Australian Institute of Criminology

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Contact offences

This section of the report provides an overview of the offences for which a person who has unlawful sexual contact with a child may be charged in Australia. For the purpose of this review, contact offences were defined as those involving actual physical contact between the victim and offender for the purpose of achieving sexual gratification. Contact offences include penetrative acts (ie sexual intercourse—typically defined as penetration of the vagina or anus to any extent and oral sex; see Table 1) and non-penetrative acts (indecent assault eg masturbation).

This section of the report is divided into three parts:

  • contact offences involving a child below the legal age of consent (Table 2);
  • contact offences involving a child above the legal age of consent (Table 3); and
  • contact offences where the age of the victim is not specified (Table 4).

Contact offences involving a child below the legal age of consent

Every Australian jurisdiction has enacted legislation that criminalises sexual acts involving a child who, at the time of the offence, was below the legal age of consent (see Table 1). Generally speaking, if at the time of the offence the victim was below the age of consent, their consent to engage in the sexual act may not be used as a defence. However, in a number of jurisdictions (for example, the ACT, Victoria, Tasmania, Western Australia and South Australia) it is a defence if the defendant establishes that:

  • the accused person was a similar age to the child (defined as a 1, 2, 3 or 5 years older depending on the jurisdiction);
  • the child consented to the sexual activity; and
  • the child was over a specific age (typically 10 or 15 years old depending on the jurisdiction) and the defendant reasonably believed the child to be over the age of consent.
Table 1: The age of consent and definition of sexual intercourse, by jurisdiction
Jurisdiction Relevant legislation Definition of sexual intercourse Age of consent
Australian Capital Territory

Crimes Act 1900

  1. The penetration, to any extent, of the genitalia (includes surgically constructed or altered genitalia) or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law;
  2. the penetration, to any extent, of the genitalia (includes surgically constructed or altered genitalia) or anus of a person by an object (including animal), being penetration carried out by another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law;
  3. the introduction of any part of the penis of a person into the mouth of another person;
  4. fellatio;
  5. cunnilingus; or
  6. the continuation of sexual intercourse as defined in paragraph (a), (b), (c), (d) or (e).

16 years old

New South Wales

Crimes Act 1900

  1. The penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
    1. any part of the body of another person; or
    2. any object manipulated by another person, except where the penetration is carried out for proper medical purposes;
    3. sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person;
    4. cunnilingus; or
    5. the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

16 years old

Northern Territory

Criminal Code Act 1983

  1. The insertion to any extent by a person of his penis into the vagina, anus or mouth of another person;
  2. the insertion to any extent by a person of any part of the person’s body or an object into the vagina or anus of another person, except for the purpose of performing a medical examination or administering medical treatment; or
  3. cunnilingus or fellatio; and
  4. continues until the withdrawal of the part of the body or object from the mouth, vagina or anus into which it was inserted or the cessation of cunnilingus or fellatio, as the case may be.

    ‘Vagina’ means the internal and external female genitalia and includes a surgically constructed vagina.

16 years old

Queensland

Criminal Code Act 1899

  1. If carnal knowledge is used in defining an offence, the offence, so far as regards that element of it, is complete on penetration to any extent.
  2. Carnal knowledge includes sodomy.

    Genitalia includes surgically constructed genitalia.

16 years (all other sexual acts)

18 years (for anal sex)

South Australia

Criminal Law Consolidation Act 1935

Any activity (whether of a heterosexual or homosexual nature) consisting of or involving:

  1. penetration of a person’s vagina, labia majora or anus (includes surgically constructed or altered) by any part of the body of another person or by any object; or
  2. fellatio; or
  3. cunnilingus

    and includes a continuation of such activity.

17 years old

Tasmania

Criminal Code Act 1924

The penetration to the least degree of the vagina, genitalia, anus, or mouth by the penis and includes the continuation of sexual intercourse after such penetration. Vagina includes a surgically constructed vagina. Penis includes a surgically constructed penis.

The definition of sexual intercourse is different for the offence of indecent assault—the penetration to the least degree of the vagina, genitalia or anus of that other person by:

  1. any part of the human body other than the penis; or
  2. an inanimate object.

17 years old

Victoria

Crimes Act 1958

1) A person (A) sexually penetrates another person (B) if-

  1. A introduces (to any extent) a part of A’s body or an object into B’s vagina; or
  2. A introduces (to any extent) a part of A’s body or an object into B’s anus; or
  3. A introduces (to any extent) their penis into B’s mouth; or
  4. A, having introduced a part of A’s body or object into B’s vagina, continues to keep it there; or
  5. A, having introduced a part of A’s body or object into B’s anus, continues to keep it there; or
  6. A, having introduced their penis into B’s mouth, continues to keep it there.

