Sexual Offences

SEXUAL OFFENCES

There are a three broad categories of sexual offences that are covered in this section:

  • Offences against morality;
  • General sexual offences including sexual offences committed against children; and
  • Offences relating to child exploitation material.

In this section, unless otherwise stated the relevant legislation is the Criminal Code 1913 (WA) (The Code).  The Code is found in Appendix B of the Criminal Code Act Compilation Act 1913 (WA).

Offences Against Morality

The term “morality” generally refers to the acceptable moral standards of the society at the relevant time.  By its nature, this standard changes over time.  As an illustration, until it was repealed in 2002, it was an offence in Western Australia for two males to kiss in public.  Due to the shift in the moral standards of society towards homosexuality, the offence was repealed and it is no longer against the law.

The following offences are still classified as offences that are “injurious to the public in general”.  They are listed in the order in which they appear in The Code.

Carnal Knowledge/ Carnal Connection

This term is used less frequently in current laws; however, it is still used in the context of some offences including some which are described in this section.  “Carnal knowledge” is broadly defined as sexual penetration of another person and it includes penetration of the vagina or anus of a male or female.  The term “carnal connection” is also used and has the same definition as “carnal knowledge”.

Carnal Knowledge of an Animal

Pursuant to s.181 of the Criminal Code 1913 (WA) (The Code), it is a crime for a person to have “carnal knowledge” of an “animal”.  “Animal” is any living beast other than humans.

The term “carnal knowledge” is a term which is not used widely in present day laws.  It can be broadly defined, in the context of this crime, to include sexual penetration of an animal.

To prove “carnal knowledge of an animal”, the prosecution need only prove that the “carnal knowledge” occurred.  For obvious reasons, elements such as consent are irrelevant.

Carnal knowledge of an animal” must be heard in the District Court.  It carries a maximum penalty of 7 years imprisonment.

Occupier or Owner Allowing Young Person to be on Premises for Unlawful Carnal Knowledge

This crime is found at s.186 of the Criminal Code 1913 (WA) (The Code).  It appears to relate to a child under the age of 16 years being on a premises for the purpose of prostitution.

It is a crime for person to induce or knowingly permit a child under 16 to be on or in premises, for the purpose of being “carnally known”, which the person:

  • Owns;
  • Occupies; or
  • Manages or controls or assists to manage or control.

It does need to be proven that the child was “carnally known”, only that they were on the premises for that purpose.  The term “carnally known” is used as consent is not an element of this offence.  As such, a person charged cannot rely on a defence of consent on the part of the child involved.  This means it is irrelevant if a child found on such premises consented to being there for the requisite purpose.

It is a defence if the person charged believed on reasonable grounds that the child was of or above the age of 16 years.

Occupier or owner allowing young person to be found on premises for unlawful carnal knowledge” cannot be heard summarily and must be heard in the District Court.  The maximum penalty is:

  • If the child is under 16 years of age but not under 13 years of age – 2 years imprisonment; or
  • If the child is under 13 years of age – 20 years imprisonment.

Facilitating a Sexual Offence Against a Child Outside of Western Australia

Pursuant to s.187 of the Criminal Code 1913 (WA) (The Code), a person commits a crime if they:

  • Do any act for the purpose of enabling or aiding another person;
  • Aid another person; or
  • Counsel or procure another person;

to engage in “prohibited conduct”.  “Prohibited conduct” is defined as “…the doing of an act in a place outside Western Australia in respect of a child that, if done in Western Australia, would constitute an offence under Chapter XXXI”.  Offences under Chapter XXXI include:

  • Sexual offences against children;
  • Indecent assault; and
  • Sexual penetration without consent.

A person does not need to engage in any “prohibited conduct”, they only need to do acts which procure, enable of assist another person to do so.

Facilitating a sexual offence against a child outside of Western Australia” was enacted to deal predominantly with the rise of “child sex tourism”.  An example of how this can be committed is where a person, over the internet, arranges to view sexual activity involving a child.  The sexual activity does not involve the person and it occurs in another country, however, under this section, the person viewing it commits this crime.

Facilitating a sexual offence against a child outside of Western Australia” must be heard in the District Court and carries a maximum penalty of imprisonment for 20 years.

Being Involved with Prostitution

Premises Used for Prostitution

Pursuant to s.190(1) of the Criminal Code 1913 (WA) (The Code), it is a crime to operate a brothel.  Whilst prostitution can be legal, a crime is committed by any person who:

  • keeps, manages or assists in keeping or managing any premises for the purpose of prostitution;
  • being the tenant, lessee or occupier of premises, allows them to be used for the purpose of prostitution; or
  • Being the lessor or landlord or agent of the lessor or landlord of premises lets those premises, or part of the premises, with the knowledge that they will be used for prostitution or collects rent knowing that the premises are being used for prostitution.

Being involved with “premises used for prostitution” can be heard summarily in the Magistrates Court or on indictment in the District Court.  If the matter is heard summarily, the maximum penalty is imprisonment for 12 months and/ or a fine of $12,000.00.  The maximum penalty if the matter is heard in the District Court is 3 years imprisonment.

Whilst it is illegal to operate a brothel in Western Australia, it appears there are businesses operating which appear to be using premises in contravention of s.190(1).  However, the statistics relating to the laying of charges against people who contravene this section appear to reflect a relatively low number of prosecutions.  Historically, there has been a “containment police” whereby police closely monitored the activities of such premises and conditions were imposed on aspects of their operation.  This “policy” no longer exists in an official sense but may still operate on a practical level.

Living on the Earnings of a Prostitute

Pursuant to s.190(3) of the Criminal Code 1913 (WA) (The Code), it is a crime for a person to live wholly or partly on earnings that person knows come from prostitution.  This does not include the person providing the actual prostitution service.  It relates to a person who knowingly lives off the earnings of another person who is a prostitute. 

