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Sexual Offences

The major sexual offences are to be found in the Criminal Law Consolidation Act 1935 (SA) and all references are to this Act unless otherwise stated. Special rules dealing with matters of evidence and procedure in sexual cases are to be found in the Evidence Act 1929 (SA) and the Criminal Procedure Act 1921 (SA).

Types of Sexual Assaults

The following are some of the most common sexual offences.

Alternative verdict on a charge of rape, unlawful sexual intercourse or compelled sexual manipulation

If on a trial for rape, compelled sexual manipulation or unlawful sexual intercourse or an attempt to commit rape, compelled sexual manipulation or unlawful sexual intercourse the jury:

  • is not satisfied that the accused is guilty of the offence charged; but
  • is satisfied that the accused is guilty of an indecent assault or a common assault, or an attempt to commit indecent assault or a common assault (the 'lesser offence'),

the jury must find the accused not guilty of the offence charged, but may find the accused guilty of the lesser offence.

[Criminal Law Consolidation Act 1935 (SA) s 75]

Rape

The offence of rape occurs where a person has sexual intercourse, or continues to have sexual intercourse, with another person without the consent of that person (or continuing where consent has been withdrawn), either knowing that there is no consent or being recklessly indifferent about that consent.

It is rape even where the victim says that they do not consent, even if they do not physically resist.

It is also rape where a person compels another to engage in, or to continue to engage in sexual intercourse with a person other than the offender; or an act of self penetration; or an act of bestiality, either knowing that there is no consent or being recklessly indifferent about that consent.

Maximum penalty:life imprisonment.

[s 48 Criminal Law Consolidation Act 1935 (SA)]

The Criminal Law Consolidation Act 1935 s 5 defines sexual intercourse to include (whether heterosexual or homosexual):

  • penetration of the vagina, labia majora, or anus by any part of the body of another person or by any object; or
  • fellatio; or
  • cunnilingus.

This definition recognises the harm that can be done by inserting objects into the vagina or anus. The inclusion of penetration of body parts other than the vagina to rape legislation recognises that there is not one specific type of sexual intercourse that is inherently more significant than another.

Consent to sexual activity

Consent to sexual activity is defined in s 46 of the Criminal Law Consolidation Act 1935 (SA) as free and voluntary agreement. The notion of consent has been notoriously difficult to define with the added complication that juries have been known to use it to distinguish between what they regard as acceptable or unacceptable sexual practice.

In this context the legislation has been rewritten to provide a more comprehensive definition of what not having consent actually means.

Under s 46 a person is taken not to freely and voluntarily have agreed to sexual activity if:

  • the person agrees because there has been force applied (this includes an express or implied threat of force to the victim or to another person) or because of a threat to denegrate, humiliate, disgrace or harrass the person or another person; or
  • the victim was unlawfully detained at the time of the activity; or
  • the activity occurred whilst the victim was asleep or unconscious; or
  • the activity occurred whilst the victim was intoxicated to the point of being incapable of freely and voluntarily agreeing;or
  • the activity occurred whilst the victim was affected by a physical, mental or intellectual condition or impairment such that they were incapable of freely or voluntarily agreeing; or
  • the victim is unable to understand the nature of the activity; or
  • the victim agrees to engage in the activity with a person under a mistaken belief as to the identity of that person; or
  • the person is mistaken about the nature of the activity (for example, a person is taken not to freely and voluntarily agree to sexual activity if they agree to engage in the activity in the mistaken belief that the activity is necessary for the purposes of medical diagnosis, investigation or treatment, or for the purpose of hygiene).

Reckless indifference to consent

A person is guilty of rape if he or she knows that the other person does not consent (or has withdrawn their consent) or is recklessly indifferent as to whether the other person has consented. Reckless indifference in the context of sexual offences means a failure on the part of the accused to consider the other person’s wishes, they have utter disregard as to whether or not they have consented (or withdrawn consent).

Under s 47 of the Criminal Law Consolidation Act 1935 (SA) a person will be found to be recklessly indifferent to the fact of consent (or withdrawal of consent) if he or she:

  • is aware of the possibility that the other person might not be consenting (or has withdrawn consent) but decides to proceed regardless of that possibility; or
  • is aware of the possibility that the other person might not be consenting (or has withdrawn consent) but fails to take reasonable steps to ascertain whether the other person does in fact consent before proceeding;
  • does not give any thought to whether or not the other person is consenting to the act (or has withdrawn consent).

Even where an accused was intoxicated at the time the offending occurred, he or she will be guilty of rape provided intent to commit the offence can be shown [see further s 268 (2) Criminal Law Consolidation Act 1935 (SA)].

Compelled sexual manipulation

It is an offence for a person to compel another person to engage, or continue to engage, in:

  • an act of sexual manipulation of the offender; or
  • an act of sexual manipulation of a person other than the offender; or
  • an act of sexual self-manipulation

    where the person who is compelled does not consent to the act and the offender knows, or is recklessly indifferent to the fact that the person does not consent or has withdran consent.

Maximum penalty

For a basic offence: 10 years imprisonment

For an aggravated offence: 15 years imprisonment

[Criminal Law Consolidation Act 1935 (SA) s 48A]

Indecent assault

Indecent assault is an offence under the Criminal Law Consolidation Act 1935 (SA).

Maximum penalty:

Basic offence: 8 years imprisonment

Aggravated offence: 10 years imprisonment

(Aggravated offence includes where the victim is under 14 years old)

An assault is any kind of touching (or threat of touching) without a person's genuine consent. What is and what is not indecent is a matter of fact for the jury. It is a complex legal question as to whether an assault becomes indecent where the victim is unaware of the indecent aspects or motive of the assault, for example, when the victim believes that the assault is a legitimate medical procedure.

Consent can not be given by any person under 17 years old unless, when the victim is between 16 and 17 years, consent can be a defence for an accused who was under the age of 17 years. Consent can also be a defence if the accused can prove, on the balance of probability, that he or she believed on reasonable grounds that the victim was 17 years of age or over [Criminal Law Consolidation Act 1935 (SA) s 57(2)-(3)].

Consent cannot be given by a person under the age of 18 years in a case where the accused is the guardian, teacher, religious leader, or in certain other positions of authority over the alleged victim [Criminal Law Consolidation Act 1935 (SA) ss 57(1), 57(4)].

