‘Rape’: the penetrative sexual offence
25.8 Under the common law, rape was defined as carnal knowledge of a woman against her will and was subject to narrow and restrictive definitions of ‘sexual intercourse’. Statutory extensions and modifications to the common law crime of rape have been made in all jurisdictions to varying degrees, but with resulting inconsistency across jurisdictions. The penetrative sexual offence is no longer gender-specific and, despite some inconsistencies, generally includes penetration of the genitalia by a penis, object, part of a body or mouth.
25.9 A number of jurisdictions also prohibit a person from compelling another person to take part in sexual penetration. In addition, common law understandings of consent, and the conditions or circumstances that are seen as negating consent, have been considerably modified.
25.10 The penetrative sexual offence is described as: ‘rape’ in Victoria, Queensland, South Australia and Tasmania; ‘sexual assault’ in NSW; ‘sexual intercourse without consent’ in the ACT and the Northern Territory; and ‘sexual penetration without consent’ in Western Australia. The offence includes the continuation of sexual intercourse after penetration in order to address cases where consent has subsequently been withdrawn.
25.12 In all jurisdictions the prosecution must prove that sexual penetration took place without the consent of the complainant. These are the physical elements of the offence, or actus reus. In the common law jurisdictions—NSW, Victoria, South Australia and the ACT—the prosecution must also prove that the accused knew that the victim was not consenting or was reckless about whether there was such consent. This is known as the mental element of the offence, or mens rea. Similar provisions apply in the Northern Territory. By contrast, in the code jurisdictions—Queensland, Western Australia and Tasmania—the prosecution need only prove intention.
25.13 Until recently, in all the common law jurisdictions, a defendant who could prove an honest albeit unreasonable belief in consent would be acquitted of the offence. In the code jurisdictions, a defendant may raise the defence of an honest and reasonable belief in consent. Key changes in relation to the definition of consent and the mental element relating to consent are discussed later in this chapter.
Aggravated sexual assaults
25.14 Each jurisdiction provides in some way for aggravating factors for the penetrative offence (as well as for other sexual offences). These may be outlined in a definition section, articulated as a separate aggravating offence, as a subsection of the substantive offence, or as an entirely separate offence. The Model Criminal Code provides for increased penalties for all sexual offences when certain aggravating factors are present.
25.15 Factors that are commonly nominated as aggravating include: causing injury; using a weapon; detaining the victim; the victim’s age; if the victim had a disability or cognitive impairment; or where the accused was in a position of authority in relation to the victim.
25.16 For example, the penetrative sexual offence is supplemented with the separate crimes of ‘aggravated sexual assault’ in NSW and ‘aggravated sexual penetration without consent’ in Western Australia. These carry a higher maximum penalty than the basic offence. One of a range of aggravating factors must be proved including, for example, the infliction of harm, the use of a weapon or being in company with another.
25.17 In the ACT, the law provides for different offences ranging from sexual assault in the first degree—the most serious—to sexual assault in the third degree, depending on the existence of aggravating factors. In the Northern Territory, the maximum punishment for the basic offence increases where there are aggravating factors—defined as where ‘harm’ or ‘serious harm’ is caused.
Indecent assault and acts of indecency
25.18 Indecent assault covers sexual acts that do not constitute rape. Indecent assault is an offence in all states. For example, in Victoria, a person commits indecent assault if ‘he or she assaults another person in indecent circumstances’; and in NSW the offence applies where any person ‘assaults another person and … commits an act of indecency on or in the presence of the other person’. To establish this offence there must be an assault—actual or threatened—in addition to indecency. Some jurisdictions also have offences for aggravated indecent assault.
25.19 The territories have adopted a different approach. The ACT has an offence for ‘acts of indecency without consent’, which does not require an assault. Other jurisdictions also proscribe acts of indecency, including in aggravated circumstances. In the Northern Territory, instead of an offence of indecent assault, the legislation increases the maximum penalty for assault where the victim is assaulted in an indecent manner.
25.20 Indecency is not defined in any of the legislative schemes. It is considered a word of ‘ordinary meaning’ for the jury to assess in the circumstances of the case and according to the standards of the day.
Assaults with intent to commit sexual acts
25.21 In addition to crimes of sexual assault and indecent assault, some jurisdictions have offences involving assaults or acts with intent to commit sexual acts. These offences apply where the accused uses violence or threatens to use violence in order to facilitate a sexual act.
25.22 The impetus for such offences was to ‘place primary emphasis on the violence factor in sexual assault, rather than on the element of sexual contact and consent’. For example, in NSW, it is an offence for any person ‘with intent to have sexual intercourse with another person’ to inflict or threaten to inflict ‘actual bodily harm on the other person or a third person who is present or nearby’.
25.23 Some jurisdictions also provide for offences where drugs or other substances have been administered to the victim in order to render that person unable to resist the sexual activity.