It is not relevant whether the person who is working as a prostitute is doing so legally or illegally.

Pursuant to s.190(4) there is a legal presumption that a person who lives with, or is habitually in the company of, a another person who is a prostitute, and the person has no visible means of financial support, that such a person is living on earnings from prostitution.

Living on the earnings of a prostitute” can be heard summarily in the Magistrates Court or on indictment in the District Court.  If the matter is heard summarily, the maximum penalty is imprisonment for 12 months and/ or a fine of $12,000.00.  The maximum penalty if the matter is heard in the District Court is 3 years imprisonment.

Procuring a Person to be a Prostitute

Pursuant to s.191 of the Criminal Code 1913 (WA) (The Code), it is a crime for a person to:

  • Procure a person under the age of 21 years, who is not a “common prostitute” or of known immoral character, to have unlawful carnal connection with a man (in WA or elsewhere);
  • Procure a person to be a “common prostitute” (in WA or elsewhere);
  • Procure a person to leave WA with the intention that the person may become an inmate of a brothel; or
  • Procure a person to leave their place of abode – which is not a brothel – with the intention that the person may become an inmate of a brothel (in WA or elsewhere).

Procuring a person to be a prostitute” focusses on people who procure or attempt to procure people to become “common prostitutes”.  It is committed regardless of whether the prostitution or intended prostitution is legal or illegal.  Furthermore, it is not relevant whether the person against whom the offence is committed consented or not.

The term “common prostitute” covers all situations where a person offers sexual services in return for payment or other reward.

Procuring a person to be a prostitute” makes it an offence to procure a person to become a prostitute, that is, to engage in sexual activity for reward.  The first mentioned method of committing “procuring a person to be a prostitute” does not require the person procured to be procured as a prostitute.  It only requires that the sexual activity they be procured for be unlawful in some way.  An example of this could be where the person procuring the other received a reward but not the person procured.

This must be heard in the District Court and carries a maximum penalty of imprisonment for 2 years.

Procuring a Person to Have Unlawful Carnal Knowledge by Threat, Fraud or Administering Drug

Pursuant to s.192 of the Criminal Code 1913 (WA) (The Code), it is a crime for a person to:

  • Procure, by threats or intimidation of any kind, a person to have an unlawful “carnal connection” with a man in WA or elsewhere;
  • Procure a person, who is not a common prostitute or of known immoral character, by a false pretence to have an unlawful “carnal connection” with a man in WA or elsewhere; or
  • Administer, or cause a person to take, any drug or substance with the intent to stupefy or overpower the person so as to enable a man to have unlawful “carnal knowledge” of them.

Consent by the person to whom the offending behaviour is directed is not a defence to this crime.

Procuring a person to have unlawful carnal knowledge by threat, fraud or administering drug” must be heard in the District Court and carries a maximum penalty of imprisonment for 2 years.

Obscene and Indecent Acts

The following offences relate to acts which are “obscene” or “indecent”.  The difference is one of degree.  An “indecent” act is not as serious as an “obscene” act.  An “indecent” act could be said to be offensive to good taste, whereas an “obscene” act could be said to be offensive to current standards of morality.

Obscene Act in Public

Pursuant to s.202 of the Criminal Code 1913 (WA) (The Code), a person commits a crime if they do an “obscene act”:

  • In a public place or within the view of a person in a public place; or
  • In a police station or lockup.

It is a defence to “obscene act in public” if the person did the act for a public benefit.  Whether or not the act was done for a public benefit is a question of fact and will depend upon the circumstances of each case.

A person who owns, controls or manages premises and permits an obscene act to be committed also commits “obscene act in public” pursuant to s.202(2) of The Code. 

Obscene act in public” can be heard summarily in the Magistrates Court or on indictment in the District Court.  If the matter is heard summarily, the maximum penalty is imprisonment for 12 months and/ or a fine of $12,000.00.  The maximum penalty if the matter is heard in the District Court is 3 years imprisonment.

Indecent Act in Public

Pursuant to s.203 of the Criminal Code 1913 (WA) (The Code), a person commits a crime if they do an “indecent act”:

  • In a public place or within the view of a person in a public place; or
  • In a police station or lockup.

It is a defence if the person did the act for a public benefit.  Whether or not the act was done for a public benefit is a question of fact and will depend upon the circumstances of each case.

A person who owns, controls or manages premises and permits an indecent act to be committed also commits “indecent act in public” pursuant to s.203(2) of The Code. 

Indecent act in public” can be heard summarily in the Magistrates Court or on indictment in the District Court.  If the matter is heard summarily, the maximum penalty is imprisonment for 9 months and/ or a fine of $9,000.00.  The maximum penalty if the matter is heard in the District Court is 2 years imprisonment.

Indecent Act with Intent to Offend

Pursuant to s.203 of the Criminal Code 1913 (WA) (The Code), it is a crime for a person to do an indecent act with an intention to offend any person.  This offence, unlike the ones above can be committed anywhere and need not be in a public place.

This is dealt with in the Magistrates Court and carries a maximum penalty of a $12,000.00 fine and/ or imprisonment for 12 months.

Showing Offensive Material to a Child under 16

Pursuant to s.204A(2) of the Criminal Code 1913 (WA) (The Code), it is a crime to show “offensive material” to a child under the age of 16 years.

Offensive material” can take the form of:

  • Objects;
  • A still image in the form of a picture, drawing, painting photograph etc;
  • A moving visual image of any kind whether it is on film, video, or electronic media; and
  • Holograms.

Such material falls within the definition of “offensive material” if it:

  • Relates in any way to matters of sex, drug misuse and addiction, crime, cruelty, violence or “revolting or abhorrent” subject matter;
  • Depicts a person (engaged in sexual activity or otherwise) who is or appears to be under the age of 16 years in a manner that is likely to cause offence to a reasonable adult;
  • Relates in any way to sexual activity between a human being and an animal; or
  • Promotes, instructs or incites crime or violence.