Unlawful sexual intercourse

The offence of Unlawful Sexual Intercourse includes:

  • A person who has sexual intercourse with a person under 14 years old.

    Maximum penalty: life imprisonment

    [Criminal Law Consolidation Act 1935 (SA) s 49(1)];

  • A person who has sexual intercourse with a person under 17 years old -

    Maximum penalty: 10 years imprisonment

    [Criminal Law Consolidation Act 1935 (SA) s 49(3)]

    (However there is a defence to this if the alleged victim is above 16 years old and the accused person either was under 17 years old themselves or reasonably believed that the alleged victim was over 17 years old [s 49(4)];

  • A person who has sexual intercourse with a person under 18 years old who holds a certain position of authority (such as teachers, foster-parents, guardians, step-parents, religious officials, spitirual leaders, social workers, employers, and others)

    Maximum penalty: 10 years imprisonment

    [Criminal Law Consolidation Act 1935 (SA) s 49(5), s 49(5a)];

  • A person who, knowing the other person is, by reason of intellectual disability, unable to understand the nature or consequences of sexual intercourse, has sexual intercourse with the other person;

    Maximum penalty: 10 years imprisonment

    [Criminal Law Consolidation Act 1935 (SA) s 49(6)].

Willingness of the alleged victim to engage in sexual intercourse is not a defence to any of these offences [s 49(8)]. Parental permission is also not a defence.

A useful website for young people and parents on this topic is: www.trustedmoments.com.au

Child sexual assault

The position of inequality between offender and victim and the life long effect on a victim makes these crimes particularly serious. As such the maximum penalties for these offences can be quite high. For example, the maximum penalty for the offence of Persistent sexual abuse of a child, is imprisonment for life [Criminal Law Consolidation Act 1935 (SA) s 50].

Offences of this nature are covered under the Criminal Law Consolidation Act 1935 (SA) and some of the specific provisions relating to children are explained above in this section under Unlawful sexual intercourse and Indecent assault.

Evidence

Complaints of sexual interference from children, particularly young children, involve difficulties in investigation and prosecution. Children often have trouble explaining what has happened either because of their lack of understanding or simply because of limited vocabulary and may also have problems with the exact dates that acts occurred.

Evidence given to courts is divided into sworn evidence and unsworn evidence. Sworn evidence is given when someone takes an oath or makes an affirmation before giving evidence [s 4 Evidence Act 1929 (SA)]. Unsworn evidence is evidence that is given without the obligation of an oath first being taken or an affirmation being made.

Children are able to give sworn evidence to a court, if they have a sufficient understanding of the obligation to be truthful involved in giving such sworn evidence. Even if a child cannot give sworn evidence that child may be allowed to give unsworn evidence. To give unsworn evidence a person must have a proper understanding of the difference between the truth and a lie, understand the importance of telling the truth and say to the Court that they will tell the truth when they give their evidence.

To give sworn evidence the person must have the understanding needed to give unsworn evidence but in addition must understand that in giving sworn evidence they acknowledge and accept the solemnity of taking an oath/ making an affirmation and the moral and/or legal sanctions that would follow if they fail to comply with the promise to tell the truth [s 9(1) Evidence Act 1929 (SA)].

Where unsworn evidence is given the judge must tell the jury the reason why the evidence was unsworn as opposed to sworn evidence and would almost always be required to warn the jury that they need to be cautious in deciding whether to accept it [ s 9(4)Evidence Act 1929 (SA)].

Section 9 of the Act does not apply to a statement made outside of court admitted as evidence under an exception to the rule against hearsay at common law or under the Act.

While a child gives evidence in a child sexual abuse matter, all non-essential persons will be ordered to leave the court [s 69(1a) Evidence Act 1929 (SA)] and the child will be allowed to have support person in court with them [s 12 Evidence Act 1929 (SA)]. The evidence of a child who is 14 years old or younger, may also be heard at a pre-trial special hearing under the procedure outlined in s 12AB of the Evidence Act (SA) (see below). There are also additional protections that can be put in place to protect a child who is of or under 14 years old when giving evidence in criminal proceedings [see s 13A Evidence Act 1929 (SA)].

Pre-trial special hearings

A pre-trial special hearing is, on application and under certain circumstances, available to a child of or under 14 years of age or a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions [s 12AB(14), s12AB(1)].

This type of trial is available only in trials of a charge of a serious offence against the person or of charges of contraventions of intervention orders or restraining orders [s 12AB(14)].

The hearing is also only available if the necessary facilities are readily available, it is practicable, and the arrangements can be made without prejudice to any party to the proceedings [s 12AB(1)(b)-(c)].

Once allowed this pre-trial special hearing enables the witness to give evidence before the trial with special provisions. This includes that the court must make the following provisions:

  • That the Court can change the setting in as it sees fit, such as a more informal setting;
  • If the witness has a physical disability or cognitive impairment that the evidence can be taken in a way that the Court thinks will minimise embarrassment or distress (including, if the witness has complex communication needs, communication assistance may be provided);
  • That an audio visual record of the evidence be made;
  • That the taking of evidence at the hearing be transmitted to the defendant by CCTV;
  • If the defendant attends the hearing in person, that appropriate measures be taken to prevent the witness and the defendant from directly seeing or hearing each other before, during, or after the hearing.

    [s 12AB(2)(a)]

The court may also make the following provisions:

  • That the witness can be accompanied at the hearing by a relative, friend or other person for the purpose of providing emotional support; and
  • Specify that the hearing is convened for any (or all) of the following purposes: examination of the witness; cross-examination of the witness; re-examination of the witness; and
  • Provide for any other matter that the court thinks fit.

    [s 12AB(b)]

There many more procedural laws around what can and can not be done at a pre-trial special hearing and legal advice should be sought.

Registration of offenders

Under the Child Sex Offenders Registration Act 2006 (SA) registrable offenders have to report their personal details to the Commissioner of Police [ss 11 - 13].

Who is a registrable offender?

A registrable offender is a person who:

  • a court has at any time sentenced for a class 1 or class 2 offence, or is, or has been, the subject of a child sex offender registration order; or
  • who is, or has been subject to a child sex offender registration order.

