Introduction

25.1 This chapter outlines the legal framework of sexual assault offences, summarises the range of existing offences across Australian jurisdictions and identifies inconsistencies in relation to elements of these offences—notably concerning the issue of consent. It also discusses the symbolic, educative and practical role that guiding principles and statements of objectives can play in the interpretation of law and the application of rules with respect to sexual offences.

25.2 The summary of offences is not comprehensive, but focuses on those sexual offences that are most likely to be committed by a current or former intimate partner or family member. For example, sexual offences proscribed in the Commonwealth criminal law such as those relating to child sex tourism,^[1] or rape or sexual violence in the context of war or as a crime against humanity^[2] are not included.^[3]

25.3 Despite extensive reform of the laws relating to sexual offences, there remain some significant gaps and inconsistencies between jurisdictions in the construction of offences. While some of these are examined in this chapter, the focus of the Commissions’ work has been on inconsistency in interpretation or application of laws in those areas with most direct impact on victims of sexual assault in a family violence context—in relation to the reporting and prosecution of offences as well as pre-trial and trial processes. These issues are discussed in Chapters 26 to 28.

25.4 The purpose of summarising sexual assault offences in this chapter is to illustrate the range of sexually coercive behaviour that is proscribed in various criminal laws and, in some instances, to point to promising approaches to counter such conduct. The discussion also provides background for later examination of pre-trial and trial processes in sexual assault proceedings.