The definition is quite broad and whether material can be classified as “offensive material” will fall to be decided on each case.  Whether something can be classified as “offensive material” could change over time according to such things as what can be defined as “revolting or abhorrent” or what would offend a “reasonable adult”.

The definition of “offensive material” also includes certain publications, films and computer games that have been classified according to the Classification (Publications, Films and Computer Games) Act 1995 (Commonwealth).  It includes:

  • Publications which have been classified as:
    • Refused Classification (RC);
    • Category 1 restricted; or
    • Category 2 restricted.
  • Films which have been classified as:
    • RC; or
    • X.
  • Computer games which have been classified as:
    • RC.

It is a defence if a person believed on reasonable grounds that the child was over the age of 16 years and the person was not more than 3 years older than the child.

Showing offensive material to a child under 16” must be heard in the District Court and carries a maximum penalty of imprisonment for 5 years.

Using Electronic Communication to Procure, or Expose to Indecent Matter, Child Under 16

The following crimes cover a wide range of scenarios involving the use of electronic communication to procure children for sexual activity and exposing children to indecent material.  There is no requirement for the person to have physical contact with the child or to be in their presence at any point.  A common example of how this can be committed is where a person communicates with a child on social media and asks them to send naked photos of themselves.  Even though the person never meets the child the crime has been committed.

Using electronic communication to procure, or expose to indecent matter, child under 16” can also be committed if the person believes the other to be a child even if they are not.  It is well publicised that police often purport to be a child online in order to detect offending.  The wording of s.205 of the Criminal Code 1913 (WA) (The Code) means the offence is committed where the person is actually communicating with a police officer and not a child.

Pursuant to s.204B(2) of The Code, it is a crime for a person to use “electronic communication” with the intent to:

  • Procure a child they know or believe to be under the age of 16 years to engage in “sexual activity”; or
  • Expose a child they know or believe to be under the age of 16 years to any “indecent matter”.

This crime can be committed if the child is in WA or elsewhere, including overseas.

This must be heard in the District Court and carries a maximum penalty of imprisonment for 5 years.

Pursuant to s.204B(3) of The Code, it is a crime for a person to use “electronic communication” with the intent to:

  • Procure a child they know or believe to be under the age of 13 years to engage in “sexual activity”; or
  • Expose a child they know or believe to be under the age of 13 years to any “indecent matter”.

This can be committed if the child is in WA or elsewhere, including overseas.  This is more serious than s.204B(2) of The Act as indicated by the maximum penalty.

This must be heard in the District Court and carries a maximum penalty of imprisonment for 10 years.

For the purpose of the two crimes mentioned above, the following definitions apply:

  • Engaging in “sexual activity” does not require penetration or physical contact and includes where the person procured:
    • Allows a sexual act to be done to their body;
    • Does a sexual act to their own body or the body of another person; or
    • Otherwise engages in an indecent act.
  • Electronic communication” includes but is not limited to:
    • Email;
    • Internet;
    • Facsimile (fax);
    • Telephone;
    • Radio; and
    • Television.
  • Indecent matter” includes but is not limited to an indecent film, video, audio recording, picture, photograph and written material.

It is a defence if the person reasonably believed the person was over the age of 16.  It is also a defence to a charge pursuant to s.204B(3) if the person reasonably believed the person was over the age of 13 years; however, in such a situation, the person would still have committed “using electronic communication to procure, or expose to indecent matter, child under 16” pursuant to s.204B(2) if the child was over the age of 13 years but less than 16 years.

General Sexual Offences

These offences appear in Chapter XXXI of the Criminal Code Act Compilation Act 1913 (WA) (The Code).

For the offences discussed which relate to ss.320-329 The Code, where the age of the victim is relevant to the charge, it cannot be a defence for a person to assert that they were ignorant of the age of the person.  This means they cannot seek to rely on the fact that they did not know the age of the victim.  This is contained in s.331 of The Code.

Some terms which appear in the descriptions of the various crimes are included below.

Sexual Penetration

The definition of “sexual penetration” is:

  • To penetrate the vagina, anus or urethra of any person with:
    • Any part of the body of another person; or
    • Any object manipulated by the person;

except where it is done for a proper medical purpose.

  • To manipulate any body part of another person so as to cause penetration of the vagina, anus or urethra of the offender by a body part of the other person;
  • To put any part of the penis of a person into the mouth of another person;
  • To engage in cunnilingus or felatio (oral sex); or
  • To continue any of the above described actions.

Sexual Behaviour

A person engages in “sexual behaviour” if they:

  • Sexually penetrate any person;
  • Has carnal knowledge of any animal; or
  • Penetrates the person’s own vagina, anus or urethra with any object or part of the other person’s body other than for a proper medical purpose.

Consent

Consent” is defined in s.319(2) of The Code.  Consent” means consent that is freely given.  It is quite a technical area of the law and the following is a very brief overview. 

Consent” is a continuing factor and can be withdrawn after it has been initially given.  This means that if a person withdraws consent to a sexual act during that act and the other person does not cease the act, the part of the act which occurs after consent has been withdrawn is done without “consent”.

  “Consent” is not freely given where it is obtained by:

  • Threat;
  • Intimidation;
  • Deceit; or
  • Any fraudulent means.

The issue of “consent” can be quite complicated and cannot be exhaustively covered here.  However, there are situations where it is deemed that “consent” is not freely given or the person is incapable of giving “consent”.  Examples of these situations include but are not limited to:

  • A person who is asleep is not capable of “consenting”;
  • A person who is unconscious is not capable of “consenting”.  Similarly, a person who initially gives “consent” but lapses into unconsciousness is not taken to have “consented” to the continuation of the sexual act after becoming unconscious;
  • A person can be under the influence of alcohol or drugs to the extent of not being able to give “consent”;
  • Where a person submits to an act because of a threat, intimidation, deceit of fraud, that submission does not equate to “consent” freely given;
  • A person who ostensibly gives “consent” after being deceived as to the identity of the other person is not held to have freely given “consent”;
  • A person with a mental impairment which is severe enough that they are incapable of guarding themselves against sexual exploitation or understanding the nature of the act alleged to have been committed cannot give “consent”.

