriage be a defence to Rape?

It is not a form of defence for the accused to claim they were married to the victim at the time of offence. Whether both parties are married or not, the Tasmanian legislation requires both parties to consent before any sexual act.

2. Unnatural Sexual Intercourse or Bestiality

Male homosexuality is decriminalised under the Tasmanian legislation and Lesbianism was never an offence under the Law.

However, having sexual intercourse with an animal is considered unnatural sexual intercourse.

Section 122 of the Criminal Code Act describes an act of unnatural crime where the accused person is guilty of any form of intercourse with other entities.

3. Indecent Assault

All other non-consensual sexual assault cases that do not involve penetration, abduction or force are classified under indecent assault. Section 127 of the Criminal Code Act 1924 (Tas) prohibits any of the non-consensual acts that include;

• Touching of breasts, genitals, anus
• Stalking a person,
• Making sexual themed remarks
• Assaults involving pictorial aids

The Magistrate can also rule a sexual assault case where the accused actions intoned a sexual connotation.

4. Incest

Section 133 of the Criminal Code describes an offence where a person has sexual intercourse with their direct ancestor, descendant or sibling. For such sexual offences, Consent is not a necessary factor unless an adult convinces or coerces a child into the act.

It will count as a case of aggravation if the act was committed between an adult and a child.

5. Sexual intercourse with a young person

The Charge of “Sexual intercourse with a young person” is given to those guilty of having intercourse with a person under 17 years. The legislation in Tasmania describes a young person as a candidate under 17 years.

It is a grave matter to be charged with unlawful sexual acts with a young person in Tasmania; it usually attracts the maximum term of 21 years imprisonment.

Consent from the person can be a defence only if;

• The child was above 15 years old, and the accused person was five years older.
• The child was 12 years old and the accused was three years older.

6. Permitting unlawful sexual intercourse with a child

It is an offence in Tasmania to allow your property or a premise that you manage to be used for illegal sexual activity against a child. It includes all cases where the candidate knowingly permits the place to be used for unlawful purposes.

The court will find them guilty of the charge of permitting sexual intercourse with a young person.

7. Maintaining a relationship with a young person

The Tasmanian law prohibits all forms of a sexual relationship between an adult and a child. It is a serious crime to have a sexual relationship with a child under 17 years if they are not married. Section 125A of the Criminal Code refers to the offence as a charge against maintaining a sexual relationship.

A person is guilty for this offence if they engaged in sexual acts at least three times with the child, and the young person was not married to the accused at the offence.

8. Procuring unlawful sexual intercourse with a person under 17 years

It is illegal in Tasmania for an adult to procure a person under the age of 17 years to be involved in certain acts. Any person that procures or induces them to these acts is guilty of the crime of "procuring unlawful sexual consummation with a young person."

These unlawful acts include where the accused person procures;

• A young person to sexual intercourse with another person in the State or elsewhere
• Another person to have unlawful sexual intercourse with a young person within or outside the State

9. Communicating (with a child) with intent to procure

It is also an offence to make any form of communication through any means to procure a person under 17 years of age. It is a criminal offence to create a communication that exposes a person under 17 years to any indecent material, sexual act or procurement.

10. Sexual intercourse with mental impairment

Section 126 of the Criminal Code lists a crime where an accused person is guilty of having sexual intercourse with a mentally impaired person under their care.

For this case, it may be a defence that;

• The mentally impaired person consented to the act, and
• The Consent was not based on the promise of the person rendering their duty of care towards them

It may also be a defence if the accused was married to or in a significant relationship with the impaired person. A ‘significant relationship’ is defined under the Relationship Act 2003 (Tas).

11. Aggravated Sexual Assault

While indecent assault is a severe crime in Tasmania, it can have far more severe consequences if the court rules the presence of an aggravating factor. It is an aggravated sexual assault if;

The accused person penetrates the victim using any other part asides from the human penis;

• They used an inanimate object
• Used force, threats, violence, tricks or other fraudulent means

Unless otherwise stated, a person under 17 years cannot consent to a sexual act in Tasmania.

12. Procuring by threats, fraud or drugs

It is an offence to procure another to a sexual act using illicit or fraudulent means to get their Consent. It includes all cases where the accused person threatened, forced or coerced the person through any advantage they hold over the person.

Using any false pretence, representation or tricks to have unlawful sexual intercourse with the person.

13. Possession and distribution of Child exploitation material

It is an offence to distribute, exploit, or possess child exploitation materials. Section 130 of the Criminal Code Act 1924 (Tas) considers it an offence that involves the production, supply, sale and keeping of these materials.

14. Stalking in Tasmania

Section 192 of the Criminal Code describes stalking as an offence in Tasmania, especially where the accused intentionally assaults the person emotionally or physically. It includes following, loitering around a place, hawking, spamming them with obscene materials, interfering with their properties.

The court usually considers stalking a precursor to a sexual offence if the victim becomes reasonably apprehensive of the act.

Sexual offences are usually broad in scope, and sometimes it takes the intervention of a Jury in Court to issue specific punishments depending on the crime.

However, the court cannot issue sentencing greater than 21 years imprisonment in Tasmania unless in the case of murder.

What is Consent?

An accused person may find themselves guilty of a sexual offence in Tasmania whilst they thought the victim “Agreed’ to the sexual act. The definition of Consent under the Tasmanian law may vary from the general definition of Consent between parties.

The concept of Consent available now is "Positive Consent", where the other party must agree both in words and actions. Also, it is not necessary to prove a physical injury or “struggle” to the act before the court finds a case of a sexual offence.

Under the law in Tasmania, all these do not count as Consent despite the dispositions of the other part;

• Where the other party is intoxicated by a drug, alcohol or other substance
• Where the accused holds some form of advantage over the other and insinuates applying for such benefit as punishment
• Where the accused used threats, force, tricks, violence, or the victim reasonably feared for their lives
• The other party was under 17 years at the time of the sexual act. Only in a few cases is the "consent” of a child considered in court
• Where the child is in care or the legal custody of the adult (offender).

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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