Submissions and consultations
25.24 In the Consultation Paper, the Commissions asked whether significant gaps or inconsistencies arise among jurisdictions in relation to sexual offences against adults in terms of the:
definition of sexual intercourse or penetration;
recognition of aggravating factors;
penalties applicable if an offence is found proven;
offences relating to attempts; and/or
definitions of indecency offences.
25.25 Stakeholders highlighted gaps and inconsistencies across jurisdictions in relation to sexual offences, expressing the view that the Commissions should ‘be seeking to achieve fairness and consistency’ with respect to the formulation of sexual assault offences. Overall, stakeholders who addressed the questions in this area focused on the definitions, aggravating factors and penalties for sexual offences.
25.26 While there is much commonality among jurisdictions in the definitions of penetration and sexual intercourse, there are also ‘discrepancies resulting in different entitlements to justice depending on where the sexual assault occurs’.
25.27 This also appears to be the case with aggravating factors. It was emphasised that ‘the range of circumstances of aggravation vary considerably between jurisdictions’, and those circumstances which are more likely to be present as elements in intimate partner assault—such as threats to life, the presence of third parties or children and harm—are not universally recognised, resulting in the inconsistent application of aggravating circumstances between jurisdictions.
25.28 Finally, concerns were expressed about inconsistency in maximum penalties for sexual assault offences. However, the National Association of Services Against Sexual Violence (NASASV) highlighted the minimal impact this has on sexual assault in the family violence context. NASASV instead emphasised the need for guidance in relation to minimum penalties because the maximum penalty is rarely applied in such sexual assaults, which ‘seem to attract even lower sentences than, for example, stranger perpetrated sexual assaults’.
25.29 Legislative reform is only one of a number of mechanisms available to respond to problems arising from the response of the legal system to sexual assault. Nonetheless, to the extent that reform of the content of sexual offences can help ensure fairness through consistent expectations and treatment of sexual assault matters across jurisdictions, the Commissions support further harmonisation of sexual assault offence provisions.
25.30 In line with this policy, the Commissions recommend that the definition of sexual intercourse or penetration should be broad and not gender-specific, and should be made more consistent across jurisdictions. The definition recommended below is in keeping with the shift away from historically gendered and restrictive definitions of sexual intercourse and is consistent with the definition in the Model Criminal Code.
25.31 While other gaps and inconsistencies have been identified, in particular with respect to the recognition of aggravating factors and penalties, the Commissions do not make recommendations in relation to these issues. The Commissions suggest, however, that when state and territory governments review sexual assault offences, they should have regard to inconsistency in these areas—particularly where offences arise in a family violence context.
Recommendation 25–1 State and territory sexual assault provisions should include a wide definition of sexual intercourse or penetration, encompassing:
(a) penetration (to any extent) of the genitalia (including surgically constructed genitalia) or anus of a person by the penis or other body part of another person and/or any object manipulated by a person;
(b) penetration of the mouth of a person by the penis of a person; and
(c) continuing sexual penetration as defined in paragraph (a) or (b) above.
 See Thomson Reuters, The Laws of Australia, vol 10, Criminal Offences, 10.3, .
 For example, there is some inconsistency between jurisdictions with respect to penetration of vagina/female genitalia or anus by a body part or object as well as penetration of the mouth by a penis. Western Australia is the only state in which the penetrative sexual offence includes the use of a victim’s body for penetration of the offender in the definition of penetration/sexual intercourse: Criminal Code (WA) s 319(1).
 In some jurisdictions it is specified as penetration of the vagina or anus: eg, Crimes Act 1900 (ACT) s 50. Penetration of a surgically constructed vagina is not included in legislative definitions in Western Australia or the ACT, nor is it included with respect to penetration of a surgically constructed vagina by an object in Tasmania (Criminal Code (Tas) s 1). For other jurisdictions, see Crimes Act 1900 (NSW) s 61H(1); Crimes Act 1958 (Vic) s 35; Criminal Code (Qld) s 1; Criminal Law Consolidation Act 1935 (SA) s 5(3); Criminal Code (NT) s 1.
 For example, in NSW, it includes ‘sexual connection occasioned by the penetration to any extent of the genitalia … of a female person or the anus of any person’ by ‘any part of the body of another person, or any object manipulated by another person’: Crimes Act 1900 (NSW) s 61H(1). See also the definition of sexual penetration in the Model Criminal Code: Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), app 2, cl 5.2.1.
 See, eg, Crimes Act 1958 (Vic) s 38A. See also Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), app 2, cl 5.2.7.
 Crimes Act 1958 (Vic) s 38.
 Criminal Code (Qld) s 48.
 Criminal Law Consolidation Act 1935 (SA) s 48.
 Criminal Code (Tas) s 185.
 Crimes Act 1900 (NSW) s 61I.
 Crimes Act 1900 (ACT) s 54; Criminal Code (NT) s 192.