    2) A person (A) also sexually penetrates another person (B) if-

  1. A causes another person to sexually penetrate B; or
  2. A causes B to take part in an act of bestiality within the meaning given by paragraph (b) or (d) of section 59(2)

    3) A person sexually penetrates themselves if-

  1. The person introduces (to any extent) a part of their body or an object into their own vagina; or
  2. The person introduces (to any extent) a part of their body or an object into their own anus; or
  3. Having introduced a part of their body or an object into their own vagina, they continue to keep it there; or
  4. Having introduced a part of their body or an object into their own anus, they continue to keep it there.

    Vagina includes:

  1. the external genitalia; and
  2. a surgically constructed vagina

16 years old

Western Australia

The Criminal Code Act Compilation Act1913

  1. To penetrate the vagina (which term includes the labia majora), the anus, or the urethra of any person with:
  1. any part of the body of another person; or
  2. an object manipulated by another person,

    except where the penetration is carried out for proper medical purposes;

  3. to manipulate any part of the body of another person so as to cause penetration of the vagina (which term includes the labia majora), the anus, or the urethra of the offender by part of the other person’s body;
  4. to introduce any part of the penis of a person into the mouth of another person; or
  5. to engage in cunnilingus or fellatio;
  6. to continue sexual penetration as defined in paragraph (a), (b), (c) or (d).

16 years old

Commonwealth

Criminal Code Act 1995

  1. To penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person;
  2. penetrate (to any extent) the mouth of a person by the penis of another person; or
  3. continue to sexually penetrate as defined in paragraph (a) or (b).

    Genitalia or others parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.

16 years old

Table 2: Contact offences involving a child below the legal age of consent, by jurisdiction
Jurisdiction Relevant legislation Section Offence Relevant aggravating factors Age of victim Maximum penalty (MP) & standard non-parole period (SNPP; if applicable)
Australian Capital Territorya

Crimes Act 1900

55(1)

Sexual intercourse with young person

<10 years old

MP: 17 years imprisonment

55(2)

Sexual intercourse with young person

<16 years old

MP: 14 years imprisonment

56(2)

Maintaining a sexual relationship with young person (engaged in sexual acts on 3 or more occasions)

<16 years old

MP: 7 years imprisonment

MP: 14 years (if during the course of the relationship offender is found to have committed another offence under this section of the Act and this other offence is punishable by a term of imprisonment for less than 14 years)

MP: Life imprisonment (if during the course of the relationship offender is found to have committed another offence under this section of the Act and this other offence is punishable by a term of imprisonment for 14 years or more years)

61(1)

Acts of indecency with young people

<10 years old

MP: 12 years imprisonment

61(2)

Acts of indecency with young people

<16 years old

MP: 10 years imprisonment

62(1)

Incest

<10 years old

MP: 20 years imprisonment

62(2)

Incest

<16 years old

MP: 15 years imprisonment

New South Walesb

Crimes Act 1900

61M(2)

Aggravated indecent assault

<16 years old

MP: 10 years imprisonment

SNPP: 8 years imprisonment

61N(1)

Act of indecency

<16 years old

MP: 2 years imprisonment

61O(1)

Aggravated act of indecency

Victim is under authority of offender (generally or at time of offence)

Victim has a serious physical disability or cognitive impairment

<16 years old

MP: 5 years imprisonment

61O(2)

Aggravated act of indecency

<10 years old

MP: 7 years imprisonment

61O(2A)

Aggravated act of indecency (involves filming the indecent act)

<16 years old

MP: 10 years imprisonment

61P

Attempt to commit offence under ss 61I—61O

Dependent on offence

Dependent on offence

MP: Offender is liable to the penalty for the commission of the offence

66A(1)

Sexual intercourse—child under 10

<10 years old

MP: Life imprisonment

SNPP: 15 years imprisonment

66B

Attempting, or assaulting with intent, to have sexual intercourse with child under 10

<10 years old

MP: 25 years imprisonment

SNPP: 10 years imprisonment

66C(1)

Sexual intercourse—child between 10 and 16

10–13 years old

MP: 16 years imprisonment

SNPP: 7 years imprisonment

66C(2)

Aggravated sexual intercourse—child between 10 and 16

Victim is under authority of offender (generally or at time of offence)

Victim has a serious physical disability or cognitive impairment

10–13 years old

MP: 20 years imprisonment

SNPP: 9 years imprisonment

66C(3)

Sexual intercourse—child between 10 and 16

14–15 years old

MP: 10 years imprisonment

66C(4)

