The major sexual offences are to be found in the Criminal Law Consolidation Act 1935 (SA) and all references are to this Act unless otherwise stated. Special rules dealing with matters of evidence and procedure in sexual cases are to be found in the Evidence Act 1929 (SA) and the Criminal Procedure Act 1921 (SA).
For sexual offences specific to children, young people and vulnerable adults, see Offences against children, young people and vulnerable adults, Sexual offences. However, children, young people and vulnerable adults may also be the victims of the common and other sexual offences covered in this section.
This section covers offences which are alternative verdicts to one another, namely, rape, compelled sexual manipulation and indecent assault, see Alternative verdicts in sexual assault cases. For information about unlawful sexual intercourse, see Offences against children, young people and vulnerable adults, Sexual offences, Unlawful sexual intercourse.
Alternative verdict on a charge of rape, unlawful sexual intercourse or compelled sexual manipulation
If on a trial for rape, compelled sexual manipulation or unlawful sexual intercourse or an attempt to commit rape, compelled sexual manipulation or unlawful sexual intercourse the jury:
- is not satisfied that the accused is guilty of the offence charged; but
- is satisfied that the accused is guilty of an indecent assault or a common assault, or an attempt to commit indecent assault or a common assault (the 'lesser offence'),
the jury must find the accused not guilty of the offence charged, but may find the accused guilty of the lesser offence.
[Criminal Law Consolidation Act 1935 (SA) s 75]
The offence of rape occurs where a person has sexual intercourse, or continues to have sexual intercourse, with another person without the consent of that person (or continuing where consent has been withdrawn), either knowing that there is no consent or being recklessly indifferent about that consent.
It is rape even where the victim says that they do not consent, even if they do not physically resist.
It is also rape where a person compels another to engage in, or to continue to engage in sexual intercourse with a person other than the offender; or an act of self penetration; or an act of bestiality, either knowing that there is no consent or being recklessly indifferent about that consent.
Maximum penalty:life imprisonment.
[s 48 Criminal Law Consolidation Act 1935 (SA)]
The Criminal Law Consolidation Act 1935 s 5 defines sexual intercourse to include (whether heterosexual or homosexual):
- penetration of the vagina, labia majora, or anus by any part of the body of another person or by any object; or
- fellatio; or
This definition recognises the harm that can be done by inserting objects into the vagina or anus. The inclusion of penetration of body parts other than the vagina to rape legislation recognises that there is not one specific type of sexual intercourse that is inherently more significant than another.
Consent to sexual activity is defined in s 46 of the Criminal Law Consolidation Act 1935 (SA) as free and voluntary agreement. The notion of consent has been notoriously difficult to define with the added complication that juries have been known to use it to distinguish between what they regard as acceptable or unacceptable sexual practice.
In this context the legislation has been rewritten to provide a more comprehensive definition of what not having consent actually means.
Under s 46 a person is taken not to freely and voluntarily have agreed to sexual activity if:
- the person agrees because there has been force applied (this includes an express or implied threat of force to the victim or to another person) or because of a threat to denegrate, humiliate, disgrace or harrass the person or another person; or
- the victim was unlawfully detained at the time of the activity; or
- the activity occurred whilst the victim was asleep or unconscious; or
- the activity occurred whilst the victim was intoxicated to the point of being incapable of freely and voluntarily agreeing;or
- the activity occurred whilst the victim was affected by a physical, mental or intellectual condition or impairment such that they were incapable of freely or voluntarily agreeing; or
- the victim is unable to understand the nature of the activity; or
- the victim agrees to engage in the activity with a person under a mistaken belief as to the identity of that person; or
- the person is mistaken about the nature of the activity (for example, a person is taken not to freely and voluntarily agree to sexual activity if they agree to engage in the activity in the mistaken belief that the activity is necessary for the purposes of medical diagnosis, investigation or treatment, or for the purpose of hygiene).
Reckless indifference to consent
A person is guilty of rape if he or she knows that the other person does not consent (or has withdrawn their consent) or is recklessly indifferent as to whether the other person has consented. Reckless indifference in the context of sexual offences means a failure on the part of the accused to consider the other person’s wishes, they have utter disregard as to whether or not they have consented (or withdrawn consent).
Under s 47 of the Criminal Law Consolidation Act 1935 (SA) a person will be found to be recklessly indifferent to the fact of consent (or withdrawal of consent) if he or she:
- is aware of the possibility that the other person might not be consenting (or has withdrawn consent) but decides to proceed regardless of that possibility; or
- is aware of the possibility that the other person might not be consenting (or has withdrawn consent) but fails to take reasonable steps to ascertain whether the other person does in fact consent before proceeding;
- does not give any thought to whether or not the other person is consenting to the act (or has withdrawn consent).
Even where an accused was intoxicated at the time the offending occurred, he or she will be guilty of rape provided intent to commit the offence can be shown [see further s 268 (2) Criminal Law Consolidation Act 1935 (SA)].
It is an offence for a person to compel another person to engage, or continue to engage, in:
- an act of sexual manipulation of the offender; or
- an act of sexual manipulation of a person other than the offender; or
- an act of sexual self-manipulationwhere the person who is compelled does not consent to the act and the offender knows, or is recklessly indifferent to the fact that the person does not consent or has withdran consent.
For a basic offence: 10 years imprisonment
For an aggravated offence: 15 years imprisonment
[Criminal Law Consolidation Act 1935 (SA) s 48A]
Indecent assault is an offence under the Criminal Law Consolidation Act 1935 (SA).