[Section 6(1) Child Sex Offenders Registration Act 2006 (SA)]

There are also provisions deeming people registrable where they were sentenced for the same types of offences interstate and overseas [see ss 6(2), 6(3), 7 and 8].

The following are not registrable offenders:

  • a person who committed a class 1 or class 2 offence as a child, or a person who has committed a single class 2 offence if the sentence did not include a term of imprisonment and was not a supervised sentence (such as community service or home detention);or
  • a person who was sentenced for a single class 2 offence more than 8 years prior to the commencement of the Act (18 October 2007);or
  • a person who was sentenced for a single class 1 offence or two class 2 offences more than 15 years prior to the commencement of the Act.

[ss 6(4)-(5) Child Sex Offenders Registration Act 2006 (SA)]

Additionally there are provisions covering where a person ceases to be a registrable offender (for example, where the only registrable offence that makes them registrable is quashed or set aside, reduced) [s 6(6)].

Class 1 offence:

Class 1 offences are listed in Schedule 1 Part 2 of the Act. They include serious offences under the Criminal Law Consolidation Act 1935 (SA) against a child victim (such as murder, endanger life, rape, unlawful sexual intercourse*, kidnapping) where the offence also involves a sexual offence.

(*does not include unlawful sexual intercourse where the victim consents and either: the offender was aged 18 and the victim not less than 15 at the time of the offence, or the offender was aged 19 and the victim not less than 16 at the time of the offence).

Class 1 offences also include offences against certain federal criminal laws such as offences sexual abuse, and other unlawful sexual activity with children under 16 (and in the case of a person of trust and authority children who are 16 and 17 also), committed outside of Australia. These offences include associated procuring, grooming, encouraging and benefiting from types of offences.

Conspiracy, attempt, aiding and abetting, counselling or procuring commission of any of these offences are also Class 1 offences [Schedule 1, clause 2(m) and (n)].

A full list of class 1 offences can be found in Schedule 1 Part 2 of the Act.

Class 2 offence:

Class 2 offences are listed in Schedule 1 Part 3 of the Act. They include offences (such as manslaughter, risk of harm, indecent assault) against a child where the offence also involves a sexual offence.

Class 2 offences also include offences against certain federal criminal laws such as trafficking children and obtaining child exploitation material (child pornography) through the post or similar, or the internet or telephone. Also grooming and procurement of children under 16 year via these means is covered in this class.

Conspiracy, attempt, aiding and abetting, counselling or procuring commission of any of these offences are also Class 2 offences [Schedule 1 clause 3 (l) and (m)].

A full list of class 2 offences can be found in Schedule 1 Part 2 of the Act.

Child sex offender registration order

Additionally, an order can be made on sentencing for other offences for the offender to comply with the reporting obligations of this Act if the court is satisfied that the person poses a risk to the sexual safety of any child or children [s 9 Child Sex Offenders Registration Act 2006 (SA)].

The Magistrates Court may also make an order that a person comply with the reporting obligations of the Act when they also make a paedophile restraint order [s 9(1a)(SA)].

Serious registrable offender

A serious registrable offender is a registrable repeat offender (committed on three separate occasions a class 1 or 2 offence or on 2 occasions if the victim was under the age of 14) [s 4(1)] Child Sex Offenders Registration Act 2006 (SA)]. Additionally, a person can be declared a serious registrable offender if the Commissioner of Police is satisfied that a registrable offender is at risk of committing further class 1 or 2 offences [s4(1), s 10A(1)]. A serious registrable offender can apply to the Commissioner for written reasons for the decision and there is ability to appeal this decision of the Commissioner [ss 10B(3) and 10B (1)].

The main affect of being declared a serious registrable offender is additional reporting requirements may be imposed (see below). Additionally the Commissioner may issue a requirement to a serious registrable offender to carry a tracking device, failing to wear, carry or maintain the device is an offence, maximum penalty, $10 000 or imprisonment for 2 years [s 66N].

Reporting obligations

Registrable offenders must report their personal details to the Commissioner of police where:

  • A registrable offender (other than a foreign registrable offender) who enters government custody in South Australia …as a consequence of having been sentenced for a registrable offence and who ceases to be in government custody whilst in South Australia. This must be done within 7 days after he or she ceases to be in government custody;

  • Any other person who becomes a registrable offender because he or she is sentenced for a class 1 or class 2 offence in South Australia or who becomes a registrable offender because of a child sex offender registration order made by a court in South Australia. This must be done within 7 days after he or she is sentenced for the class 1 or class 2 offence or the child sex offender registration order is made (as the case may be);

  • A registrable offender who enters South Australia from a foreign jurisdiction and who has not previously been required under this section to report his or her personal details to the Commissioner. This must be done within 14 days after entering and remaining in South Australia for 7 or more consecutive days, not counting any days spent in government custody;

  • A foreign registrable offender who has not previously reported his or her personal details to the Commissioner and who is in South Australia on the date on which he or she becomes a foreign registrable offender. This must be done within 7 days after he or she becomes a foreign registrable offender or 7 days after he or she ceases to be in government custody, whichever is the later; and

  • A registrable offender who is leaving South Australia must, report his or her personal details to the Commissioner before leaving South Australia unless he or she entered South Australia from a foreign jurisdiction and remained in South Australia for less than 7 consecutive days, not counting any days spent in government custody.

[s 11 Child Sex Offenders Registration Act 2006 (SA)].

There is also an obligation to report, within 7 days of sentencing, when a registrable offender's reporting period expires but he or she is then sentenced for a registrable offence, or becomes a foreign registrable offender [see s 12]

The personal details that must be reported by a registrable offender are set out in s 13 of the Child Sex Offenders Registration Act 2006 (SA) and include such things as names, cars owned or driven, tattoos, telephone numbers used, internet connection details, email addresses, passwords, usernames, and other details. These must be reported annually [s 15].

Under section 15A of the Act serious registrable offenders may be required to make additional reports as declared by the Commissioner of Police.

Despite any other provision in the Act, if a registrable offender has reportable contact with a child, the registrable offender must provide details of the contact to the Commissioner within two days of the contact occurring [s 20A].

Penalty for failing to comply with reporting obligations

The maximum penalty for failure to comply with reporting obligations without reasonable excuse is $25,000 or 5 years imprisonment [s 44 Child Sex Offenders Registration Act 2006 (SA)].