It is also an element of the definition of “consent” that the fact that a person does not offer physical resistance does not constitute “consent” to the sexual penetration.  This means that a lack of physical resistance cannot be taken to mean that the person is “consenting” on the basis that a person not “consenting” would attempt to fight off or otherwise resist the attacker.

A child under the age of 13 years is considered incapable of giving “consent” to an act which constitutes an offence against the child.

The offences are described in the order in which they appear in The Code.

Sexual Assault Against a Child Under 13

There are a number of crimes within s.320 of the Criminal Code 1913 (WA) (The Code).  For the purposes of this section, a “child” is a child under the age of 13 years.  Pursuant to s.319(2)(c) of The Code, consent” is not relevant to “sexual assault against a child under 13” as a child is deemed to be incapable of “consenting” to an act which constitutes an offence under this section.

Penalty

Sexual assault against a child under 13” within this section must be heard in the District Court. 

  • s.320(2) –  It is a crime for a person to “sexually penetrate a child under the age of 13 years;
    • Maximum penalty – imprisonment for 20 years;
  • s.320(3) – It is a crime for a person to procure, incite or encourage a child to engage in “sexual behaviour”;
    • Maximum penalty – imprisonment for 20 years;
  • s.320(4) – It is a crime for a person to indecently “deal with” a child.  “Deal with” involves doing any act which would constitute an assault;
    • Maximum penalty – imprisonment for 10 years;
  • s.320(5) – It is a crime for a person to procure, incite, or encourage a child to do an indecent act.  An “indecent act” is an act which is indecent that is;
    • Done in the presence of or viewed by any person; or
    • photographed or recorded in any manner.
  • Maximum penalty – imprisonment for 10 years;
  • s.320(6) – It is a crime for a person to “indecently record” a child.  “Indecently record” means to make or allow to be made any indecent photograph, film, video or other recording.
    • Maximum penalty – imprisonment for 10 years.
Mandatory Sentencing in Some Circumstances

If an adult person commits “sexual assault against a child under 13” in the course of an “aggravated home burglary”, mandatory sentencing pursuant to s.320(7) requires that the person be sentenced to a term of imprisonment which is not less than 75% of the maximum penalty stated.  For example, an adult being sentenced for sexually penetrating a child under the age of 13 years must be sentenced to imprisonment for at least 15 years.

If the person being sentenced is a juvenile offender (under 18 years of age), they must be sentenced to at least 3 years imprisonment or youth detention.  Such a term of imprisonment or detention cannot be suspended.

Sexual Offences Against a Child Over 13 and Under 16

Sexual offences against a child over 13 and under 16” reflect the crimes described above in s.320 of the Criminal Code 1913 (WA) (The Code).  Sexual offences against a child over 13 and under 16” relate to children who are of or over the age of 13 years and younger than 16 years:

  • s.321(2) –  It is a crime for a person to “sexually penetrate” a child to whom they are not lawfully married;
    • Maximum penalty – imprisonment for 14 years unless;
      • The child is under the persons supervision, care or authority – imprisonment for 20 years; or
      • The offender is under the age of 18 years and the child is not under their supervision, care or authority – imprisonment for 7 years;
  • s.321(3) – It is a crime for a person to procure, incite or encourage a child to whom they are not lawfully married to engage in “sexual behaviour”;
    • Maximum penalty – imprisonment for 14 years unless;
      • The child is under the persons supervision, care or authority – imprisonment for 20 years; or
      • The offender is under the age of 18 years and the child is not under their supervision, care or authority – imprisonment for 7 years;
  • s.321(4) – It is a crime for a person to indecently “deal with” a child to whom they are not legally married.  “Deal with” involves doing any act which would constitute an assault;
  • s.321(5) – It is a crime for a person to procure, incite, or encourage a child to do an indecent act.  An “indecent act” is an act which is indecent that is;
    • Done in the presence of or viewed by any person; or
    • photographed or recorded in any manner;

It is a defence, pursuant to s.321(11) of The Code, to a charge under this section if the “indecent act” was a “private conjugal act”.  It is a “private conjugal act” if;

  • It was not committed in the presence of or viewed by any person other than a person to who is lawfully married to the child; and
    • No photograph, file, video or other recording is made of it other than for the private and exclusive use of the child and a person lawfully married to the child.
  • s.321(6) – It is a crime for a person to “indecently record” a child.  “Indecently record” means to make or allow to be made any indecent photograph, film, video or other recording.

The maximum sentence for “Sexual offences against a child over 13 and under 16” is 7 years imprisonment unless:

  • The child is under the person’s supervision, care or authority – imprisonment for 10 years; or
  • The offender is under the age of 18 years and the child is not under their supervision, care or authority – imprisonment for 4 years;

Pursuant to s.321(9), It is a defences under s.321 of The Code if the person charged proves they believed on reasonable grounds that the child was over the age of 16 years and that they were no more than 3 years older than the child.  However, this defence is not available if the child was under the care, supervision or authority of the person charged.

Mandatory Sentencing in Some Circumstances

If an adult person commits a “sexual offences against a child over 13 and under 16” in the course of an “aggravated home burglary”, mandatory sentencing pursuant to s.321(14) of The Code requires that the person be sentenced to a term of imprisonment which is not less than 75% of the maximum penalty stated.  For example, an adult being sentenced for sexually penetrating a child under the age of 16 but older than 13 years must be sentenced to imprisonment for at least 10.5 years.

