A brief introduction to the different kinds of Sexual Offences in Western Australia
The Criminal Code Act Compilation Act 1913 governs the criminal offences in Western Australia. Under this Act, Sexual Offences are defined and penalized under Chapter XXXI. It provides the different types of sexual assault and groups them into different categories.
The first category includes those offences in which the absence of consent on the part of the victim is an essential element and the second category includes those sexual offences in which the absence of consent is not an essential element.
I. Offences wherein absence of consent is an element
Sexual Penetration without the consent of the victim is penalized under section 325 of the Criminal Code (WA). The said section provides that, a person who sexually penetrates another person without the consent of the latter is guilty of a crime. The penalty for the sexual offence under this section is 14 years imprisonment. This penalty may be increased to 20 years if, upon the commission of the crime, the circumstances of aggravation is established. These circumstances are provided under section 319 (1) of the Code (WA), in which:
a. During, before or after the commission of the crime:
i. The accused is or pretends to be armed with any weapon;
ii. The accused committed the crime with another person;
iii. The accused does bodily harm to any person;
iv. The accused acted in a way that will substantially degrade and humiliate the victim;
v. The accused threatened to kill the victim
b. The victim is 13 years old or above but under 16 years old.
The provision of section 325 of the Code (WA) does not specifically define the term ‘penetration’ and section 319 (1) of the same code provides for a broad definition. Thus to ‘sexually penetrate’ under the law is to:
- Penetrate the vagina (including labia majora), anus, and urethra of any person by means of any part of the body or an object, except if the penetration is performed in purview of a lawful medical purpose;
- Manipulate any part of the body of the victim to cause penetration of the vagina, anus and urethra of the offender;
- Introduce any part of the penis into the mouth of the victim;
- Engage in oral sex, fellatio or cunnilingus; or
- Under this definition, the accused can either be a male or female except in cases where penile penetration is involved. In the same manner, the victim may also be a male or female under the specific circumstances provided above.
Definition of Consent
Consent which is essential in the crime of Sexual Penetration is defined under section 319 (2) of the Criminal Code (WA). It provides that consent means a free and voluntary consent to an act. It is not freely and voluntarily given if the consent is obtained either by force, threat, intimidation, deceit or fraudulent means. If a person failed to physically resist an act, which would constitute an offence if done without the consent of the person, it does not mean that the said person gave his consent to the said act. Children under 13 years old are incapable of giving consent to an act which would constitute an offence.
Lack of Cognitive Capacity
A person lacks who cognitive capacity cannot give free and voluntary consent. A person who is excessively intoxicated or is asleep are considered to be not aware of what is happening around them. Consequently, they could not give their consent freely and voluntarily if another person performed any sexual acts during such state. Mentally impaired persons are also not capable of giving free and voluntary consent.
These persons are incapable of understanding the nature of the sexual act or incapable of defending against such act. Thus a person may be held guilty of sexually penetrating another person if the latter is in a drunken stupor or a minor who do not have any comprehension of what is occurrencing around them.
Lack of Physical Resistance and Submission
Lack of physical resistance and submission is not an indicator that the victim freely and voluntarily gave consent. Section 319 (2)(b) of the Code (WA) states that a sexual act, which is normally considered to be an offence without the consent of the victim, is still regarded as an offence even if the victim did not physically resist the advances of the accused. This concept is reflected in the case of Wagenaar  WASCA 325 wherein the Court declared that intimidation have an effect on the part of the victim to freely and voluntarily give consent. In the same manner, submission to an act does not automatically give rise to a free and voluntary consent.
Coercion and Threat
Coercion and Threat is also considered to be an indicator that the victim did not give free and voluntary consent. As stated section 319 (2), consent is not voluntarily or freely given if the same is obtained by coercion, threat, force, intimidation, deceit or fraud.
The code is silent as to the degree of coercion and threat in order to vitiate consent and the Court must determine the conditions thereof during the course of the proceeding in each case. In the case of Michael v Western Australia  WASCA 66, the court held that threat and intimidation are not only limited to the threat of bodily harm or physical violence. It can either be psychological threat, i.e. blackmail, or in a form of substantial economic harm. It is in fact subjective test left to the jury to determine whether the consent of the victim was ‘obtained by’ he threat or intimidation.
Deceit and Fraud
Section 319 (2) of the Criminal Code provides that consent obtained by means of deceit and fraud are considered to be not freely and voluntarily given. Thus the accused can be held guilty of Sexual Penetration if he had sexual interaction with another person by deceiving and fraudulently misrepresenting that the sexual act is a process that will help the victim to generate a good breathing. The law however does not only limit the use of deceit and fraud in the nature of sexual act itself. It may include other fraudulently acts which would vitiate the consent of the victim.