Aggravated sexual intercourse—child between 10 and 16

Victim is under authority of offender (generally or at time of offence)

Victim has a serious physical disability or cognitive impairment

14–15 years old

MP: 12 years imprisonment

SNPP: 5 years imprisonment

66D

Attempting, or assaulting with intent, to have sexual intercourse with child between 10 and 16 (attempts offence under s 66C)

Dependent on offence

Dependent on offence

MP: Offender is liable to the penalty for the commission of the offence

66EA(1)

Persistent sexual abuse of a child (3 or more separate occasions)

<18 years old

MP: 25 years imprisonment

Northern Territoryc

Criminal Code Act 1983

127(1)

Sexual intercourse or gross indecency involving child under 16 years

Victim <11 years old

Victim is (whether generally or at the time of the commission of the offence) under the care of the offender

Child has a serious physical/intellectual disability

Offender took advantage of the child being under the influence of alcohol or a drug

<16 years old

MP: 16 years imprisonment

MP: 20 years imprisonment (if child is 10–15 years old and other aggravating features present)

MP: 25 years imprisonment (if child is <10 years old)

SNPP: 70% of the period of imprisonment that the offender is to serve under the sentencec

130(3A)

Sexual intercourse or gross indecency by provider of services to mentally ill or handicapped person

<16 years

MP: 20 years imprisonment

SNPP: 70% of the period of imprisonment that the offender is to serve under the sentencec

130(3B)

Sexual intercourse or gross indecency by provider of services to mentally ill or handicapped person

<10 years

MP: 25 years imprisonment

SNPP: 70% of the period of imprisonment that the offender is to serve under the sentencec

131A(2)

Sexual relationship with a child (3 or more occasions)

<16 years old

MP: 7 years imprisonment

MP: 20 years imprisonment (If in the course of the relationship the offender committed an offence of a sexual nature for which the offender is liable to imprisonment for 7–20 years other than offences against s 192(8) or s 192B)

MP: Life imprisonment (if in the course of the relationship the offender committed an offence against s 192(8) or s 192B or an offence of a sexual nature for which the offender is liable to imprisonment for more than 20 years)

SNPP: 70% of the period of imprisonment that the offender is to serve under the sentencec

132(2)(a)

Indecent dealing with child under 16 years (indecently dealing with a child)

Victim <10 years old

<16 years old

MP: 10 years imprisonment

MP: 14 years imprisonment (if victim <10 years old)

SNPP: 70% of the period of imprisonment that the offender is to serve under the sentencec

132(2) (c)

Indecent dealing with child under 16 years (permits themselves to be indecently dealt with by a child)

Victim <10 years old

<16 years old

MP: 10 years imprisonment

MP: 14 years imprisonment (if victim <10 years old)

SNPP: 70% of the period of imprisonment that the offender is to serve under the sentencec

134(2)

Incest

10–16 years old

MP: 20 years imprisonment

SNPP: 70% of the period of imprisonment that the offender is to serve under the sentencec

134(3)

Incest

<10 years old

MP: 25 years imprisonment

SNPP: 70% of the period of imprisonment that the offender is to serve under the sentencec

192(6)

Attempted sexual intercourse and gross indecency without consent

<16 years old

MP: 14 years imprisonment

Queenslandd

Criminal Code Act 1899

208(1)(a)

Unlawful sodomy (sodomises a person)

Victim <12 years old

Victim <18 years old or a person with an impairment of mind who is to the knowledge of the offender their lineal descendant or under their guardianship or care

<18 years old

MP: 14 years imprisonment

MP: Life imprisonment (aggravated)

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

208(1)(b)

Unlawful sodomy (permits a person <18 years old to sodomise them)

Victim <12 years old

Victim <18 years old or a person with an impairment of mind who is to the knowledge of the offender their lineal descendant or under their guardianship or care

<18 years old

MP: 14 years imprisonment

MP: Life imprisonment (aggravated)

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

210(1)(a)

Indecent treatment of children under 16

<12 years old

Offender is the child’s guardian, or for the time being, has the child under the offender’s care

Child has an impairment of the mind

<16 years old

MP: 14 years imprisonment

MP: 20 years imprisonment (aggravated)

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

210(1)(c)

Indecent treatment of children under 16 (permitting child to indecently deal with them)

Victim <12 years old

Offender is the child’s guardian, or for the time being, has the child under the offender’s care

Child has an impairment of the mind

<16 years old

MP: 14 years imprisonment

MP: 20 years (aggravated)

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

215(2)

Carnal knowledge with or of children under 16 (does not include sodomy; includes attempts)

