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  • Home Resources & Technical Articles Criminal Offence Topics (A to Z) Sexual Offences Sexual Offences and Penalties in the Australian Capital Territory (ACT)

    Sexual Offences and Penalties in the Australian Capital Territory (ACT)

    All matters relating to sexual offences are sensitive and usually treated in higher courts, especially in the ACT. The Crimes Act 1900 (ACT) defines the legal descriptions of a criminal charge in Australia.

    Sexual offences in the ACT can be interpreted more broadly than they appear on the Act. It all depends on the peculiarity of the matter and the discretion of the Court.

    If an individual is convicted in an ACT court for a sexual offence, the offence will show up as a disclosable court outcome (DCO) on a national criminal history check in the ACT.

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

    What is a sexual offence?

    The basis for sexual offences includes sexual connotations, references, and inducements without consent from the other party(ies). It is most likely a sexual offence if the other party does not consent to the Act or, if they consented from a disadvantaged position. A person can also be guilty of a sexual offence if they acted recklessly to the consent such as;

    • The victim was under the influence of alcohol or other intoxicating substances
    • Could not reasonably consent to the act due to emotional instability
    • The victim was blackmailed or coerced into the sexual act
    • The victim had a reasonable fear for the offender leading to granting a consent
    • The victim was in physical danger and fear
    • The victim was reasonably tricked to a benefit from the act
    • And any other peculiar circumstance that the Court considers a disadvantaged one for the victim

    If the sexual offence involves a child, the Court usually considers consent from the child as immaterial. The ACT laws do not consider the “consent” of a child admissible in a legal court.

    Sexual offences usually incur severe penalties and fines in the Australian Capital Territory, with some (aggravated cases) leading to greater punishments.


    1. Sex without consent

    Any form of sexual intercourse or penetration with another person without their consent is a crime that carries 12 years imprisonment term. It is an aggravated matter if the offender was in the presence of another person/persons (14 years).

    Section 54 of the Crimes Act 1900 (ACT), which prohibits the Act, includes all cases where the person was reckless regarding consent from the other person.


    1. Sexual intercourse with a young person

    The Crimes Act 1900 defines the offence of having a sexual act with a person under 16 years of age (child under ACT legislation). If the Court finds you guilty of such an offence, it will impose punishments appropriate with the severity of the crime.

    If the child is under ten years, it incurs a maximum penalty of 17 years imprisonment.

    If the child is aged between 10 to 16 years, it only attracts a maximum penalty of 14 years.


    1. Sexual Assault

    It is a most serious offence to assault a person with sexual connotations in the ACT. For most cases, offences of sexual assault incur the most severe penalties of all sexual offences in the ACT. However, the fines for this offence depend on the severity of the offence measured in degree orders.


    • Sexual assault of the first degree

    Under Section 51 of the Crimes Act, sexual assault of the first degree are the most grievous forms of sexual assault against a person. It includes cases of forceful actions with sexual intents to injuries committed in a bid to commit a sexual offence.

    The Act prescribes a 17 years imprisonment term for such offences that is increased to 20 years if it was committed in the company. Of course, for this case, consent is not a defence for the offender in Court.


    • Sexual assault of second degree

    Section 52 of the Act describes all actions that constitute a sexual assault of the second degree. Although these are grievous, they are not as severe as those of first degree and attract slightly lesser punishments.

    The Court can impose penalties up to 14 years for a person guilty of second-degree sexual assault.


    • Sexual assault of the third degree

    Lesser forms of sexual assaults are grouped into third degree and attract penalties up to 12 years. It includes assault on the person or other parties in a bid to commit the sexual offence. The punishment increases to a 14 years term if it was committed in the company of other offenders.

    Section 53 of the Act describes all other actions that can constitute a third-degree sexual assault. It is possible that the Court upgrade a third-degree charge to a second or first degree if they consider the evidence to support such.


    1. Sexual servitude and sexual services

    A person is guilty of this offence if they forcefully induce a person to engage in sexual acts in a denigrating manner. Section 79 of the Act imposes a penalty of up to 15 years for such offences and 19 years for aggravating circumstances.


    1. Incest offences

    Under ACT laws, it is an offence for a person to have sexual intercourse with another person they know to be related to them. It includes blood relationships, close descendants, and other forms of relationship where the law describes sexual intercourse as inappropriate.

