In Queensland, sexual assault under section 352 of the Criminal Code Act 1899 (Qld) is a serious criminal offence and comes in various forms.
What is Sexual Assault?
Sexual assault is defined as follows:
Any person who—
(a) unlawfully and indecently assaults another person; or
(b) procures another person, without the person’s consent—
(i) to commit an act of gross indecency; or
(ii) to witness an act of gross indecency by the person or any other person;
is guilty of a crime.
What do the police have to prove?
The prosecution must prove that the defendant:
1. Assaulted the complainant
A person who strikes, touches or moves or otherwise applies force of any kind to the person of another either directly or indirectly without their consent is said to assault that other person and the act is called an assault. “Consent” means consent freely and voluntarily given by a person with the ability to know and understand what s/he is doing in giving consent.
2. The assault was unlawful
An assault is unlawful unless it is authorised, justified or excused by law.
3. The assault was indecent
The word “indecent” bears its ordinary everyday meaning. It is what the community regards as indecent. It is what offends against currently accepted standards of decency. Indecency must always be judged in the light of time, place and circumstances.
What are the penalties for Sexual Assault?
The penalties for sexual assault depend on the circumstances of the offence. The maximum penalties are:
- 10 years imprisonment.
- However, the offender is liable to a maximum penalty of 14 years imprisonment for an offence defined in subsection (1) (a) or (1) (b) (i) if the indecent assault or act of gross indecency includes bringing into contact any part of the genitalia or the anus of a person with any part of the mouth of a person.
- Further, the offender is liable to a maximum penalty of life imprisonment if—
(a) immediately before, during, or immediately after, the offence, the offender is, or pretends to be, armed with a dangerous or offensive weapon, or is in company with any other person; or
(b) for an offence defined in subsection (1) (a) , the indecent assault includes the person who is assaulted penetrating the offender’s vagina, vulva or anus to any extent with a thing or a part of the person’s body that is not a penis; or
(c) for an offence defined in subsection (1) (b) (i) , the act of gross indecency includes the person who is procured by the offender penetrating the vagina, vulva or anus of the person who is procured or another person to any extent with a thing or a part of the body of the person who is procured that is not a penis.
What are the defences to Sexual Assault?
There are several defences that may be available in a criminal charge of sexual assault in Queensland. The most common defences are:
There was consent
If the complainant consented to the sexual act a defence can be raised. Consent is defined as follows:
(1) Consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.
(2) Without limiting subsection (1), a person’s consent to an act is not freely and voluntarily given if it is obtained—
(a) by force; or
(b) by threat or intimidation; or
(c) by fear of bodily harm; or
(d) by exercise of authority; or
(e) by false and fraudulent representations about the nature or purpose of the act; or
(f) by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.
(3) A person is not to be taken to give consent to an act only because the person does not, before or at the time the act is done, say or do anything to communicate that the person does not consent to the act.
(4) If an act is done or continues after consent to the act is withdrawn by words or conduct, then the act is done or continues without consent.
Mistake of fact in relation to consent
(1) This section applies for deciding whether, for section 24, a person charged with an offence under this chapter did an act under an honest and reasonable, but mistaken, belief that the other person gave consent to the act.
(2) In deciding whether a belief of the person was honest and reasonable, regard may be had to anything the person said or did to ascertain whether the other person was giving consent to the act.
(3) In deciding whether a belief of the person was reasonable, regard may not be had to the voluntary intoxication of the person caused by alcohol, a drug or any other substance.