Sexual Offences are mainly dealt with in the Criminal Code Act 1924 (Tas) (the Criminal Code).
‘Rape is committed where any person has sexual intercourse with another person without that person’s consent’ (s185, Criminal Code). ‘Sexual intercourse’ is defined as the penetration to the least degree of the vagina, genitalia, anus or mouth of a person by a body part or penis of another person or an object, and includes the continuation of sexual intercourse after such penetration (s 2B, Criminal Code).
‘Consent’ is a consent freely given by a rational and sober person. A consent is not freely given where it is obtained by force, fraud or threats of any kind or where it is obtained by reason of a person being overborne by the nature or position of another person. Nor is it a valid consent if a person is so affected by liquor or drugs, as to be incapable of forming a rational opinion about the matter to which they consent. A very young child is not capable of giving a valid consent. Full stop. Under the age of 17 years no child is deemed capable of giving consent. There is no justification for sexual intercourse or contact with a child. There are some exceptions where two teenagers engage in sexual contact, but this is a defence to a charge before a court, and not a rule of thumb to decide your life by.
Where a victim suffers grievous bodily harm in connection with an alleged sexual offence, the grievous bodily harm is prima facie evidence of the lack of consent.
To establish rape, the Crown must prove an intentional act of sexual intercourse, and absence of consent. If there is some evidence that the accused person may have believed the victim was consenting, the Crown must also prove that the accused person did not honestly and reasonably believe the victim was consenting.
The maximum penalty for rape, and all crimes in the Criminal Code other than murder and treason, is 21 years imprisonment (s389), but in practice sentences for rape range from 18 months to 8 years.
Aggravated sexual assault is now covered by the definition of ‘rape’ as described above; where any person using a part of the body other than the penis, or an inanimate object, penetrates the vagina or anus of another person without that person’s consent.
Rape in Marriage
The fact that an accused person is married to the complainant is not a bar to a conviction for rape.
Unnatural Sexual Intercourse
Sexual intercourse with an animal is a crime and is called unnatural sexual intercourse. Male homosexuality is no longer a crime in Tasmania nor is anal intercourse. Lesbianism was probably never a crime in Tasmania.
Sexual Intercourse with a Young Person
It is a crime to have sexual intercourse with a young person under the age of 17 years (s124). Consent of the young person is only a defence in two situations. First, where the young person is 15 years of age or older and the accused person is not more than 5 years older. Secondly, where the young person is 12 years of age or older and the accused person is not more than 3 years older than the young person. It follows that the consent of a child under 12 years of age is never a defence. Consent is not a defence to anal intercourse with an underage person. Mistake as to age is a defence if the accused person believed on reasonable grounds that the young person was of, or above, the age of 17 years. It is a crime to have sexual intercourse with a person under 17 years of age on more than three occasions. The crime is called persistent sexual abuse of a child or young person.
Marriage is a defence to this particular charge, as is a reasonable belief that the person was over 17.
The consent of the Director of Public Prosecutions is required to bring a prosecution (Section 125A).
Any person who unlawfully and indecently assaults another person is guilty of indecent assault (s127). To establish this crime, the Crown must prove an assault which is indecent or committed in circumstances of indecency, and absence of consent unless the victim is under 17 years of age. If the victim is a young person under the age of 17 years, consent is only a defence if it would have been a defence if the crime charged was sexual intercourse with a young person. An honest and reasonable mistake as to consent is a defence, as is an honest and reasonable belief that the person allegedly assaulted was of, or above, the age of 17 years.
Section 192 created the crime of stalking which is committed when a person, with the intention of causing physical or mental harm or apprehension or fear, follows a person or loiters outside a person’s house or interferes with a person’s property or keeps a person under surveillance or gives offensive material to a person or acts in any other way which could reasonably be expected to cause the other person apprehension or fear.
If apprehension or fear is caused to the person stalked, the stalker is deemed to have the requisite intent if the stalker’s conduct is likely to cause apprehension or fear of physical or mental harm. However, police officers are exempt if they stalk in the course of their duties.
Other Sexual Offences
The sexual offences described above are by no means an exhaustive list of sexual offences. The Criminal Code also contains the crimes of unlawful sexual intercourse with person with mental impairment (s126), crimes of procuring (ss125C, 125D, 129), and incest (s135). The Police Offences Act 1935 (Tas) contains offences of assault with indecent intent, indecent exposure, offensive or indecent behaviour, soliciting. It is no longer an offence for a male person to be in a public place dressed in female apparel at night.
Page last updated 10/03/2021