The register and access to it

The maintenance and access to the register are governed by sections 60-65 of the Child Sex Offenders Registration Act 2006 (SA). The register is maintained by the Commissioner of Police and the Commissioner is also responsible for developing, maintaining and adhering to guidelines about access to the register. A registrable offender is able to request, in writing, access to their information and seek amendment of incorrect information [s 63].

It is an offence to disclose confidential information about a registrable offender obtained under the Act, except in accordance with the Act (including law enforcement purposes and as otherwise set out). The maximum penalty for this is 5 years imprisonment [s 67].

Registrable offenders are prohibited from particular work

Registrable offenders are prohibited from applying for or engaging in work child-related work.

The maximum penalty for this is imprisonment for 5 years [s 65 Child Sex Offenders Registration Act 2006 (SA)].

This includes work involving contact with a child in connection with any of the following:

(a) pre-schools or kindergartens;

(b) child care centres;

(c) educational institutions for children;

(d) child protection services;

(e) juvenile detention centres;

(f) refuges or other residential facilities used by children;

(g) foster care for children;

(h) hospital wards or out-patient services (whether public or private) in which children are ordinarily patients;

(i) overnight camps regardless of the type of accommodation or of how many children are involved;

(j) clubs, associations or movements (including of a cultural, recreational or sporting nature) with significant child membership or involvement;

(k) programs or events for children provided by any institution, agency or organisation;

(l) religious or spiritual organisations;

(m) counselling or other support services for children;

(n) commercial baby sitting or child minding services;

(o) commercial tuition services for children;

(p) services for the transport of children; and

(q) taxi services and hire car services.

[s 64(1) Child Sex Offenders Registration Act 2006 (SA)].

There is a defence to this charge where the accused can prove that they did not know that the work was child related work [s 65(2)].

The Commissioner of Police can give a person who has committed a class 1 or 2 offence written notice to provide them with information about their work [s 65A(1)]. It is an offence to fail to comply with such a notice, maximum penalty $10 000 or imprisonment for 5 years [s 65A(2)].

Under the Act a police officer are able to disclose to any employer or prospective employer that a person has been arrested or reported for a class 1 or 2 offence and provide details of the alleged offence [s 65A(3)(b)].

A person engaged in child-related work who is arrested or reported for a class 1 or 2 offence must disclose this to their employer within 7 days (in the case of an arrest or report prior to commencement of the section – within 7 days of commencement)[s 66(1)]. A person must also, on application for work, disclose if they have been reported for such offences if proceedings have not been finalised [s 66(2)]. Under both of these provisions the maximum penalty is $5000.

Exemptions, modifications and suspensions granted by the Commissioner of police.

The amending Act has inserted Part 5A—Exemptions, modifications and suspensions granted by Commissioner. This deals with the general power of the Commissioner of police, on application (and payment of a fee) of a registrable offender, make a declaration to modify their reporting obligations [s 66B Child Sex Offenders Registration Act 2006 (SA)].

The Commissioner of Police may only make such a declaration if:

  • The relevant offences against were either indecent assault, acts of gross indecency or unlawful sexual intercourse with a person under 17 years; and
  • the registrable offender has been a registrable offender for at least 12 months and has complied with the Act during that period; and
  • the Commissioner is satisfied that the offender does not pose a risk to the safety and well-being of children [s 66B(4)].

The Commissioner of Police may not make such a declaration if:

  • there was more than one victim of the relevant offences; or
  • the offender was more than 10 years older than the victim at the time of any relevant offence; or
  • the victim of any relevant offence was less than 14 years old; or
  • any relevant offence was committed in connection with child-related work engaged in by the offender [s 66B(5)].

The Commissioner of Police may refuse to consider an application to make such a declaration unless the registrable offender undergoes a risk assessment at their own expense [s 66B(2) –(3)]. The Commissioner must take into account any risk assessment, any other offending, any victim impact statement and the sentencing remarks relating to each relevant offence [s 66B(7)].

If the Commissioner does make a declaration under this part, the Commissioner can attach conditions to it [s 66B(6)].

The Commissioner of Police may also, with or without application, suspend a person’s reporting obligations on the basis that they have a disability that makes it impossible for the person to satisfy his or her reporting obligations and do not pose a risk to the safety and well-being of children [s 66C].

The Commissioner of Police may only revoke such a declaration if there is a change to the grounds on which it was made or the person is charged with any class 1 or 2 offences. The Commissioner must give the registrable offender written notice, as soon as practicable, of any declaration or revocation, or variation [ s66D(4)].

Applications can not be made within 12 months of each other by the same registrable offender [s66D(1)(c)].

Applicants can appeal decisions of the Commissioner of Police under this Part to the Administrative and Disciplinary Division of the District Court [s 66E].

Publication of information about registrable offenders

The Commissioner can publish information about registrable offenders where the registrable offender’s whereabouts is unknown and the registrable offender either has failed to comply with reporting obligations or has provided false or misleading information [see ss 66F-H Child Sex Offenders Registration Act 2006 (SA)].

The Act contains prohibitions on inciting animosity or harassing people identified as offenders [s 66I] and prohibitions on the publication of identifying information without written approval from the Minister [s 66J].

Change of name of registrable offender

A registrable offender must obtain the Commissioner of Police’s written permission before registering, or applying to register, to change their name. The maximum penalty for this is $10 000 or imprisonment for 2 years [s 66K].

Information provided to parents or guardian

A registrable offender who stays overnight in a house where there is a child or generally resides in the same household as a child must tell the parent or guardian of that child that they are a registrable offender and what the offence/s were that caused them becoming a registrable offender. The maximum penalty for failing to do this is $25 000 or imprisonment for 5 years [s 66L].

Search powers

Police have extensive powers to search premises of registrable offenders to ensure compliance with the Act. Included in this is the ability to break open and search cupboards etc, search computers and other devices [s 66M]. If a computer or other device requires a password to be inspected, the registrable offender must provide that, maximum penalty, imprisonment for 2 years [s 66M(2)].

Effect of spent convictions

The fact that an offence in respect of which a registrable offender has been found guilty becomes spent does not affect the status of the offence as a registrable offence for the purposes of the Child Sex Offenders Registration Act 2006 (SA) in respect of the registrable offender [s 71].

