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  • Sexual Offences and Penalties in South Australia (SA)

    According to the severity, certain offences are classified in the "first grade" of crimes; an example is sexually related offences. All around Australian territories, the law considers a sexually related offence the most grievous offence a person can commit against another. In Southern Australia, equally related offences incur the worst punishment on the offender prescribed by the Criminal Law Consolidation Act 1935.

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

    In most instances, sexual offences are dealt with as an indictable crime in SA.

    What is a sexually related offence in SA?

    The jurisdiction/State prohibits all sexual actions through any laws bordering on concepts like "Consent". Any sexual act, no matter how insignificant or lasting, where the other party/complainant/victim does not consent is regarded as a sexual offence.

    The court of law prioritises "Consent of both parties" as a defining factor in making a sexual act an offence.

    Sexual offences are broader than they seem, covering misdemeanours like indecent touches/actions to more heinous crimes like Rape. It also includes all improper emotional and psychological relationships between an adult and a child, especially those with "special needs."

    What are the penalties for sexual offences?

    The penalties for sexual offences in SA varies depending on factors like;

    • The severity of the offence

    Rape offences (sex without Consent) carries the most severe penalties in SA. The degree of punishment varies from stalking or attempting to trick a person for sexual motives.

    • The number of times the person offended

    Subsequent offenders get more grievous and lengthier punishments than first time or young offenders. Most times, the court considers the records of the person before sentencing.

    • Aggravating circumstances of the offence

    The use of weapons, injury, threats and other violent means to coerce a person to a sexual act increases the gravity of the offence.

    Types of sexual offences in South Australia

    The different types of sexual offences in SA are listed in the Criminal Law Consolidation Act 1935 (SA). The legislation also prescribes appropriate penalties to deal with offenders.


    1. Rape Offence

    Section 48 of the Act lists Rape as a grievous offence against a person. The Act in SA describes it as all acts of unwilful sexual intercourse.

    It includes cases where;

    • The other party never gives explicit Consent to sexual penetration,
    • Withdraws Consent to sexual intercourse at any point in the act,
    • The offender forces a person to have sexual intercourse with another person,
    • The offender forces a person to an act of sexual penetration,
    • Moves a person to an act of bestiality.

    Any person the court finds guilty of any of these acts incurs up to life imprisonment.


    1. Indecent Assault

    Section 56 of the Act describes a sexual assault of touching or inducing a person for sex without Consent. It includes improper touching, verbal assault in SA, interacting with them improperly, and all other actions the court considers will connote improper behaviours.

    The Act prescribes penalties of up to 8 years imprisonment if the victim is an adult. However, the penalties can rise to 10 years imprisonment in aggravated cases, including where a victim is a person under 14 years.

    Where the matter of “indecency” becomes vague, the court allows the jury some discretion as to motives/actions that are indecent.

    For this offence, the law considers a person under 17 years "inadequate" to give Consent unless the victim is between 16 and 17 years.

    Consent will only be a defence in court if the defendant is under 17 years and can prove that they reasonably believed the victim to be 17 years and above.

    Where the offender is a teacher, guardian or other legal adult in a position of authority, and the victim is under 18 years, the court will not accept "Consent" as a defence/excuse.


    1. The offence of procuring sexual intercourse

    Section 60 prohibits all actions where a person procures sexual intercourse through threats, intimidation, false representation or other means of fraud in SA.

    The Act considers it an offence that carries the maximum penalty of 7 years for a primary offence and ten years for an aggravated offence.


    1. Offences of Sexual manipulation

    Besides Rape, it is an offence to perform any sexual gratification, excitement or arousal with anybody without their Consent. It is irrelevant who sexually benefits from the Act under section 48A as long as the other party does not grant consent to the act.

    The Act prescribes penalties up to 10 years imprisonment for such offence and 15 years imprisonment for aggravated cases including where the offender;

    • Commits the Act in the presence of a child,
    • The victim is a child,
    • The offender used threats or violence.

    Usually, the court can adequately assign such offence as Rape if they conclude so from the evidence.


    1. Sexual offences against children

    Most sexual offences become aggravated when the victim is a child or person under 14 years. Sometimes, it may be a defence to the charge if they can prove they were reasonably unaware of the victim's age.


    1. An unlawful sexual relationship with a child

    Section 50 defines against all forms of sexual relations between an adult and a child. Subsection 2 describes such offence as where the adult engages in more than one sexual Act over any period. The Act prescribes punishments of up to life imprisonment for all persons guilty of this offence.


    1. Unlawful sexual intercourse with a child

    It is an offence for an adult to have sexual intercourse with a person under 14 years. Section 49A of the Act prescribes the full punishments of life imprisonment for this offence.

    If the victim is a child under 17 years, the court can impose penalties of up to 10 years imprisonment. For this offence, it is a defence if the accused can prove;

    • The victim was 16 years or above at the time of the offence.
    • They were under the age of 17 at the time of the offence
    • Believed on reasonable grounds that the victim was 17 or above at the time of the offence

    Sub-section 5 of this section punishes ten years imprisonment if an adult in a position of authority has sexual intercourse with a person under their care below 18 years. It includes cases where the adult is a teacher, legal guardian, religious office, responsible for the child.

    Sub-section 6 imposes a 10-year imprisonment term where an adult has sexual intercourse with a person of intellectual disability, especially with full knowledge of such disability. Intellectual liability can be a case where the victim cannot fully grasp the consequence of the offence.


    1. Sexual exploitation of a person with cognitive impairment

    It is an offence for a person who provides special service (for whatever purpose) to behave indecently to a person with cognitive impairment. If the offender commits the Act without the person's Consent or with Consent obtained by undue influence, the court will impose a penalty of three years imprisonment for first-time offenders and five years for subsequent offenders.