Mistaken Belief in Consent
There are no reference in the code with regards to the intention and belief being an element of Sexual Penetration. Thus, the crucial issue that needs to be addressed is whether or not the victim gave consent to the sexual ac. Nonetheless, if the accused mistakenly believed that the victim gave free and voluntary consent, he may use the defence of Mistake of Fact under Section 24 of the Criminal Code (WA). However, the question of whether or not the victim gave free and voluntary consent is a state of things and the mistaken belief thereof must be based on reasonable and probable grounds.
Withdrawing Consent of Sex
If the sexual penetration was initially made with the free and voluntary consent of the victim, the accused may still be held liable for a non-consensual sexual offence if the victim withdraws the consent during the sexual interaction. Under section 319 (1)(e) if the person continued to penetrate another person even after the latter refused and withdraws consent, the crime of Sexual Penetration is committed.
Evidence of Sexual Pentration
The crime of Sexual Penetration in Western Australia is a serious offence and the Courts made attempts to establish as set of guidelines in determining the issue on whether the victim gave free and voluntary consent. These guidelines are crucial considering that the consent of the victim is one of the most important issues that need to be addressed.
The Courts may take into consideration the behaviour of the victim after the time when the crime was committed, after the filing of the complaint and the time interval of these events more particularly the early filing of the complaint. Corroboration of evidence is also important in this case considering that a grave and heavy penalty is being imposed for non-consensual sexual assaults. Admissibility of Evidence is also limited by the Court with regards to the sexual reputation and experiences of the victim.
Failure on the part of the victim to file a complaint at the first reasonable opportunity does not necessarily mean that he/she gave free and voluntary consent. In essence, fresh complaint is the chronological time between the commission of the offence and the filing of the complaint. It means that the complaint must be filed at the first reasonable opportunity rather than the first available opportunity.
To emphasize, it is not an indicator that non filing of a fresh complaint can be viewed that the victim gave a free and voluntary consent to the sexual act. It may be used as an evidence to support the consistency and credibility of the complaint of the victim which is a matter that should be left to the Jury to determine.
The Evidence Act 1906 (WA) provides the guidelines for cases where no complaint was made. Under section 36 BD of the Evidence Act (WA), in cases of sexual offences under the Criminal Code (WA) where evidence is provided that tends to suggest the absence of complaint, the judge shall:
a. warn the jury that absence or delay in the filing of a complaint does not necessarily mean that the alleged offence is not true; and
b. inform the jury that the victim may have a good reason for failure to file the said complaint.
The jury then must deliberate and weigh properly other evidences in the case and must be careful in considering the absence of the Complaint to the alleged offence.
Corroboration of Evidence
Corroboration of Evidence is important to affirm, support and strengthen the other evidence to the case. The corroboration must make the other evidences more credible and plausible. However, corroboration of evidence is not important to hold the guild of the accused in sexual offences. Nevertheless, the judge, in exceptional cases, will be required to warn the jury that there may be a danger of miscarriage of justice to convict the accused based on uncorroborated evidence. A good example for this case is where no complaint of the offence was filed for a long time.
The Criminal Code (WA), particularly section 323, provides that a person may be held guilty of a crime if he unlawfully and indecently assaults another person. An imprisonment of 5 years is provided as penalty for this offence and it may be increased to 7 years if circumstances of aggravation are present. A summary conviction provides an imprisonment of 2 years and a fine of $24,000 for indecent assault and it may be increased to 3 years of imprisonment and a fined of $36,000 in cases where circumstances of aggravation are present.
Other offences involving absence of consent
In Western Australia, Sexual Coercion is still considered to be a non-consensual sexual offence. Under section 327 of the Criminal Code (WA), any person who compels another to engage in a sexual behaviour can be held guilty for sexual coercion and if proven guilty, the penalty will be 14 years imprisonment.
A person is considered to be engaged in a Sexual Behaviour, as defined in section 319 (4) of the Code, if the said person sexually penetrates another person; has carnal knowledge with an animal; or penetrates the vagina (including labia majora), anus, urethra of another person by use of an object or any part of the person’s body. This does not include those penetrations that are done for a lawful and proper medical purpose.
II. Offences wherein absence of consent is not an element
Offences under this category do not require the absence of consent as an element to the crime. Even if the victim gave full consent, the accused is still criminally liable due to the serious nature of the offence. This is especially true to child victims, persons with cognitive incapacity, and those who are in a special relationship with the accused.