Sexual offences where the victim has a cognitive impairment (for example an intellectual disability)

Under section 51 of the Criminal Law Consolidation Act 1935 (SA) there are two specific sexual offences where the victim has a cognitive disability:

  • sexual intercourse or indecent contact; and
  • indecent manner.

Sexual intercourse or indecent contact

Under section 51(1) of the Criminal Law Consolidation Act 1935 (SA) it is an offence for someone who provides a service to a person with a cognitive impairment to, by undue influence, have sexual intercourse or indecent contact with that person.

This offence applies whether or not the offender is a worker or a volunteer.

Maximum penalty: 10 years imprisonment

Indecent manner

Under section 51(2) of the Criminal Law Consolidation Act 1935 (SA) it is an offence for someone who provides a service to a person with a cognitive impairment to behave in an indecent manner in the presence of that person without the person’s consent.

There is no consent if the consent was only obtained by undue influence.

This offence applies whether or not the offender is a worker or a volunteer.

Maximum penalty:

First offence - 3 years imprisonment

Subsequent offence – 5 years imprisonment

What is a cognitive impairment?

For these offences cognitive impairment includes:

  • an intellectual disability;
  • a developmental disorder (including autistic spectrum disorders);
  • a neurological disorder;
  • dementia;
  • mental impairment;
  • a brain injury.

[Criminal Law Consolidation Act 1935 (SA) s 51(5)]

Undue influence

Undue influence is about improperly taking advantage of another person’s weakness to get them to agree to something.

Undue influence is defined in these offences as including the abuse of a position of trust, power or authority [Criminal Law Consolidation Act 1935 (SA) s 51(5)].

Evidence – reverse burden of proof

For the purpose of these offences a defendant who is in the position of power, trust, or authority, to the alleged victim is presumed to have obtained consent of the victim by undue influence.

This is the case unless the defendant proves, on the balance of probabilities, that they did not get consent in that way [Criminal Law Consolidation Act 1935 (SA) s 51(4)].

Evidence - victim or witness with cognitive impairment

The court can also make special arrangements for protecting a witness with a cognitive impairment from embarrassment or distress when giving evidence [ see further s13 - 13A, 14A Evidence Act 1929 (SA), see also: Pre-trial special hearings].

Partner exception

The offences do not apply to a person who is legally married to, or the domestic partner of, the person with a cognitive impairment [Criminal Law Consolidation Act 1935 (SA) s 51(3)].

However other criminal laws apply in relation to rape, assault, and other offences, even if the people are legally married or in a de facto relationship [see further the sections in the handbook on family violence, rape, compelled sexual manipulation, indecent assault].

Further information

The Legal Services Commission runs community legal education programs for people living with a disability and workers – see the page on Law 4 All.

The Attorney General’s Department of South Australia website contains further information – see: Disability Justice Plan.

Other Sexual Offences

The offences covered in this Section include offences from both Commonwealth and South Australian legislation.

Pornography

It is not an offence to sell pornography, however it is an offence to exhibit or sell indecent or offensive material. Indecent and offencive include material that is immoral or obscene; or includes:

  • violence or cruelty; or
  • the manufacture, supply, aquisition or use of drugs or instruments of violence or cruelty; or
  • instructions in crime; or
  • revolting or abhorrent things; and

would cause serious and general offence amongst reasonable adult members of the community.

Maximum penalty: $20 000 or 6 months imprisonment

[Summary Offences Act 1953 (SA) s 33(2)]

It is also an offence, with the same penalty, to do the following with indecent or offensive material:

  • produce or take any step in the production of such material for the purpose of selling it [s 33(2)(a)];
  • show or put it in a public place or have it visible from a public place [ss 33(2)(c)-(d)];
  • show such material to a person so as to offend or insult that person or show it in a public place [s 33(2)(e)]; or
  • give or show it to a minor [ss 33(2)(f)-(g)].

However, if a parent or guardian shows such material to his/her own child, it is not an offence under section 33(2) but, depending on the circumstances it is possible that charges of gross indecency could follow or that child abuse issues could be raised: see Child Protection.

The indecent or offensive material can be confiscated [s 33(9)].

No material is indecent or offensive if it is intended for the advancement or dissemination of legal, medical or scientific knowledge or if it is part of a work of artistic merit where there is no undue emphasis on its indecent or offensive aspects [s 33(5)].

Any prosecution under s 33 cannot be commenced without consent of the Minister and the Minister must have regard to the South Australian Classification Council in making their decision [ss 33(6)-(7)].

See also the Classification (Publications, Films and Computer Games) Act 1995 (SA).

Child exploitation material (child pornography)
Possession of child exploitation material (child pornography)

Any person who is in possession of child exploitation material (child pornography) knowing of its pornographic nature; or who intends to obtain, or makes a step towards obtaining, exploitation material is guilty of an offence.

Maximum penalty:

  • First offence:

    basic offence: 5 years imprisonment

    aggravated offence*: 7 years imprisonment

  • Subsequent offence:

    basic offence: 7 years imprisonment

    aggravated offence*: 10 years imprisonment

[s 63A(1) of the Criminal Law Consolidation Act 1935 (SA)].

It is a defence to this charge to prove that the material was unsolicited and that the person took reasonable steps to get rid of it as soon as they became aware of the material and its nature [s 63A(2)].

* An aggravated offence, for the purpose of this offence, includes where the offender committed the offence knowing that the victim of the offence was aged under 14 at the time [see s 5AA(1)(e)]. It can also include other general aggravating factors as set out in s 5AA.

Production of child exploitation material (child pornography)

Any person who knowingly produces, or takes part in any stage of the production of, child exploitation material (child pornography) is guilty of an offence. It is also an offence to distribute, or take part in any stage of the distribution of, child exploitation material whilst knowing of its pornographic nature.

Maximum penalty:

  • basic offence: 10 years imprisonment
  • aggravated offence*: 12 years imprisonment

[s 63 of the Criminal Law Consolidation Act 1935 (SA)]

* An aggravated offence, for the purpose of this offence, includes where the offender committed the offence knowing that the victim of the offence was aged under 14 at the time [see s 5AA(1)(e)]. It can also include other general aggravating factors as set out in s 5AA.

'Sexting' and the production and dissemination of child exploitation material (child pornography)

What is sexting?