If the person being sentenced is a juvenile offender (under 18 years of age), they must be sentenced to at least 3 years imprisonment or youth detention.  Such a term of imprisonment or detention cannot be suspended.

Persistent Sexual Conduct with a Child Under 16

Pursuant to s.321A(4) of the Criminal Code 1913 (WA) (The Code), it is a crime for a person to “persistently” engage in “sexual conduct” with a child under the age of 16 years.

Persistent sexual conduct with a child under 16” must be heard in the District Court and carries a maximum penalty of imprisonment for 20 years.

A person “persistently” engages in “sexual conduct” if the person does a “sexual act” with the child on 3 separate occasions which are on different dates.  A “sexual act” is an act which would constitute the crimes of:

  • Sexually penetrating” a child pursuant to s.320(2) and s.321(2);
  • Procuring, inciting or encouraging a child to engage in “sexual behaviour” pursuant to s.320(3) and s. 321(3); and
  • Indecently dealing” with a child pursuant to s.320(4) and s.321(4).

It is irrelevant whether the “sexual acts” were the same or different and it is irrelevant if some of the “sexual acts” occurred outside WA provided at least one act occurred within WA.

A person who is charged with “persistent sexual conduct with a child under 16” may also be charged with the relevant offence relating to each of the alleged “sexual acts” which occurred within WA.  This means that the person may be charged in relation to each “sexual act” as well as “persistent sexual conduct with a child under 16” as an overarching charge.

Pursuant to s.321A(9) of The Code, It is a defence if the person proves that they believed on reasonable grounds that the other person was over the age of 16 years and that they were not more than 3 years older than that other person.

It is also a defence, pursuant to s.321A(10) of The Code if the person charged was lawfully married to the child.

Sexual Offences Against Child Over 16 by Person in Authority

For the purpose of this offence, a “child” is a person of or over the age of 16 years but less than 18 years.

It is a crime pursuant to s.322 of the Criminal Code 1913 (WA) (The Code), for a person to do any of the following where that person cares for, supervises or has the child under their authority:

  • s.322(2) – “Sexually penetrate” the child;
  • s.322(3) – Procure, incite or encourage the child to engage in “sexual behaviour”;
  • s.322(4) – “Indecently deal” with the child;
  • s.322(5) – Procure, incite or encourage the child to do an “indecent act”; or
  • s.322(6) – Indecently record the child.

It is not a defence if the person believed on reasonable grounds that the child was actually over the age of 18 years.

It is a defence if the person was lawfully married to the child.

Sexual offences against a child over 16 by a person in authority” under this section must be heard in the District Court.  The maximum penalties are:

  • For an offence under s.322(2) and (3) – imprisonment for 10 years; and
  • For an offence under s.322(4)(5) and (6) – imprisonment for 5 years.

Indecent Assault

Pursuant to s.323 of the Criminal Code 1913 (WA) (The Code), it is a crime if a person “indecently assaults” another person.  As with assaults in general, the issue of “consent” is relevant and it must be proven that the person allegedly assaulted did not “consent”.

In determining if an assault was “indecent” the court will examine the assault against what is considered to be offensive to common propriety in the mind of “ordinary decent-people”.  As such it is not possible to give an exhaustive list of what may constitute an “indecent assault” and what is considered “indecent” may change over time.  An example of what would currently be accepted as an “indecent assault” would be the touching of a woman’s breasts.

It is important to note that there is no defence relating to whether the person is lawfully married to the other person as there is with some offences.  This means that a husband can commit this crime against his wife.

Indecent assault” can either be heard in the District Court or summarily in the Magistrates Court.  If the matter is heard in the Magistrates Court the maximum penalty is a fine of $24,000.00 and/ or imprisonment for 2 years.  Otherwise the maximum penalty is imprisonment for 5 years. 

Aggravated Indecent Assault

It is a crime, pursuant to s.324 of the Criminal Code 1913 (WA) (The Code), if a person indecently assaults another person in “circumstances of aggravation”.

For the purpose of this section, “circumstances of aggravation” exist where at the time of the indecent assault or immediately before or after the indecent assault:

  • The person charged is armed with, or pretends to be armed with, any dangerous or offensive weapon;
  • The person charged is in company with another person or persons;
  • The person charged does “bodily harm” to any person; or
  • The person charged does an act which is likely to seriously and substantially degrade or humiliate the person assaulted; or
  • The person charged threatens to kill the person assaulted.

Unless the indecent assault occurs during an aggravated home burglary it can be heard in the District Court or summarily in the Magistrates Court.  If heard summarily the maximum penalty is a fine of $36,000.00 and/ or imprisonment for 3 years.  Otherwise the maximum penalty is imprisonment for 7 years.

Mandatory Sentencing

If the aggravated indecent assault is committed during an “aggravated home burglary” by an adult the court must impose a term of imprisonment of at least 75% of the maximum sentence.  Currently, as the maximum penalty is 7 years imprisonment, a court would be bound to sentence a person so charged to imprisonment for at least 5.25 years.  If the person charged is a juvenile offender, the court must impose a term of imprisonment or youth detention of at least 3 years and that term of imprisonment cannot be suspended.

Sexual Penetration Without Consent

Sexual penetration without consent” was previously known as “rape”.  Pursuant to s.325(1) of the Criminal Code 1913 (WA) (The Code), this crime is committed when a person “Sexually penetrates” another person without the other person’s “consent”.  Refer to the definitions of “sexual penetration” and “consent” for more detail on these terms.  These two concepts are the key elements of this offence.

Whilst the police must prove that a person did not give their “consent” freely, a person charged cannot rely on ignorance as to whether or not the other person was freely “consenting” or claim that they did not consider the fact and therefore were not aware the other person was not freely “consenting”.  Further, a person must reasonably believe the other person is freely “consenting”.  This means that their belief as to whether or not the other person was freely “consenting” will be judged on what a reasonable person would have believed in the same circumstances.  If a jury were to determine that a person’s asserted belief that another person was freely “consenting” was not reasonable in the circumstances, “consent” would be deemed to not be freely given.