<16 years old

MP: 14 years imprisonment (if victim is 12-15 years old, or the offence constituted an attempt and the victim was <12 years old, or the offence constituted an attempt and the offender is the guardian of the child or for the time being has the child under their care)

215(3)

Carnal knowledge with or of children under 16 (does not include sodomy; includes attempts)

Offender is the child’s guardian, or for the time being, has the child under the offender’s care

Child has an impairment of the mind

< 12 years old

MP: Life imprisonment

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

229B(1)

Maintaining a sexual relationship with a child (more than 1 unlawful sexual act over any period)

<16 years old (does not include sodomy)

<18 years old (sodomy)

MP: Life imprisonment

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

229FA

Obtaining prostitution from person who is not an adult

Victim < 16 years

< 18 years old

MP: 7 years imprisonment

MP: 14 years imprisonment (aggravated)

South Australiae

Criminal Law Consolidation Act 1935

49(1)

Unlawful sexual intercourse

<14 years old

MP: Life imprisonment

49(3)

Unlawful sexual intercourse

<17 years old

MP: 10 years imprisonment

50(1)

Persistent sexual exploitation of a child (over a period of no less than 3 days commits more than 1 act of sexual exploitation)

<17 years old (if accused is not in a position of authority in relation to the child)

<18 years old if the accused is in a position of authority in relation to the child

MP: Life imprisonment

58(1)(a)

Acts of gross indecency

<16 years old

MP: 3 years imprisonment (1st offence)

MP: 5 years imprisonment (each subsequent offence)

Tasmaniaf

Criminal Code Act 1924

124(1)

Sexual intercourse with young person

<17 years old

MP: 21 years imprisonment

125A(2)

Maintaining sexual relationship with young person (3 or more occasions)

<17 years old

MP: 21 years imprisonment

125B(1)

Indecent act with young person

<17 years old

MP: 21 years imprisonment

Victoriag,h

Crimes Act 1958

45(1)

Sexual penetration of child under the age of 16

Victim <12 years old

Victim 12–16 years old and under the care, supervision or authority of offender

<16years old

MP: 10 years imprisonment

MP: 15 years imprisonment (if victim 12–15 years old)

MP: 25 years imprisonment (if victim <12 years old)

47(1)

Indecent act with child under the age of 16

<16 years old

MP: 10 years imprisonment

47A(1)

Persistent sexual abuse of child under the age of 16

<16 years old

MP: 25 years imprisonment

Western Australiai

The Criminal Code Act Compilation Act 1913

320(2)

Child under 13, sexual offences against (sexual penetration)

<13 years old

MP: 20 years imprisonment

320(4)

Child under 13, sexual offences against (indecent dealing)

<13 years old

MP: 10 years imprisonment

321(2)

Child of or over 13 and under 16, sexual offences against (sexual penetration)

Victim is under the care, supervision or authority of the offender

13–15 years old

MP: 7 years imprisonment (where offender is <18 years old and child is not under the care, supervision or authority of the offender)

MP: 14 years imprisonment

MP: 20 years imprisonment (where the child is under the care, supervision or authority of the offender)

321(4)

Child of or over 13 and under 16, sexual offences against (indecent dealing)

Victim is under the care, supervision or authority of the offender

13–15 years old

MP: 4 years imprisonment (where offender is <18 years old and child is not under the care, supervision or authority of the offender)

MP: 7 years imprisonment

MP: 10 years imprisonment (where the child is under the care, supervision or authority of the offender)

321A(4)

Child under 16, persistent sexual conduct with (3 or more occasions)

<16 years old

MP: 20 years imprisonment

329(2)

Incest (sexual penetration)

Victim <16 years old

<18 years old

MP: 10 years imprisonment

MP: 20 years imprisonment (aggravated)

329(3)

Incest (sexual behaviour)

Victim <16 years old

<18 years old

MP: 10 years imprisonment

MP: 20 years imprisonment (aggravated)

329(4)

Incest (indecent dealing)

Victim <16 years old

<18 years old

MP: 5 years imprisonment

MP: 10 years imprisonment (aggravated)

Commonwealthj

Criminal Code Act 1995

474.25A(1)

Engaging in sexual activity with child using a carriage service

<16 years old

MP: 15 years imprisonment

474.25B

Aggravated offence (under s 474.25A(1); child has mental impairment and/or is under care, supervision or authority of defendant)

<16 years old

MP: 25 years imprisonment

a: s44 of the Criminal Code Act 2002 (ACT) stipulates that the offence of attempting to commit an offence is punishable as if the offence attempted had been committed.