'Sexting involves sending suggestive or sexual images through mobile phones that can then be posted on the internet or forwarded to other people.' (NSW government media release 3 May 09).

Is sexting illegal?

Yes, if it involves the production or dissemination of child exploitation material, or offends laws against indecency and offensive or harassing behaviour.

Federal Law

Under the Criminal Code Act 1995 (Cth) it is an offence to use phone or internet services to access, send, publish or solicit (ask others to provide) material that is child pornography [s 474.19(a)].

Under the Act child pornography includes material includes:

  • an image of someone (or a description of someone) who is, or appears to be, under 18 years old, engaged in (or appears to be engaged in) sexual activity, in a sexual pose, or is in the presence of a person engaging in sexual pose or activity; or
  • depicts for a sexual purpose or describes, the sexual organs or anal region or female breasts of a person who is or appears to be, or is implied to be under 18 years old; and

is offensive to reasonable persons [see s 473.1 Criminal Code Act 1995 (Cth)].

Other offences under the Criminal Code Act 1995 (Cth) that could be committed by sexting include:

  • use of phone or internet services to ‘groom’ children under 16 years old for sexual activity [s 474.27];
  • procurement of under 16 year olds for sexual activity [s 474.26];
  • use of phone or internet services to send indecent communications to children under 16; and
  • the use of phone or internet services to menace harass or cause offence [s 474.17].

State Law

In South Australia sexting is illegal under the Criminal Law Consolidation Act 1935 (SA) if it involves the possession, production or dissemination of child exploitation material.

Under the Criminal Law Consolidation Act 1935 (SA):

Child exploitation material means material that:

  • describes or depicts a person who is under the age of 17, or who appears to be under the age of 17, engaging in sexual activity ; or consists of the image of a child or bodily parts of a child, or appears to have involved a child; and
  • is of a pornographic nature (intended to excite or gratify sexual interest; or to excite or gratify a sadistic or other perverted interest in violence or cruelty) [s 62].

Production and dissemination includes producing or taking steps to produce or disseminate child exploitation material, knowing of its pornographic nature [s 63]. The maximum penalty for this offence is 10 years imprisonment for a basic offence. 12 years imprisonment for an aggravated offence (e.g. if the child was under 14 or an offensive weapon was used or threatened to be used).

What if someone sent me child exploitation material (child pornography) even though I didn’t ask for it?

It is a defence to a charge of possessing child exploitation material if it can be proved that the material came into the defendant’s possession unsolicited and that the defendant, as soon as he or she became aware of the material and its pornographic nature, took reasonable steps to get rid of it [s 63A(2)].

Distribution of invasive images ('revenge porn')

It is an offence to distribute an invasive image of another person knowing, or having reason to believe, that the person does not consent to its distribution (often referred to as 'revenge porn'). The offence applies to both child and adult offenders.

An invasive image is defined as one in which the person is shown a place other than a public place and engaged in a private act, or alternatively, in a state of undress such that their bare genital or anal region can be seen. For females the definition also includes where bare breasts are visible. The definition excludes images that fall within the standards of morality, decency and propriety generally accepted by reasonable adults in the community (e.g. parents sending innocent pictures of their baby to family and friends).

It is a defence to a charge of distributing an invasive image if it was done for a purpose connected with law enforcement, for a medical, legal or scientific purpose or if it was undertaken by a licenced investigation agent in the course of obtaining evidence in connection with a claim for compensation, damages, a payment under a contract or some other benefit.

Maximum penalty: in the case of a person aged under 17 - $20 000 or 4 years imprisonment; in any other case - $10 000 or 2 years imprisonment.

[See Summary Offences Act 1953 (SA) s 26C]

Threats to distribute invasive images

A person who threatens to distribute an invasive image of a person with the intention of causing fear to that person, or being recklessly indifferent as to whether fear is caused, commits an offence [Summary Offences Act 1953 (SA) s 26DA(1)]. It is often associated with the offence of distribution of invasive images (see above). Both child and adult offenders can be charged with this offence.

Maximum penalty: if the invasive image is of a person under the age of 17 - $10 000 or imprisonment for 2 years; in any other case - $5 000 or imprisonment for 1 year.

A person who threatens to distribute an image obtained by indecent filming of a person with the intention of causing fear to that person, or being recklessly indifferent as to whether fear is caused, commits an offence [Summary Offences Act 1953 (SA) s 26DA(2)].

Maximum penalty: if the person filmed was under the age of 17 - $10 000 or imprisonment for 2 years; in any other case - $5 000 or imprisonment for 1 year.

Defences: It is a defence to either charge that the person filmed or photographed consented to that particular distribution of the image the subject of the filming; or the person consented to the distribution of the image the subject of the filming generally. For either defence to apply the person the subject of the filming or photographing must not, at the time of the alleged offence, have withdrawn their consent to the distribution of the image [s 26DA(3)].

What constitutes a threat?

A threat may be either directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct. Both explicit and implicit threats are recognised [s 26DA(4)].

Procuring child to commit indecent act

It is an offence for a person to encourage or procure a child to commit an indecent act.

It is also an offence to, for the person's own, or anothers, sexual gratification, to cause or persuade a child to expose any part of his or her body or to make a photographic, electronic or other record from which the image of a child engaged in a private act may be reproduced. A private act includes any sexual act, nudity or intimate bodily function.

Maximum penalty:

  • basic offence: 10 years imprisonment
  • aggravated offence*: 12 years imprisonment

[s 63B(1) of the Criminal Law Consolidation Act 1935 (SA)]

It is also an offence to procure a child or to make a communication with the intention of procuring a child to engage in sexual activity.

Maximum penalty:

  • basic offence: 10 years imprisonment
  • aggravated offence*: 12 years imprisonment

[s 63B(3) of the Criminal Law Consolidation Act 1935 (SA)]

It is a defence under these sections if the accused person (other than accused people in positions of authority) prove that:

  • the child was 16 years or older; and
  • the accused person was either under 17 years old or believed on reasonable grounds that the person was of or above 17 years old.

[s 63B(4) of the Criminal Law Consolidation Act 1935 (SA)]

* An aggravated offence, for the purpose of this offence, includes where the offender committed the offence knowing that the victim of the offence was aged under 14 at the time [see s 5AA(1)(e)]. It can also include other general aggravating factors as set out in s 5AA.