    1. Abduction of a person with sexual intentions

    It is an offence to kidnap, detain, take away a person against their will for any sexual intents. It is not a defence that you intended to marry the person or asked for their Consent in your custody.

    The court can impose a penalty up to 14 years imprisonment for those found guilty of the offence and 18 years for an aggravated offence.


    1. The offence of permitting a sexual offence

    A manager, householder, or any caretaker of a premise or area who induces or knowingly induces or allows sexual offences relating to a child is guilty of a crime. Section 61 of the Act prescribes penalties of up to 7 years of single term imprisonment.


    1. Offences of Incest

    The SA legislation, through the Act, punishes all forms of incest offences with a maximum penalty of 10 years. Section 72 of the Act describes incest as sexual intercourse between closely related persons (adult/child).

    It includes all relationships by blood such as;

    • Parent,
    • Child,
    • Grandparent,
    • Grandchild,
    • Sibling

    However, it does not include a relationship by marriage or adoption alone.


    1. Offences of sexual servitudes

    It is an offence to compel another person through whatever means to provide or continue to provide sexual services.

    If the victim (person of sexual servitude) is under 14 years, the punishment is life imprisonment.

    If the victim is under 18 years, the punishment is a 19 years imprisonment term.

    For other offences of sexual servitude, the SA legislation imposes penalties of up to 15 years imprisonment.

    However, if the offences were committed without the aggravating circumstance of coercion or threat, but the advantage of any kind, the penalties may be less severe unless the victim is a child under 14 years.

    The maximum penalties for non-aggravating circumstances are;

    • Life imprisonment term where the victim is a child under 14 years
    • 12 years imprisonment where the child is under 18 years
    • Seven years imprisonment for all other cases.

    1. Child exploitation material

    Producing, manufacturing or supplying child exploitation materials in SA is an offence under section 63 of the Act. It includes all pornographic and sex inducing material aimed at children where the person knows of the implications.

    The offence incurs ten years imprisonment for a primary offence, 12 years imprisonment for an aggravated offence.

    It is also an offence to produce, disseminate, manufacture or possess any material or object that would translate to a child-like sex doll or object. Anyone the court finds guilty of such an offence will incur penalties of up to 10 years imprisonment under SA legislation.


    1. Distribution of invasive images (Revenge Porn)

    It is an offence under section 26C of the Summary Offences Act 1953 (SA) to distribute a provocative or invasive sexual material non-consensually.

    An invasive image is outside the proper sense of morality, decency or reason. It includes where a place or body region other than those that are public are shown.

    The Act prescribes a penalty of $20 000 or 4 years imprisonment if the victim is below 17 years, and two years imprisonment or $10 000 in any other case.


    1. Beastiality

    Section 69 of the Act prohibits any form of relationship between a person and an animal. The SA legislation empowers the court to impose punishments up to 10 years imprisonment for all offenders.

    What is Consent under South Australian law?

    Section 46 of the Criminal Law Consolidation Act 1935 (SA) which legislates sexual offences in SA describes "Consent" for sexual activity.

    Following the description in the Act, a person only consents to sexual activity if they agree voluntarily and freely to the sexual activity. Consent is unconditionally void if one of the parties acts from a disadvantaged or precarious position, including;

    • Where the victim fears force or violence from the offender
    • The victim acts from a disadvantaged position of mental or psychological duress
    • The victim was intoxicated by alcohol, drug or any other intoxicating substance
    • The offender induces Consent through threats, degradation, blackmail, humiliation
    • The offender unlawfully detains the victim; it is irrelevant if the victim freely consents to the actin their detention
    • The victim agrees to the Act based on the mistaken identity or profile of the person. Especially where the offender purposely claims such false identity.
    • The victim was mistaken to the consequences or outcome of the activity
    • The offender deceived the victim with false benefits to enter the sexual Act. It includes where the offender claims the Act is necessary for certain medical purposes, diagnosis or other treatments
    • Consent from a child (person under 17 years) is void under South Australia legislation or court. It also equates to where the child is below 18, and the adult has a form of legal superiority over them (teacher, guardian, religious officer, guide, and so on.)

    The offence of Reckless indifference

    A person can still be guilty of a sexual offence if they reasonably perceived "consent". Section 47 describes reckless indifference as the offence where the offender is careless or dismissive about getting the other party's Consent.

    It also includes cases where the offender received Consent from a person under 17 years without taking reasonable steps to get their age.

    This section concludes that Consent for a sexual act or agreement;

    • Can never be implied by one party alone;
    • It can be temporal and conditional; the other party can withdraw consent at any point in the Act.

    Is it possible to seek compensation for sexual offences?

    The National Redress Scheme for Survivors of Child Sexual Abuse in SA helps victims and other sufferers of sexual assault and abuse get redress.

    A victim can make a claim for compensation as part of the criminal charge or as a separate charge for loss they suffer.

    However, the limitation period for filing for claims of compensation is usually three years in SA.

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

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

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

    Sources

    Criminal Law Consolidation Act 1935 (SA) - https://www.legislation.sa.gov.au/LZ/C/A/CRIMINAL%20LAW%20CONSOLIDATION%20ACT%201935.aspx

    Summary Offences Act 1953 (SA) - https://www.legislation.sa.gov.au/lz?path=%2Fc%2Fa%2Fsummary%20offences%20act%201953

    Legal Services Commission of South Australia (Sexual Offences) - https://lawhandbook.sa.gov.au/print/ch12s09.php

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