Sexual penetration without consent” cannot be heard summarily and must be heard in the District Court.  The maximum penalty is imprisonment for 14 years unless mandatory sentencing applies as below.

Mandatory Sentencing

Pursuant to s.325(2) of The Code,  if this crime is committed by an adult during an “aggravated home burglary”, the court must impose a sentence of imprisonment of at least 75% of the maximum.  In this case, as the maximum penalty is 14 years imprisonment, a term of imprisonment of at least 10.5 years must be imposed.

In the case of a juvenile offender, pursuant to s.325(3), the court must impose a term of imprisonment or youth detention of at least 3 years and this cannot be suspended.

Aggravated Sexual Penetration Without Consent

This crime is found in s.326 of the Criminal Code 1913 (WA) (The Code).  Aggravated sexual penetration without consent is identical to the “sexual penetration without consent”; however it is committed in “circumstances of aggravation”.  

Circumstances of Aggravation

Circumstances of Aggravation” occur when at the time of the offence or immediately before or after, the person charged:

  • Is armed, or pretends to be armed, with any dangerous or offensive weapon;
  • Is in the company of another person or persons;
  • Does “bodily harm” to any person;
  • Does an act which is likely to seriously and substantially degrade or humiliate the victim; or
  • Threatens to kill the victim.

Aggravated sexual penetration without consent” cannot heard summarily and must be heard in the District Court.  The maximum penalty is imprisonment for 20 years unless mandatory sentencing applies as below.

Mandatory Sentencing

Pursuant to s.326(2) of The Code,  if “aggravated sexual penetration without consent is committed by an adult during an “aggravated home burglary”, the court must impose a sentence of imprisonment of at least 75% of the maximum.  In this case, as the maximum penalty is 20 years imprisonment, a term of imprisonment of at least 15 years must be imposed.

In the case of a juvenile offender, pursuant to s.326(3), the court must impose a term of imprisonment or youth detention of at least 3 years and this cannot be suspended.

Sexual Coercion

Pursuant to s.327 of the Criminal Code 1913 (WA) (The Code), it is a crime if a person compels another to engage in “sexual behaviour”.  “Sexual behaviour” is defined as being when a person:

  • Sexually penetrates” another person;
  • Has “carnal knowledge” of an animal; or
  • Penetrates their own vagina, anus or urethra with any object or part of the person’s body other than for medical purposes.

The acts to which “sexual coercion” apply are broader than merely “sexual penetration”.  “Sexual coercion” can cover many different types of behaviour.  Some examples which illustrate how this can be committed include;

  • Encouraging a person to consume alcohol and thereby inciting them to engage in “sexual behaviour” where they may not have otherwise;
  • Persistently pressuring a person and thereby compelling them to engage in “sexual behaviour” where they have previously refused;
  • Using verbal threats to end a relationship if the other person does not agree to engage in “sexual behaviour”.

Sexual coercion” cannot heard summarily and must be heard in the District Court.  The maximum penalty is imprisonment for 14 years unless mandatory sentencing applies as below.

Mandatory Sentencing

Pursuant to s.327(2) of The Code,  if “sexual coercion” is committed by an adult during an “aggravated home burglary”, the court must impose a sentence of imprisonment of at least 75% of the maximum.  In this case, as the maximum penalty is 14 years imprisonment, a term of imprisonment of at least 10.5 years must be imposed.

In the case of a juvenile offender, pursuant to s.327(3), the court must impose a term of imprisonment or youth detention of at least 3 years and this cannot be suspended.

Aggravated Sexual Coercion

Pursuant to s.328 of The Code, aggravated sexual coercion” is a crime. It is identical to “sexual coercion” except that it is committed in “circumstances of aggravation”.

Aggravated sexual coercion” cannot heard summarily and must be heard in the District Court.  The maximum penalty is imprisonment for 20 years unless mandatory sentencing applies as below.

Mandatory Sentencing

Pursuant to s.327(2) of The Code,  if “aggravated sexual coercion” is committed by an adult during an “aggravated home burglary”, the court must impose a sentence of imprisonment of at least 75% of the maximum.  In this case, as the maximum penalty is 14 years imprisonment, a term of imprisonment of at least 15 years must be imposed.

In the case of a juvenile offender, pursuant to s.327(3), the court must impose a term of imprisonment or youth detention of at least 3 years and this cannot be suspended.

Sexual Offences by Relatives

S.329 of the Criminal Code 1913 (WA) (The Code), creates several offences related to sexual offences committed by relatives and the like.  There are two definitions which are relevant to some of these offences.

De Facto Child

A “de facto child” is a step-child of a person or a child or step-child of a de facto partner of the person.

Lineal Relative

A “lineal relative” is defined as being “a person who is a lineal ancestor, lineal descendant, brother, or sister, whether the relationship is of the whole blood or half-blood, whether or not the relationship is traced through, or to, a person whose parents were not married to each other at the time of the person’s birth, or subsequently, and whether the relationship is a natural relationship or a relationship established by a written law.”