Incest

Any people who are related either as parent and child, grandparent and grandchild or as brother and sister (including half-siblings) who have sexual intercourse with each other are guilty of an offence. This does not include a family member related by marriage or adoption alone.

Maximum penalty: 10 years imprisonment

[Criminal Law Consolidation Act 1935 (SA), s 72]

The consent of the parties to the sexual intercourse is irrelevant, however, ignorance of the relationship may be a defence (for example, a brother and sister separated from birth and unaware that they are related) [s 72(2)].

Bigamy

The Marriage Act 1961 (Cth) provides that any person who, while married, goes through a form or ceremony of marriage with any other person is guilty of an offence [s 94(1)].

Maximum Penalty: 5 years imprisonment

It will be a defence if the accused person can show reasonable grounds for having believed that he or she was not married.

It is also a defence to prove, on the balance of probabilities, that the spouse had been absent for such a time and in such circumstances as to provide reasonable grounds for presuming that the spouse was dead and also that the person believed that his or her spouse was dead. It is enough for the first part of the defence if the accused can prove that the spouse had been continually absent for seven years and that the accused had no reason to believe that the spouse was alive in that period of seven years [see s94(2)-(3)].

The Act also provides that any person who goes through a form or ceremony of marriage with a person who is married is guilty of an offence if the accused knows, or has reasonable grounds to believe, that the other person is married [s 94(4)].

Maximum Penalty: 5 years imprisonment

There is an exemption for those people who wish to go through a form or ceremony of marriage with each other more than once [s 94(5)].

The spouse of the accused can be forced to give evidence in a bigamy case, but that evidence alone is not enough to establish that the accused was married at the time of the offence [ss 94(6)-(7)].

Evidence

An alleged victim of a rape cannot be asked questions about his or her sexual reputation [s 34L Evidence Act 1929 (SA) s34L(1)(a)]. There is an exception in that cross examination of the alleged victim regarding recent sexual activities with the accused is permitted.

In certain circumstances, the trial judge may give permission for cross-examination concerning the alleged victim's sexual activities with people other than the accused. In deciding whether to give permission for such a questioning, the trial judge must bear in mind that alleged victims should not be subjected to unnecessary humiliation, distress or embarrassment, the admission of such evidence also has to be in the interests of justice. The trial judge must also consider whether the evidence that might be elicited in such cross examination is relevant to the issues at trial and also whether it might have the effect of impairing the credibility of the alleged victim. [see further s 34L(2) Evidence Act 1929 (SA)].

Corroboration is confirmation (or backing up) of an aspect of a witness's evidence by other independent evidence. In a trial for sexual assault it could be the findings of a doctor who examines the victim, torn or stained clothes worn by the victim, or the evidence of an eye-witness. In the past a judge had to tell a jury that it was unsafe to convict a person based on the uncorroborated evidence of the victim (Kelleher v The Queen(1974) 41 CLR 534). A judge is no longer required to issue this warning [s 34L(5) Evidence Act 1929 (SA) ] but in appropriate cases judges still do.

Broadly speaking, the law of evidence does not permit a witness to describe statements made by other people if that evidence is meant to show that what that other person said was true (known as hearsay). An exception to this rule is that a witness is able, in certain circumstances, to give evidence of what an alleged victim said very soon after an alleged sexual attack. This is known as evidence of 'recent complaint' [see Evidence Act 1929 (SA) s 34M(3)]. However, a jury can only ever use it as proof of the fact that a complaint had been made and evidence of consistency with the alleged victim and not as truth of what the words of complaint actually described [s 34M(4)].

See further section 34N Evidence Act 1929 (SA) on the directions a judge can make about consent in certain cases.

Young children and some people with disabilities

Some out of court statements made by alleged victims of sexual offences are admissible and may be used to prove the truth of the facts asserted in that statement. This is where the alleged victim is a child 14 years old, or younger or a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions. Further considerations apply before this evidence is admitted - see further s 34LA Evidence Act 1929 (SA).

Other evidential issues relevant in child sexual assault matters are covered separately.

Medical examination

It is very important for a victim of rape or sexual assault, to be a medically examined as soon as possible after the assault for the following reasons:

  • to determine if there has been any injury, especially internal, that may not be readily apparent
  • to test for a sexually transmitted disease and/or unwanted pregnancy
  • to collect medical evidence for possible prosecution.

The victim will be asked to have a complete medical examination. This may involve a pelvic (internal) examination, the collection of specimens for laboratory tests and the taking of photographs of injuries related to the offence. The kinds of specimens include combings of the pubic hair and vaginal or anal swabs to test for the presence of semen. Photographs may be taken of any of the injuries and may include the face, body, vaginal or anal area. If the victim decides not to proceed with immediate police action, the laboratory specimens will be held at the hospital for seventy two hours or longer if requested.

The victim can be accompanied through the medical examination by a friend, social worker or nurse. As well, he or she can request total privacy in treatment and can refuse the collection of medical evidence for use in a court case, although refusal might jeopardise a prosecution. A victim can also ask questions and receive explanations of the reasons for every test and procedure.

The proceedures for taking DNA etc from victims and volunteers is set out in Division 1 of the Criminal Law (Forensic Proceedures) Act 2007 (SA). Volounteers and Victims also have the right to request the destruction of that information under section 39 of that Act.

Yarrow Place is a Rape and Sexual Assault Service in South Australia - it has counsellors and on-call crisis response workers, they can provide medical care, including the collection of forensic evidence - see their website fo rmore information: http://www.yarrowplace.sa.gov.au/rape.htm.

See also the Victims of Crime website about your consent as a victim to forensic proceedures (such as the taking of DNA evidence): http://www.voc.sa.gov.au/forensic-procedures

Proof of physical injury

A person does not give 'consent' to sexual intercourse if due to threats or terror they submit. Where sexual intercourse has occurred and the victim's will has been overborne by a threat, it is not necessary for the Crown to prove physical injuries to the victim. This is understandable, as in this situation there may well be no injury. An example would be a woman seeming to co-operate in circumstances where her child has been threatened with violence.