b: s344A of the Crimes Act 1900 (NSW) stipulates that any person who attempts to commit any offence for which a penalty is provided under the Act shall be liable to that penalty.

c: s43BF of the Criminal Code Act (NT) stipulates that a person who attempts to commit an offence is guilty of an offence and is punishable as if the offence attempted had been committed.

d: s536 of the Criminal Code Act 1899 (Qld) stipulates that a person who attempts to commit an indictable offence punishable by life imprisonment (but not mandatory life imprisonment) is liable to 14 years imprisonment. A person who attempts to commit any other indictable offence is liable to a punishment equal to one-half of the greatest punishment to which an offender convicted of the offence is liable.

e: s270A of the Criminal Law Consolidation Act 1935 (SA) stipulates that where the penalty or maximum penalty for the principal offence (not being treason or murder) is life imprisonment, the penalty for the attempt shall be imprisonment for a term not exceeding twelve years. In any other case, the penalty for the attempt shall be a penalty not exceeding a maximum of two-thirds of the maximum penalty prescribed for the principal offence.

f: s342 of the Criminal Code Act 1924 (Tas) stipulates that where a person may be convicted of attempting to commit that crime or any other crime he could be convicted on that indictment.

g: s321P of the Crimes Act 1958 (Vic) stipulates that a person convicted of an attempt is liable to the punishment identified under s321P(a) of the Act (eg if the principal offence is punishable by lifetime imprisonment, an attempt may be punished by 25 years imprisonment). If the penalty for the relevant offence is not set out in s321P(a), the offender may be subject to a penalty not exceeding 60 percent of the maximum penalty fixed or prescribed by law for the relevant offence.

h: s11 of the Sentencing Act 1991 (Vic) stipulates that if a court sentences a prisoner to be imprisoned for the term of their natural life or a term of two years or more, the court must as part of the sentence fix a non-parole period unless they determine that doing so is inappropriate. If the court sentences an offender to be imprisoned for a term of less than two years (but more than one year), the court may, as part of the sentence fix a non-parole period. The non-parole period must be at least six months less than the term of the sentence.

i: s552 of the Criminal Code Act Compilation Act 1913 (WA) stipulates that if the principal offence is punishable on indictment with imprisonment for life, an offender who attempts to commit the offence may be punished by imprisonment for 14 years. In any other case an offender could be punished by half of the penalty with which the principal offence is punishable on indictment.

j: s11.1 of the Criminal Code Act 1995 (Cth) stipulates that a person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

Contact offences involving a child above the legal age of consent

With the exception of Queensland, Tasmania and the Commonwealth, every Australian jurisdiction has legislation in place prohibiting sexual acts involving a child who, at the time of the offence, was over the age of consent (see Table 1) and a person who at the time of the offence (or generally) was responsible for their care or supervision or was in a position of authority relative to them (see Table 3). Individuals who are responsible for the care and supervision of a child, or are in a position of authority relative to them, include (but are not limited to):

  • the child’s teacher;
  • the child’s guardian or foster carer;
  • a religious official with pastoral responsibility for the child;
  • the child’s employer;
  • the child’s youth/social worker;
  • an individual who has an established relationship with the child in connection with the provision of instruction to them (eg sport’s coach, music teacher);
  • the child’s psychologist/counsellor/doctor;
  • a police officer acting in the course of their duty in respect to the child; and
  • a custodial officer of an institution of which the child is an inmate (eg remand centre, youth residential centre etc)

All jurisdictions listed in Table 3 include provisions that offenders may use their marriage to the child at the time of the offence as a defence.

Table 3: Contact offences involving a child above the age of consent, by jurisdiction
Jurisdiction Relevant legislation Section Offence Aggravating factors Age of victim Maximum penalty & standard non-parole period (if applicable)
Australian Capital Territory

Crimes Act 1900

55A(1)

Sexual intercourse with young person under special care

16–17 years old

MP: 10 years imprisonment

61A(1)

Act of indecency with young person under special care

16–17 years old

MP: 7 years imprisonment

New South Wales

Crimes Act 1900

61N(2)

Act of indecency

>15 years old

MP: 18 months imprisonment

61O(1A)

Aggravated act of indecency

Victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender

Victim has a serious physical disability or cognitive impairment

>15 years old

MP: 3 years imprisonment

66EA(1)

Persistent sexual abuse of a child (3 or more occasions)

<18 years old

MP: 25 years imprisonment

73(1)

Sexual intercourse with child between 16 and 18 under special care (includes attempts)

16 years old

MP: 8 years imprisonment

73(2)

Sexual intercourse with child between 16 and 18 under special care (includes attempts)

