Which penalties may be imposed for Sexual offences?
Generally, the maximum penalty for sexual assault is 10 years of imprisonment. However, there are circumstances in which this sentence may be increased. If the offending person’s mouth touches the other person’s genitals, for example, they can face up to 14 years in jail. And, if the offence occurs in the company of others or involves penetration, the penalty is life imprisonment.
As the offence involves violence, the Court is not required to consider a sentence of imprisonment as a sentence of last resort. The Court is also not required to prefer a sentence which allows the offender to remain in the community.
What is Rape?
Rape is broadly defined to be all forms of penetration of the vagina, anus or mouth. In theory, no one form of penetration is any more serious than the other. The offence is gender neutral, which means that both men and women may commit rape or be victims of it.
A person rapes another if the person without consent:
- has unlawful carnal knowledge of another; or
- penetrates the vulva, vagina or anus of another to any extent with an object (e.g., a bottle) or any body part other than the penis (e.g., a finger) or
- penetrates the mouth of another with the penis to any extent.
- The legal definitions of vagina, vulva, penis and genitalia include surgically constructed genitalia so as to recognise post-operative transgender persons.
The offence of rape is punishable by life imprisonment.
To convict a person of this offence, the Prosecution must prove lack of consent beyond reasonable doubt. Consent must be freely and voluntarily given by a person with the cognitive capacity to give consent.
The term ‘cognitive capacity’ recognises that a person must have the ability to understand the nature and effect of giving consent, though it does not equate to legal capacity. Some factors that impact upon a person’s cognitive capacity to consent include youth, intellectual impairment or intoxication.
Consent may not be obtained by force, threat, intimidation, fear of bodily harm, exercise of authority (e.g., where the accused is in a position of trust or authority) or fraud. The fact that an accused person is married to the complainant does not prevent them from being prosecuted for any sexual offence.
Sexual assault is an alternative verdict to rape (i.e., if charged with rape, an accused may be convicted of Sexual assault). Unlawful sodomy and incest are also available as alternative verdicts to rape.