    Section 62 prescribes penalties of up to 10 years imprisonment for such offences if the other person was a consenting adult (relation).

    However, the penalty is severer if the other party is a child;

    • The Court can issue up to 15 years imprisonment if the relation is under 16 years
    • The Court can impose up to 20 years imprisonment if the other party is under ten years old.

    However, it may be a defence in court if the defendant could not reasonably know that the other party is related to them.


    1. Abduction

    Attempting to or forcefully taking/detaining a person with the intent to engage in sexual intercourse is guilty of an offence. For such offence, the Court can impose penalties up to 10 years regardless of whether the abducted person later consents to the sex.

    This section (63) also holds even if the offence was committed outside of the ACT.


    1. Bestiality

    It is an offence to engage in sexual intercourse with an animal; it incurs up to 10 years of imprisonment. The Act allows the Court to impose penalties up to 10 years imprisonment for such offences; it can be more if the animal was stolen or subjected to other torture.


    1. Indecent Act with a young person

    All forms of sexual indecency or actions around or within the premises of a child are severe offences; The penalties are usually more severe depending on how young the person is.

    If the offence occurs in the presence of a person under ten years, the Court can sentence the person up to 12 years imprisonment.

    If the indecent act is with a person under 16, the imprisonment term reaches ten years.

    However, the Court may consider it a defence that;

    • The offender believed on reasonable grounds that the victim was above 16 years
    • The offender was above ten years as at the time of the offence.

    1. Young person with special care

    There are many young children worldwide with special needs; it becomes a severe offence to interact indiscriminately with such a group.

    Offences of a person under special care incur a penalty of up to 7 years imprisonment.

    However, it counts as a defence if;

    • The offender is married to the person as at the time, or
    • They are not more than two years older than the person.

    Furthermore, section 55B states an offence where an adult enters a relationship with a child of special care leading to multiple sexual acts; the Court can impose the maximum penalty of 25 years imprisonment. A relationship, in this case, refers to repeated contact or engagements of sexual nature. However, the penalty for a single sexual encounter is a ten years maximum prison term.

    The law lists a person under special care if the adult available is;

    • A teacher,
    • Carer,
    • Parent, step-parents, grandparents, foster career,
    • Legal guardian,
    • Domestic partner.

    1. Acts of indecency without consent

    All acts of sexual indecency, including touch, caress, romance, squeezes, and actions with sexual undertones are non-consensual is an offence under section 60 of the Act.

    The court issues penalties of up to 7 years imprisonment for all non-consensual actions related to sex. And nine years imprisonment if the offence was committed in the company of others.


    1. Grooming and encouraging young persons

    It is an offence to deprave, groom or encourage a young person into a sexual act or offence, especially if you are the legal guardian. It includes all cases where the offender engaged with the young person or encouraged them to view pictures or scenes from the Act.

    Section 66 of the Act prescribes punishments up to 9 years imprisonment if the child is under ten years. The Court can increase the imprisonment to 12 years if the offender commits a subsequent offence of such kind.

    If the child is above ten years at the time of the offence, the Court will impose a penalty of up to7 years. The term can increase to 10 years for subsequent offences of such kind.

    What is “consent” under the law?

    Most sexual offences occur on the premise that the victim/complainant did not consent to the Act. Matters of consent does not regard cues or assumptions that the offender may have perceived before or during the Act.

    Consent is flawed or negated under the law if;

    • There was force, violence or a violet undertone around the scene,
    • Thereat to the person or cause to inflict violence on the person
    • Threat to humiliate, disgrace, degrade or harass the person
    • There was a reasonable cause to mistake the victim for another person.

    Will a Sexual Offence in ACT show up on a national criminal history check?

    If an individual is found guilty of a sexual offence in ACT, the offence will show up as a disclosable court outcome (DCO) on the results of their criminal record check.

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

    Sources

    Crimes Act 1900 (ACT) - https://www.legislation.act.gov.au/a/1900-40

    Government Response to the ACT Law Reform Commission Report on the Laws Relating to Sexual Assault and the Model Criminal Code Report on Sexual Offences Against the Person - https://www.justice.act.gov.au/sites/default/files/2019-08/Sexual_Assault_Government_Response.pdf

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