17 years old

MP: 4 years imprisonment

78A

Incest

>15 years old

MP: 8 years imprisonment

78B

Attempts (of s 78A)

>15 years old

MP: 2 years imprisonment

91D(1)

Promoting or engaging in acts of child prostitution

Victim is <14 years

< 18 years old

MP: 10 years imprisonment

MP: 14 years imprisonment (aggravated)

SNPP: 6 years imprisonment

Northern Territory

Criminal Code Act 1983

128(1)

Sexual intercourse or gross indecency involving child over 16 years under special care

Victim is 16–17 years old

<18 years old

MP: 4 years imprisonment

MP: 8 years imprisonment (if child 16–17 years old)

South Australia

Criminal Law Consolidation Act 1935

49(5)

Unlawful sexual intercourse (accused is in a position of authority relative to the alleged victim)

<18 years old

MP: 10 years imprisonment

56(1)a

Indecent assault

<18 years old

MP: 8 years imprisonment

MP: 10 years imprisonment (if victim <12 years old and/or the offender abused a position of authority, or a position of trust, in committing the offence)

Victoria

Crimes Act 1958

44(2)

Incest (child, lineal descendent or step-child of de facto spouse)

<18 years old

MP: 25 years imprisonment

48(1)

Sexual penetration of 16 or 17 year old child (to whom he or she is not married and who is under the care, supervision or authority of the offender)

16–17 years old

MP: 10 years imprisonment

49(1)

Indecent act with 16 or 17 year old child (to whom he or she is not married and who is under the care, supervision or authority of the offender)

16–17 years old

MP: 5 years imprisonment

Western Australia

The Criminal Code Act Compilation Act1913

322(2)

Child of or over 16, sexual offences against by person in authority etc (sexual penetration)

16–17 years old

MP: 10 years imprisonment

322(4)

Child of or over 16, sexual offences against by person in authority etc (indecent dealing)

16–17 years old

MP: 5 years imprisonment

a: Under s 57(1) of the Criminal Law Consolidation Act 1935 (South Australia), ‘a person under the age of 18 years will be taken not to be capable of consenting to an indecent assault committed by a person who is in a position of authority in relation to the person’

Contact sexual offences where the age of the victim is not specified

Each Australian jurisdiction has also enacted legislation that prohibits non-consensual and unlawful sexual contact with any person, regardless of their age (see Table 4). The relevant sexual offences provided under Commonwealth legislature are not described in this section of the report as they pertain to sexual acts perpetrated overseas and/or against United Nations officials and so were beyond the scope of the review.

A key point of difference between the offences described in Table 4 and Tables 2 and 3 is that individuals charged with offences outlined in Table 4 may use the consent of the victim as a defence except in certain circumstances (eg the victim was mentally ill or intellectually handicapped and the offender was aware of this fact). Australian criminal law defines ‘consent’ as someone freely and voluntarily agreeing to participate in the sexual act. However, Australian criminal law also specifies that consent may be vitiated in situations where:

  • the offender inflicts violence or uses force on the child or a third person;
  • the offender threatens to inflict violence or force on the child or a third person;
  • the offender threatens to publically humiliate, harass the child or a third person;
  • the child is sleeping, unconscious, intoxicated or under the influence of a drug;
  • the child mistakenly believes the offender was someone else;
  • the child is provided with fraudulent information as to the nature and purpose of the act;
  • the child is unlawfully detained; and
  • the child does not have the capacity to consent to the activity by virtue of their age or mental incapacity.

Further, four Australian jurisdictions (Australian Capital Territory, New South Wales, Tasmania and Queensland) have introduced legislation that stipulates that consent may be vitiated in situations where the offender is in a position of authority or trust over the victim. Persons in a position of authority or trust may include teachers, health professionals, foster carers, religious officials etc.

Table 4: Contact offences where the age of the victim is not specified, by jurisdiction
Jurisdiction Relevant legislation Section Offence Aggravating factors Maximum penalty & standard non-parole period (if applicable)
Australian Capital Territory

Crimes Act 1900

51(1)

Sexual assault in the first degree (inflicts grievous bodily harm (GBH) with intent to engage in sexual intercourse)

MP: 17 years imprisonment

52(1)

Sexual assault in the second degree (inflicts actual bodily harm (ABH) with intent to engage in sexual intercourse)

MP: 14 years imprisonment

53(1)

Sexual assault in the third degree (unlawful assaults or threatens to inflict GBH or ABH with intent to engage in sexual intercourse)

MP: 12 years imprisonment

54(1)

Sexual intercourse without consent

MP: 12 years imprisonment

54(2)

