Sexual offences in the ACT are governed by the Crimes Act 1900. As well as including numerous offences against children below the age of consent, the act sets out various categories of offences involving sexual intercourse with adults. In most sexual offences against adults, an absence of consent is an essential element.
A person who commits this offence in company with another person commits an offence punishable by 14 years.
Sexual intercourse is defined as the penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person, except penetration for medical or other lawful purposes. It also encompasses penetration of the genitalia or anus of a person by an object carried out by another person, except for medical purposes or as otherwise authorised by law (Section 50).
Consent is defined as free agreement. A person is not taken to have consented to sex if their consent was obtained by violence, threats of violence, threats to publicly humiliate or disgrace or by the effect of alcohol, drugs or fraud (Section 67).
Acts of Indecency
A range of offences exists in the ACT relating to acts of indecency.
A person who inflicts grievous bodily harm on another person with the intent to commit an act of indecency is guilty of a crime punishable by imprisonment for 15 years (Section 57). If the offender inflicts actual bodily harm with intent to commit an act of indecency, the offence is punishable by imprisonment for 12 years. If the offender assaults or threatens to inflict harm on the other person with the intent to commit an act of indecency, the offence is punishable by imprisonment for 10 years.
An act of indecency committed on a person without the person’s consent is an offence punishable by imprisonment for 7 years. If the act of indecency is committed in company with another person, the offence is punishable by imprisonment for 9 years.
A person who abducts another person by force or unlawfully detains another person with the intent to have sexual intercourse with the person is guilty of an offence punishable by imprisonment for 10 years (Section 63).
Sexual assault offences
Unlike other Australian states and territories, the ACT provides for different categories of physical assaults with intent to have sexual intercourse, depending on the circumstances of the assault and the level of harm inflicted.
Sexual assault in the first degree
Section 51 of the Crimes Act makes it an offence punishable by 17 years imprisonment to inflict grievous bodily harm on another person with the intent to engage in sexual intercourse with that other person or with a third person who is present or nearby. A penalty of 20 years applies for this offence if it is committed in company with another person
Sexual assault in the second degree
Section 52 makes it an offence punishable by 14 years imprisonment to inflict actual bodily harm on a person with the intent to engage in sexual intercourse with that person or with a third person who is present or nearby.
Sexual assault in the third degree
A person who assaults or threatens another person with bodily harm with intent to engage in sexual intercourse with that person or with a third person who is present or nearby is guilty of an offence punishable by 12 years imprisonment (Section 53). If this offence is committed in company with another person, it is punishable by imprisonment for 14 years.
Sexual servitude and sexual services
A range of sexual offences exists in the ACT relating to sexual servitude and the provision of sexual services.
It is an offence to intentionally or recklessly cause another person to be held in sexual servitude. It is an offence to conduct a business that involves the sexual servitude of others (Section 79). It is an offence to use deception to recruit a person to provide sexual services (Section 80).
A person commits an offence if he or she has sexual intercourse with a person knowing that person to be his or her lineal ancestor, lineal descendant, sister, brother or half-sister or half-brother. This offence is punishable by imprisonment for 10 years where the other person is an adult and by longer penalties where the other person is a child.
A person can be found guilty of incest regardless of whether the other person consented to sex.
After hearing the arguments advanced by the learned counsel on behalf of the parties, the trial court came to the conclusion that in the circumstances narrated by the witnesses of the prosecution and the evidence on record the charge levelled against accused
– Naushad under Section 376 of the IPC stands proved. Vide order dated 05.10.2005 of the Session’s Judge, the accused was convicted of the offence of rape under Section 376 of the IPC on the ground that the consent given by P.W.1
Shabana did not consent for sexual intercourse in the eyes of law. She had given consent on the ground that the accused had promised to marry her and thus this consent was obtained by the misconception of fact and therefore the case is covered under section 376 of the IPC.
The trial court held that as the facts of this case are of a very grave nature, the accused was awarded maximum sentence of life imprisonment and further stated that the victim and the accused are related to each other and the accused took undue advantage of the victim due to this relationship by keeping her under the misconception that he would marry her and committed rape on her as a result of which she became pregnant and later on gave birth to a baby daughter.
In view of the circumstances, the trial court awarded the sentence of life imprisonment for the accused and to pay a fine of 10,000/-.