Victims under the prescribed age
The minimum age set by law in Western Australia in order for the immateriality of the consent of the victim to the sexual advances of the accused is 16 years old. For children under care, supervision and authority of the accused the age limit is set at 18 years old.
The knowledge of the age of the victim is irrelevant in these offences. Even if the accused did not know that the victim is under the prescribed age and the latter gave consent to the sexual act, the accused may still be held criminally liable. If the age of the victim is under the age of 13 years old, the belief of the accused is immaterial.
However if the child is at least 13 years of age but under 16 years old, it is a matter of defence on the part of the accused to prove that he has reasonable grounds to believe that the victim is over 16 years old and that the accused is not more than 3 years older over his victim. This defence is not tenable if the child victim is under the care and supervision of the accused. The accused may also prove as a matter of defence that there is a valid, legal and subsisting marriage between him/her and the child victim.
The penalties for the crime of sexually penetrating a child in Western Australia are as follows:
a. if the child victim is under 13 years of age – 20 years of imprisonment;
b. if the child is at least 13 years of age but under 16 years old – 14 years of imprisonment;
c. if the child is at least 13 years of age but under 16 – 20 years of imprisonment;
i. child of same age but under the care, supervision or authority of the accused – 20 years imprisonment
ii. child of same age and the accused is under the age of 18 years old – 7 years imprisonment
d. if the child is 16 or 17 years old and under the care, supervision or authority of the accused – 10 years of imprisonment.
Dealing With a Child
Section 319 (3) provides that any person who indecently deals with a child is still be held liable for an offence even if no sexual penetration has happened during the sexual assault. This includes procuring and permitting a child to deal indecently with any person and committing an indecent act of indecency in the presence of a child. Indecent dealing with a child is punishable by:
a. 10 years of imprisonment f the child is under 13 years of age;
b. 7 years of imprisonment if the said child is at least 13 years old but under 16 years of age;
c. 10 years imprisonment if the child is under the care and custody of the accused;
d. 4 years imprisonment if the child is not under the care and custody of the accused and the latter is under 18 years of age;
e. 5 years imprisonment I the child is 16 or 17 years old and under the care and custody of the accused.
Mentally Impaired Victims
Under the Criminal Code (WA) section 330, it is considered an offence if a person engages in a sexual behaviour with a mentally impaired person. Mentally impaired person under section 330 (1) of the Code is one who is incapable to understand the nature of the act performed by the accused or those who are incapable of guarding themselves against sexual abuse. Sexually engaging with a mentally incapable person is punishable by up to 14 years imprisonment. The prosecution must prove that the accused know that the victim is a mentally impaired person in order to hold the guilt of the accused.
Sexual Relationship With a Child
It is considered a crime in Western Australia to maintain sexual relationship with a child below 16 years of age. Under section 321A (4) of the Code (WA), the sexual relationship is determined if the sexual advances of the accused occurred in three or more occasions and on different days. 20 years imprisonment is the prescribed penalty for this crime. The accused may set up the defence of mistaken belief as to the age of the child but his age must not be more than 3 years with the child victim. Lawful marriage to the child can also be used as a defence by the accused. The determination of credibility and probability of these defences is up to the jury to determine during their deliberation.
If a person sexually penetrates a child who he knows to be a lineal relative or a de facto child is guilty of an offence and he may be imprisoned by up to 20 years as provided by section 329 of the Criminal Code (WA). A de facto child is the stepchild of the accused or a child or stepchild of the de facto partner of the accused. Lineal relative includes those persons who are lineal ancestor, descendant, brother or sister, regardless of being whole or half blood. The key element in this offence is the knowledge of the accused of his blood and linear relationship with the victim. If the prosecution fails to prove this knowledge, the accused may not be held guilty under this offence.
Breach of Morality Offences
There are several Offences in the Code which prevents any person from being put into a position where they may transgress the law and commit sexual offences. These provisions are safeguards that will protect any person for being involved or committing a sexual offence.
It is a crime to procure, incite or encourage a child to engage in any sexual behaviour or to perform any indecent act. Under section 319 (4) of the Code (WA), a person is considered to be engaged in a sexual behaviour if he either, sexually penetrates any person, has carnal knowledge with an animal, used an object or any part of the body in penetrating another person’s vagina, anus, urethra except in lawful and proper medical procedure. Recording, taking photographs of any indecent acts performed by a child is also punishable under the Code (WA).