Sexual intercourse without consent (offender acting in company)

MP: 14 years imprisonment

57

Act of indecency in the first degree (inflicts GHB with intent to commit an act of indecency)

MP: 15 years imprisonment

58

Act of indecency in the second degree (inflicts ABH with intent to commit an act of indecency)

MP: 12 years imprisonment

59

Act of indecency in the third degree (unlawfully assaults or threatens to inflict GHB or ABH with intent to commit an act of indecency)

MP: 10 years imprisonment

60(1)

Act of indecency without consent

MP: 7 years imprisonment

60(2)

Act of indecency without consent (in company)

MP: 9 years imprisonment

New South Wales

Crimes Act 1900

61I

Sexual assault

MP: 14 years imprisonment

SNPP: 7 years imprisonment

61J(1)

Aggravated sexual assault

Victim is <16 years old

Victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender

Victim has a serious physical disability or cognitive impairment

MP: 20 years imprisonment

SNPP: 10 years imprisonment

61JA(1)

Aggravated sexual assault in company

MP: Life imprisonment

SNPP: 15 years imprisonment

61K

Assault with intent to have sexual intercourse

MP: 20 years imprisonment

61L

Indecent assault

MP: 5 years imprisonment

61M(1)

Aggravated indecent assault

Victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender

Victim has a serious physical disability or cognitive impairment

MP: 7 years imprisonment

SNPP: 5 years imprisonment

61P

Attempt to commit offence under ss 61I—61O

Dependent on the offence

MP: Offender is liable to the penalty for the commission of the offence

66F(2)

Sexual intercourse: person responsible for care (cognitive impairment)

MP: 10 years imprisonment

66F(3)

Sexual intercourse: taking advantage of impairment

MP: 8 years imprisonment

66F(4)

Attempts of s 66F(1) or s 66F(2)

Dependent on the offence

MP: Offender is liable to the penalty for the commission of the offence

Northern Territory

Criminal Code Act 1983

130(2)

Sexual intercourse or gross indecency by provider of services to mentally ill or handicapped person

MP: 8 years imprisonment

134(1)

Incest

MP: 14 years imprisonment

SNPP: 70% of the period of imprisonment that the offender is to serve under the sentencea

192(3)

Sexual intercourse and gross indecency without consent (sexual intercourse)

Victim <16 years old

MP: 14 years imprisonment (if proscribed act is attempted with a victim who is <16 years old or during the course of the attempt harms the victim)

MP: 17 years imprisonment (if proscribed act is attempted and during the course of the attempt they seriously harm the victim)

MP: Life imprisonment

SNPP: 70% of the period of imprisonment that the offender is to serve under the sentencea

192(4)

Sexual intercourse and gross indecency without consent (gross indecency)

MP: 14 years imprisonment

SNPP: 70% of the period of imprisonment that the offender is to serve under the sentencea

192(5)

Attempted sexual intercourse and gross indecency without consent

MP: 7 years imprisonment

192(7)

Attempted sexual intercourse and gross indecency without consent (offender causes harm to victim during course of offence)

MP: 14 years imprisonment

192(8)

Attempted sexual intercourse and gross indecency without consent (offender causes serious harm to victim during course of offence)

MP: 17 years imprisonment

Queensland

Criminal Code Act 1899

208(1)(c)

Unlawful sodomy (sodomises a person with an impairment of the mind)

Victim <12 years old

Victim <18 years old or a person with an impairment of mind who is to the knowledge of the offender their lineal descendant or under their guardianship or care

MP: 14 years imprisonment

MP: Life imprisonment (aggravated)

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

208(1)(d)

Unlawful sodomy (permits a person with an impairment of the mind to sodomise them)

Victim <12 years old

Victim <18 years old or a person with an impairment of mind who is to the knowledge of the offender their lineal descendant or under their guardianship or care

MP: 14 years imprisonment

MP: Life imprisonment (aggravated)

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

216(1)

Abuse of persons with an impairment of the mind (carnal knowledge)

MP: 14 years imprisonment

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

216(2)(a-e)

Abuse of persons with an impairment of the mind (indecent dealing)

MP: 10 years imprisonment

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

216(3)

Abuse of persons with an impairment of the mind (by guardian or person responsible for care)

MP: 14 years imprisonment

MP: Life imprisonment (for constituted and attempted carnal knowledge)

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

216(3A)

Abuse of persons with an impairment of the mind (incest)

MP: 14 years imprisonment

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

222(1)

Incest (carnal knowledge)

MP: Life imprisonment

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

222(2)

Incest (attempts)