The lack of physical injury to a victim may be very relevant to the defence in some circumstances and may be the subject of substantial comment by defence lawyers when addressing the jury. The importance that is placed on physical injury will depend upon the circumstances. For example, if given the statement the victim has made, injuries would be expected, any absence of injury would be very important. However, if injuries could not be expected the absence of injury would not be important.

Compensation for Victims

Where a person is convicted of the sexual assault, the victim has the right to make a claim for compensation for any loss or injury (including psychological injury) caused by the offence. Compensation can be sought directly against the offender, either as a separate action or the judge who has heard the criminal case and who will be aware of the particular facts of the assault can make an order for compensation. Alternatively, a claim can be made for victims of crime compensation. Either claim can be made up to three years after the date the offence took place, see : Victims of crime compensation.

See also the Commissioner for Victim's Rights website.

Legal Procedures

The police will generally allow a victim to be interviewed by a police officer of his or her gender if asked. During the proceedings, the victim has the right to be accompanied by a friend, family member or counsellor. If the victim does not wish the case to go to court, the rape can be informally reported for police information. Once a formal report is made, it is up to the police whether the matter is pursued or dropped.

If someone is charged with rape and decides to defend the charge, a date will be set for the committal proceedings, usually a matter of some months after the offence. The committal involves the giving of all of the prosecution evidence in a Magistrates Court before a magistrate who decides whether there is sufficient evidence for the case to go to trial before a judge and jury.

The alleged victim is almost always not required to appear in person at any committal on a sexual offence charge. The usual procedure is that he or she will only be required to give their evidence once, at trial. The defence is provided with a copy of the alleged victim's statement before the committal. An accused person will only be able to question a witness (cross examine) for the prosecution if it can be shown that special reasons exist. Thus it is normal for an alleged victim to have their account of events tested only once, at trial.

If the magistrate decides that there is enough evidence the defendant will be committed for trial at the next available sitting of the District or Supreme Court.

The trial usually takes place approximately six months after the committal but this may vary considerably. Given the concerns over delays in the legal process and the adverse affect of this on child victims provisions now state that trials of child sex offences are to be given priority over less urgent criminal matters.

Vulnerable witness provisions

Facilities are now available which allows a witness to give evidence from behind a screen or from a separate room from where the witness's image is projected into the court room by use of video camera [s13A Evidence Act 1929 (SA)].

Where an accused is unrepresented they are prevented from cross examining the victim themselves, instead they can apply to have legal assistance for that part of their case [see further s13B Evidence Act 1929 (SA)].

Improper questioning by defence counsel (lawyer) is prohibited [s 25 Evidence Act 1929 (SA)]. This includes questions put in a humiliating, insulting or otherwise inappropriate manner, it includes unnecessarily repetitive or oppressive questioning, and it also includes questions apparently based on stereotypes such as sexual or racial or cultural stereotypes or stereotypes based on age or disability [s 25].

Publication - restriction on reporting on sexual offences

Unless the accused person consents, it is an offence under section 71A of the Evidence Act 1929 (SA) to publish the identity of an accused person, any evidence or report on proceedings relating to sexual offences by an accused person before:

  • the accused is committed for trial or sentence (when charged with a minor or major indictable offence and the accused elects to be tried by a superior court); or
  • the accused pleads guilty or is found guilty (when charged with a summary offence or minor indictable offence); or otherwise
  • the charge is dismissed or the proceedings lapse (for example, by reason of death of the accused).

    Maximum penalty : $10 000 for a person, $120 000 for a corporation

However, under subsection 71A(3), the court may make a publication order, varying or removing the restriction on publishing and reporting altogether, if satisfied that it may assist with the investigation of an offence or is otherwise in the public interest. On such an application, the court will hear from all those with a 'proper interest' in the matter and will make findings of fact on the balance of probabilites without necessarily taking evidence.

Similar provisions apply to victims of sexual offences. A victim's identity may be published with the victim's consent or the judge's authorisation [s 71A(4)]. The same penalty applies to unlawful publication of victim's identity information.

Indeterminate detention

Part 3 Division 5 of the Sentencing Act 2017 (SA) provides for the indeterminate detention of a person. Such an order can be made where at least two independent medical practitioners independently examine the person and determine that the person examined is incapable or unwilling to control his or her sexual instincts (to commit sexual offences) [see s 57(6)].

Such an order can also be made against a person for an offence of failing to comply with a reporting obligation relating to

reportable contact with a child without a reasonable excuse where the defendant is a registrable offender within the meaning of the Child Sex Offenders Registration Act 2006 (SA).

This order of indeterminate detention is then reviewed every twelve months by either the Training Centre Review Board or Parole Board, depending on where they are in custody [see further s 23(9)].

Paedophile restraint orders

Courts have the power, where appropriate, to make a paedophile restraint order where a person has been found loitering near children; or is required to comply with reporting obligations imposed by Part 3 of the Child Sex Offenders Registration Act 2006 (SA) and either:

  • the person uses the Internet to communicate with children that they have no good reason to communicate with; or
  • the person has been found loitering near children on at least one previous occasion and there is reason to believe the person may, unless restrained, again loiter near children or use the Internet.

    [s 99AA(1) Criminal Procedure Act 1921 (SA)]

In considering whether to make an order the court considers a number of matters such as whether the person's behaviour aroused reasonable apprehension or fear in a child or if the person may act inappropriately towards a child. The court will also consider any prior criminal record, any evidence of sexual dysfunction suffered by the person and any other relevant matters. A child sexual offence relates to a child aged under 16 years and is widely defined to include rape, indecent assault, incest, unlawful sexual intercourse, gross indecency, child prostitution and any offence involving indecency or sexual misbehaviour. It also includes any attempts to commit these offences [s 99AA(3)].

The conditions of a paedophile restraint order can be quite broad and can restrain the person from loitering near children in any circumstances and from using the Internet in a specified manner [s 99AA(2)]. However, generally they are more restrictive, restraining the person from loitering near children in specified places or circumstances.

The procedure to obtain a paedophile restraint order is similar to a general restraining order intervention order [see further s 99AA Criminal Procedure Act 1921 (SA) and the section in this handbook on family violence].

See further the section in this handbook on Child Sexual Assault for information on registration of offenders for other restrictions imposed on child sex offenders.

    Sexual Offences  :  Last Revised: Thu Aug 28th 2014
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