 Criminal Code (WA) s 325.
 Non-consensual continuation of sexual intercourse is recognised in all jurisdictions except Queensland. See: Crimes Act 1900 (NSW) s 61H(1)(d); Criminal Code (WA) s 319(1); Criminal Law Consolidation Act 1935 (SA) s 5; Criminal Code (Tas) s 1; Crimes Act 1900 (ACT) s 50(e); Criminal Code (NT) s 1. Crimes Act 1958 (Vic) s 38(2)(b) refers to the failure to withdraw after becoming aware that a person is not consenting.
 Crimes Act 1900 (ACT) s 54(1).
 Criminal Code (Qld) s 349(1); Criminal Law Consolidation Act 1935 (SA) s 48(1); Criminal Code (NT) s 192(3).
 Under the Model Criminal Code it is proposed that the penalty would be imprisonment for a maximum of 15 years which would increase to 20 years if aggravating factors were present: Standing Committee of Attorneys-General, Model Criminal Code (1st edn, 2009) pt 5.2, div 2, cl 5.2.6.
 Crimes Act 1900 (NSW) s 61HA(3); Crimes Act 1958 (Vic) s 38(2); Criminal Law Consolidation Act 1935 (SA) s 48; Crimes Act 1900 (ACT) s 54.
 Criminal Code (NT) s 192(3)(b).
 Thomson Reuters, The Laws of Australia, vol 10, Criminal Offences, 10.3, .
 Criminal Code (WA) s 319.
 See, eg, Crimes Act 1900 (NSW) s 61J, aggravated sexual assault. See also: Crimes Act 1900 (NSW) s 61JA, which combines sexual assault perpetrated in company with another aggravating factor; Crimes Act 1958 (Vic) s 60A, sexual offence while armed with an offensive weapon; Criminal Code (WA) s 326, aggravated sexual penetration without consent.
 See, eg, Crimes Act 1958 (Vic) s 45, sexual penetration of a child under 16.
 See, eg, Criminal Code (WA) s 330, which creates an offence of having sexual intercourse with persons, other than children, incapable of consent.
 Standing Committee of Attorneys-General, Model Criminal Code (1st edn, 2009) pt 5.2, div 7.
 See, eg, Crimes Act 1900 (NSW) s 61J; Criminal Code (WA) s 326. A number of jurisdictions also have separate offences for sexual assaults taking place in these circumstances, eg, where the victim has a cognitive impairment or where the accused is in a position of authority in relation to the victim—these are discussed later in this chapter.
 Crimes Act 1900 (NSW) s 61J; Criminal Code (WA) s 326.
 In NSW, there is also a separate offence of aggravated sexual assault in company, which carries a maximum penalty of life imprisonment: Crimes Act 1900 (NSW) s 61JA.
 Crimes Act 1900 (ACT) ss 51–53.
 Criminal Code (NT) s 192(7)–(8).
 Crimes Act 1900 (NSW) s 61L; Crimes Act 1958 (Vic) s 39; Criminal Code (Qld) s 352; Criminal Code (WA) s 323; Criminal Law Consolidation Act 1935 (SA) s 56; Criminal Code (Tas) s 127.
 Crimes Act 1958 (Vic) s 39.
 Crimes Act 1900 (NSW) s 61L.
 Ibid s 61M; Criminal Code (WA) s 324; Criminal Code (Tas) s 127A.
 Crimes Act 1900 (ACT) s 60.
 Crimes Act 1900 (NSW) s 61N(2); Criminal Code (Qld) s 227; Criminal Code (Tas) s 137.
 Crimes Act 1900 (NSW) s 61O(1A): aggravating circumstances include where the act is performed in company; s 61O(3): where the accused is in a position of authority over the victim, or where the victim has a physical disability or cognitive impairment. As for sexual intercourse without consent, in relation to acts of indecency without consent the ACT provides for three further offences that relate to circumstances of aggravation, first, second and third degree: Crimes Act 1900 (ACT) ss 57–59. See also Criminal Code (WA) s 324.
 Criminal Code (NT) s 188(2).
 Thomson Reuters, The Laws of Australia, vol 10, Criminal Offences, 10.3, .
 See, eg, Crimes Act 1900 (NSW) ss 61K, 61P; Crimes Act 1958 (Vic) s 40; Criminal Code (Qld) s 351.
 Thomson Reuters, The Laws of Australia, vol 10, Criminal Offences, 10.3, .
 Crimes Act 1900 (NSW) s 61K.
 See, eg, Crimes Act 1958 (Vic) s 53; Criminal Code (Qld) s 218(1)(c). See also Crimes Act 1900 (NSW) s 38A which is a general offence relating to ‘drink spiking’.
 Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010) Questions 16–1 and 16–2.
 Law Society of New South Wales, Submission FV 205, 30 June 2010. This sentiment was echoed in submissions by the Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010 and National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010.
 National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010.