MP: 10 years imprisonment

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

349(1)

Rape

MP: Life imprisonment

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

350

Attempt to commit rape

MP: 14 years imprisonment

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

351

Assault with attempt to commit rape

MP: 14 years imprisonment

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

352(1)(a)

Sexual assaults (unlawful and indecent assault)

MP: 10 years imprisonment

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

South Australia

Criminal Law Consolidation Act 1935

48(1)

Rape (offender engages in non-consensual sexual intercourse with victim)

MP: Life imprisonment

48(2)(a)

Rape (offender compels victim to engage in sexual intercourse with another person)

MP: Life imprisonment

48A(1)(a)

Compelled sexual manipulation

Victim <12 years old

The offender abused a position of authority, or a position of trust, in committing the offence

MP: 10 years imprisonment

MP: 15 years imprisonment (aggravated)

49(6)

Unlawful sexual intercourse (victim has intellectual disability)

MP: 10 years imprisonment

51(1)

Sexual exploitation of person with a cognitive impairment (sexual intercourse or indecent contact)

MP: 10 years imprisonment

51(2)

Sexual exploitation of person with cognitive impairment (indecent manner)

Failure to obtain consent

Consent obtained by undue influence

MP: 3 years imprisonment (1st offence); 5 years imprisonment (subsequent offence)

56(1)

Indecent assault

Victim <14 years old

The offender abused a position of authority, or a position of trust, in committing the offence

MP: 8 years imprisonment

MP: 10 years imprisonment (aggravated)

72(1)

Incest

MP: 10 years imprisonment

Tasmania

Criminal Code Act 1924

126(1)

Sexual intercourse with person with mental impairment (by person responsible for their care)

MP: 21 years imprisonment

127(1)

Indecent assault

MP: 21 years imprisonment

127A(1)

Aggravated sexual assault

MP: 21 years imprisonment

129

Procuring by threats, fraud, or drugs

MP: 21 years imprisonment

133(1)

Incest

MP: 21 years imprisonment

185(1)

Rape

MP: 21 years imprisonment

Victoria

Crimes Act 1958

38(1)

Rape

MP: 25 years imprisonment

39(2)

Rape by compelling sexual penetration

MP: 25 years imprisonment

40(1)

Sexual assault

MP: 10 years imprisonment

41(1)

Sexual assault by compelling sexual touching

MP: 10 years imprisonment

42(1)

Assault with intent to commit a sexual offence

MP: 15 years imprisonment

43(1)

Threat to commit a sexual offence

MP: 6 years imprisonment

44(1)

Incest

MP: 25 years imprisonment

44(3)

Incest (father, mother, step-parent)

MP: 5 years imprisonment

44(4)

Incest (sister, brother, half-sibling)

MP: 5 years imprisonment

51(1)

Sexual offences against persons with a cognitive impairment by providers of medical and therapeutic services (sexual penetration)

MP: 10 years imprisonment

51(2)

Sexual offences against persons with a cognitive impairment by providers of medical and therapeutic services (indecent act)

MP: 5 years imprisonment

52(1)

Sexual offences against persons with a cognitive impairment by workers (sexual penetration)

MP: 10 years imprisonment

52(2)

Sexual offences against persons with a cognitive impairment by workers (indecent act)

MP: 5 years imprisonment

60A(1)

Sexual offence while armed with an offensive weapon

MP: 2 years imprisonment

Western Australia

The Criminal Code Act Compilation Act1913

323

Indecent assault

MP: 5 years imprisonment

MP: $24,000 fine and 2 years imprisonment (summary conviction penalty)

324

Aggravated indecent assault

Victim 13–15 years old

MP: 7 years imprisonment

MP: $36,000 fine and 3 years imprisonment (summary conviction penalty)

325

Sexual penetration without consent

MP: 14 years imprisonment

326

Aggravated sexual penetration without consent

Victim 13–15 years old

MP: 20 years imprisonment

327

Sexual coercion

MP: 14 years imprisonment

328

Aggravated sexual coercion

Victim 13–15 years old

MP: 20 years imprisonment

329(7)

Incest (sexual penetration of person >18 years old)

MP: 3 years imprisonment

330(2)

Incapable person, sexual offences against (sexual penetration)

Incapable person is under the care, supervision, or authority of the offender

MP: 14 years imprisonment

MP: 20 years imprisonment (aggravated)

330(4)

Incapable person, sexual offences against (indecent dealing)

Incapable person is under the care, supervision, or authority of the offender

MP: 7 years imprisonment

MP: 10 years imprisonment (aggravated)

a: Unless deemed inappropriate by the court or the sentence is suspended in part of whole