This section lists the following offences which relate to sexual activity that occurs where the parties are related.  The maximum penalty is include for each separate offence as there is some variation.  These crimes must be heard in the District Court and cannot be heard summarily in the Magistrates Court:

  • s.329(2) – It is a crime for a person to “sexually penetrate” a child that the person knows is a lineal relative or de facto child.  The maximum penalty is imprisonment for 20 years if the child is under the age of 16 years or 10 years if the child is under the age of 18 years but older than 16 years;
  • s.329(3) – It is a crime for a person to incite or encourage a child they know to be a lineal relative or de facto child to engage in “sexual behaviour”.  The maximum penalty is imprisonment for 20 years if the child is under the age of 16 years or 10 years if the child is under the age of 18 years but older than 16 years;
  • s.329(4) – It is a crime for a person to “indecently” deal with a child they know to be a lineal relative of a de facto child.  “Deal with” involves doing any act which would constitute an assault.  The maximum penalty is imprisonment for 10 years if the child is under the age of 16 years or 5 years if the child is under the age of 18 years but older than 16 years;
  • s.329(5) – It is a crime for a person to incite a child that they know to be a lineal relative or de facto child to commit an “indecent act”.  The maximum penalty is imprisonment for 10 years if the child is under the age of 16 years or 5 years if the child is under the age of 18 years but older than 16 years;
  • s.329(6) – It is a crime for a person to “indecently record” a child they know to be a lineal relative of de facto child.  “Indecently record” means to make or allow to be made any indecent photograph, film, video or other recording.  The maximum penalty is imprisonment for 10 years if the child is under the age of 16 years or 5 years if the child is under the age of 18 years but older than 16 years;
  • ss.329(7) and  (8) – It is a crime for a person to “sexually penetrate” a person who is over the age of 18 years that they know to be a lineal relative.  It is also a crime for a person who is over the age of 18 years to consent to being “sexually penetrated” by a person they know to be a lineal relative.  Both of these carry a maximum penalty of imprisonment for 3 years.

Sexual Offences Against Incapable Persons

S.330 of the Criminal Code 1913 (WA) (The Code), contains a number of offences involving people who are “incapable”.  An “incapable person” is a person who is incapable of:

  • Understanding the nature of the act which is the subject of the charge against the accused person; or
  • Guarding themselves against sexual exploitation.

The maximum penalty is include for each separate offence as there is some variation.  These crimes must be heard on the District Court and cannot be heard summarily in the Magistrates Court:

  • s.330(2) – It is a crime for a person to “sexually penetrate” another person that the person knows or ought to know is an “incapable person”.  The maximum penalty is imprisonment for 14 years; however, if the other person is under their care, supervision or authority, the maximum term of imprisonment is 20 years;
  • s.330(3) – It is a crime for a person to incite or encourage another person that the person knows or ought to know is an “incapable person” to engage in “sexual behaviour”.  The maximum penalty is imprisonment for 14 years; however, if the other person is under their care, supervision or authority, the maximum term of imprisonment is 20 years.
  • s.330(4) – It is a crime for a person to “indecently deal with another” person that the person knows or ought to know is an “incapable person”.  “Deal with” involves doing any act which would constitute an assault.  The maximum penalty is imprisonment for 7 years; however, if the other person is under their care, supervision or authority, the maximum term of imprisonment is 10 years.
  • s.330(5) – It is a crime for a person to procure another person that the person knows or ought to know is an “incapable person” to do an “indecent act”.  The maximum penalty is imprisonment for 7 years; however, if the other person is under their care, supervision or authority, the maximum term of imprisonment is 10 years;
  • s.330(6) – It is a crime for a person to “indecently record” a person they know or ought to know is an “incapable person”.  “Indecently record” means to make or allow to be made any indecent photograph, film, video or other recording.  The maximum penalty is imprisonment for 7 years; however, if the other person is under their care, supervision or authority, the maximum term of imprisonment is 10 years.

It is a defence if the person is lawfully married to the other person who is deemed to be “incapable”.

Mandatory Sentencing

Pursuant to s.330(10) of The Code,  if “sexual offences against incapable persons” are committed by an adult during an “aggravated home burglary”, the court must impose a sentence of imprisonment of at least 75% of the maximum  penalty which is relevant.  In the case of a juvenile offender, pursuant to s.330(11), the court must impose a term of imprisonment or youth detention of at least 3 years and this cannot be suspended.

Sexual Servitude

Pursuant to s.331B of The Code, It is a crime for a person to compel another person to provide or to continue to provide a “sexual service”.

Sexual Service

A “sexual service” is defined as the use or display of the body of the person providing the service for the sexual arousal or sexual gratification of others.

To “compel” a person in this context means to use force or pressure to cause them to provide the “sexual service” where they would not otherwise have done so.  A current example would include the practice of some illegal brothels who confiscate the passports and other personal documents of people who come to Australia from other countries and force them to work in brothels until a debt is repaid. 

Sexual servitude” must be heard in the District Court and cannot be heard summarily.  The maximum penalty is:

  • If the person compelled is under the age of 18 years – imprisonment for 20 years; or
  • If the person compelled is over the age of 18 years – imprisonment for 14 years.

Conducting a Business Involving Sexual Servitude

Pursuant to s.331C of the Criminal Code 1913 (WA) (The Code), it is a crime for a person to conduct a business that involves any person being compelled to provide or continue to provide a “sexual service”.

A person is said to “conduct” a business if they are:

  • Taking part in the management of the business;
  • Exercising control or direction over the business; or
  • Providing finance for the business.

This must be heard in the District Court and cannot be heard summarily.  The maximum penalty for this crime is:

  • If the person compelled is under the age of 18 years – imprisonment for 20 years; or
  • If the person compelled is over the age of 18 years – imprisonment for 14 years.

Deceptive Recruiting for Commercial Sexual Service

Recruiting an adult

Pursuant to s.331D(1) of the Criminal Code 1913 (WA) (The Code), it is a crime for a person to offer another person – who is not a child under the age of 18 years or an “incapable person” – employment or engagement to provide personal services when that person knows the employment or engagement will:

  • Involve an expectation that the other person will be asked to or expected to provide a commercial sexual service; and
  • Involve the provision of a commercial sexual service if that employment or engagement is to continue;

and the person does not disclose these facts to the person to whom the offer is made. 

An example if this would be where a person advertised for and offered employment to a person as a massage therapist when they were actually seeking to employ or engage a person to offer sexual services as part of their employment as a massage therapist.  If the person did not reveal the expectation to provide sexual services then they would be committing this crime.

This must be heard in the District Court and cannot be heard summarily.  The maximum penalty for this crime is imprisonment for 7 years.

Recruiting a Child

Pursuant to s.331D(2) of The Code, it is a crime for a person to offer another person – who is a child under the age of 18 years or an “incapable person” – employment or engagement to provide personal services when that person knows the employment or engagement will:

  • Involve an expectation that the other person will be asked to or expected to provide a commercial sexual service; and
  • Involve the provision of a commercial sexual service if that employment or engagement is to continue.

It is not necessary that the expectation that a sexual service be provided be disclosed to the person as with the previous offence under s.331D(1) of The Code.

This must be heard in the District Court and cannot be heard summarily.  The maximum penalty is imprisonment for 20 years.

Child Exploitation Material

Offences concerning “child exploitation material” are contained within chapter XXV of the Criminal Code 1913 (WA) (The Code).

Pursuant to s.221A(1A) of The Code, a person who is charged with any of the offences in this chapter cannot use a defence the fact that they did not know the age of the child depicted, described or represented in the material or to which the charge relates.  Similarly, a person cannot assert a defence that they believed the child to be of or over the age of 16 years.  Essentially this means that “ignorance in no excuse” when it comes to the age of the child in relation to these offences.

There are several terms which are relevant to this chapter.

Child

A “child” is defined as a person who is under the age of 16 years.

Child Exploitation Material

Child exploitation material” is defined as:

  • Child pornography”; or
  • Material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is or appears to be a “child”:
    • In an offensive or demeaning context; or
    • Being subjected to abuse, cruelty or torture (whether or not in a sexual context).

Child Pornography

Child pornography” is defined as “material” that, in a way likely to offend a reasonable person, describes, depicts or represents person, or part of a person, who is, or appear to be, a child:

  • Engaging in “sexual activity”; or
  • In a sexual context.

Material

Material” can be any picture, object, film, written or printed matter, data or other thing.  It can also be any thing from which text, pictures, sound or data can be produced or reproduced, with or without the aid of anything else.

This definition covers all forms of depicting and storing pictures, films, written material etc.  For example, a computer disk drive can fall within the definition of “material” if it contains a data file which is an image file.  Even if the disk drive does not contain a program which can open the file, the mere fact the data file is there places it within the definition of “material” as the picture can be reproduced from the disk drive if the relevant program is used.

Picture

Picture” is defined as including an image whether or not it is a computer generated image.

Involving Child in Child Exploitation

Pursuant to s.217(2) of The Code, it is a crime for a person to involve a “child” in “child exploitation”.  A person is said to involve a child in “child exploitation” if the person:

  • Invites a child to be in any way involved with the production of “child exploitation material”;
  • Causes a child to be in any way involved in the production of “child exploitation material”;
  • Procures a child  for the purposes of producing “child exploitation material”; or
  • Offers a child for the purpose of producing “child exploitation material”.

Involving a child in child exploitation” must be heard in the District Court and cannot be heard summarily.  The maximum penalty for this crime is imprisonment for 10 years.

Producing Child Exploitation Material

Pursuant to s.218 of The Code, a person who produces “child exploitation material” is guilty of a crime.

There is no specific definition of “produce”.  It involves being involved in any way in producing “child exploitation material” including causing it to be produced.  This can include a person who has a computer file which they copy onto another storage media.  If that material is “child exploitation material”, the act of copying the image file will satisfy the definition of “produce”.

Producing child exploitation material” must be heard in the District Court and cannot be heard summarily.  The maximum penalty is imprisonment for 10 years.

Distributing Child Exploitation Material

It is a crime, pursuant to s.219 of The Code, for a person to distribute “child exploitation material”.

To “distribute” includes to:

  • Communicate, exhibit, sell, send, supply, offer or transmit to another person or to enter into an agreement of arrangement to do so; or
  • Make material available for access by electronic or other means by another person, or enter into an agreement or arrangement to do so.

The second part of this definition can be illustrated where a person uses a peer-to-peer file sharing program to allow other people to have access to material which is stored on their personal computer.  There mere act of having the material available satisfies the definition of “distribute” regardless of whether another person actually accesses the material.

A person commits “distribution of child exploitation material” by distributing “child exploitation material” or by possessing “child exploitation material” with the intent to distribute it to another person or persons.

Distribution of child exploitation material” must be heard in the District Court and cannot be heard summarily.  The maximum penalty is imprisonment for 10 years.

Possession of Child Exploitation Material

Pursuant to s.220 of The Code, a person commits a crime if they possess “child exploitation material”.

Possession of child exploitation material” must be heard in the District Court and cannot be heard summarily.  The maximum penalty is imprisonment for 7 years.

Defences

There are a number of defences in relation to this chapter.

Pursuant to s.221A(1), it is a defence if the person charged can prove that;

  • The material to which the charge relates was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 (Commonwealth), other than as refused classification (RC);
  • The accused person did not know, and could not reasonably be expected to have known, that the material to which the charge relates describes, depicts or represents a person or part of a person in a way likely to offend a reasonable person;
  • The material to which the charge relates was —
    • of recognised literary, artistic or scientific merit; or
    • of a genuine medical character,

and that the act to which the charge relates is justified as being for the public good; or

  • The accused person was acting for a genuine child protection or legal purpose, and that the person’s conduct was reasonable for that purpose.

S.221A(2) of The Code, provides a defence for a person charged if:

  • The material came into the accused person’s possession unsolicited; and
  • As soon as the person became aware of the nature of the material they took reasonable steps to get rid of it.

s.221A(3) provides defences for law enforcement and classification purposes.  It is not an offence:

  • For a member or officer of a law enforcement agency to possess or distribute child exploitation material when acting in the course of his or her official duties; or
  • For a person to possess or distribute child exploitation material in the exercise of a function relating to the classification of such material conferred or imposed on the person under the Classification (Publications, Films and Computer Games) Act 1995(Commonwealth).
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