Basic offence: 8 years imprisonment
Aggravated offence: 10 years imprisonment
(Aggravated offence includes where the victim is under 14 years old)
An assault is any kind of touching (or threat of touching) without a person's genuine consent. What is and what is not indecent is a matter of fact for the jury. It is a complex legal question as to whether an assault becomes indecent where the victim is unaware of the indecent aspects or motive of the assault, for example, when the victim believes that the assault is a legitimate medical procedure.
Consent can not be given by any person under 17 years old unless, when the victim is between 16 and 17 years, consent can be a defence for an accused who was under the age of 17 years. Consent can also be a defence if the accused can prove, on the balance of probability, that he or she believed on reasonable grounds that the victim was 17 years of age or over [Criminal Law Consolidation Act 1935 (SA) s 57(2)-(3)].
Consent cannot be given by a person under the age of 18 years in a case where the accused is the guardian, teacher, religious leader, or in certain other positions of authority over the alleged victim [Criminal Law Consolidation Act 1935 (SA) ss 57(1), 57(4)].
An alleged victim of a rape cannot be asked questions about his or her sexual reputation [s 34L Evidence Act 1929 (SA) s34L(1)(a)]. There is an exception in that cross examination of the alleged victim regarding recent sexual activities with the accused is permitted.
In certain circumstances, the trial judge may give permission for cross-examination concerning the alleged victim's sexual activities with people other than the accused. In deciding whether to give permission for such a questioning, the trial judge must bear in mind that alleged victims should not be subjected to unnecessary humiliation, distress or embarrassment, the admission of such evidence also has to be in the interests of justice. The trial judge must also consider whether the evidence that might be elicited in such cross examination is relevant to the issues at trial and also whether it might have the effect of impairing the credibility of the alleged victim. [see further s 34L(2) Evidence Act 1929 (SA)].
Corroboration is confirmation (or backing up) of an aspect of a witness's evidence by other independent evidence. In a trial for sexual assault it could be the findings of a doctor who examines the victim, torn or stained clothes worn by the victim, or the evidence of an eye-witness. In the past a judge had to tell a jury that it was unsafe to convict a person based on the uncorroborated evidence of the victim (Kelleher v The Queen(1974) 41 CLR 534). A judge is no longer required to issue this warning [s 34L(5) Evidence Act 1929 (SA) ] but in appropriate cases judges still do.
Broadly speaking, the law of evidence does not permit a witness to describe statements made by other people if that evidence is meant to show that what that other person said was true (known as hearsay). An exception to this rule is that a witness is able, in certain circumstances, to give evidence of what an alleged victim said very soon after an alleged sexual attack. This is known as evidence of 'recent complaint' [see Evidence Act 1929 (SA) s 34M(3)]. However, a jury can only ever use it as proof of the fact that a complaint had been made and evidence of consistency with the alleged victim and not as truth of what the words of complaint actually described [s 34M(4)].
See further section 34N Evidence Act 1929 (SA) on the directions a judge can make about consent in certain cases.
Young children and some people with disabilities
Some out of court statements made by alleged victims of sexual offences are admissible and may be used to prove the truth of the facts asserted in that statement. This is where the alleged victim is a child 14 years old, or younger or a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions. Further considerations apply before this evidence is admitted - see further s 34LA Evidence Act 1929 (SA). For more information about these issues, see Evidence of children, young people and vulnerable adults.
It is very important for a victim of rape or sexual assault, to be a medically examined as soon as possible after the assault for the following reasons:
- to determine if there has been any injury, especially internal, that may not be readily apparent
- to test for a sexually transmitted disease and/or unwanted pregnancy
- to collect medical evidence for possible prosecution.
The victim will be asked to have a complete medical examination. This may involve a pelvic (internal) examination, the collection of specimens for laboratory tests and the taking of photographs of injuries related to the offence. The kinds of specimens include combings of the pubic hair and vaginal or anal swabs to test for the presence of semen. Photographs may be taken of any of the injuries and may include the face, body, vaginal or anal area. If the victim decides not to proceed with immediate police action, the laboratory specimens will be held at the hospital for seventy two hours or longer if requested.
The victim can be accompanied through the medical examination by a friend, social worker or nurse. As well, he or she can request total privacy in treatment and can refuse the collection of medical evidence for use in a court case, although refusal might jeopardise a prosecution. A victim can also ask questions and receive explanations of the reasons for every test and procedure.
The proceedures for taking DNA etc from victims and volunteers is set out in Division 1 of the Criminal Law (Forensic Proceedures) Act 2007 (SA). Volounteers and Victims also have the right to request the destruction of that information under section 39 of that Act.
Yarrow Place is a Rape and Sexual Assault Service in South Australia - it has counsellors and on-call crisis response workers, they can provide medical care, including the collection of forensic evidence - see their website fo rmore information: http://www.yarrowplace.sa.gov.au/rape.htm.
A person does not give 'consent' to sexual intercourse if due to threats or terror they submit. Where sexual intercourse has occurred and the victim's will has been overborne by a threat, it is not necessary for the Crown to prove physical injuries to the victim. This is understandable, as in this situation there may well be no injury. An example would be a woman seeming to co-operate in circumstances where her child has been threatened with violence.
The lack of physical injury to a victim may be very relevant to the defence in some circumstances and may be the subject of substantial comment by defence lawyers when addressing the jury. The importance that is placed on physical injury will depend upon the circumstances. For example, if given the statement the victim has made, injuries would be expected, any absence of injury would be very important. However, if injuries could not be expected the absence of injury would not be important.
The offences covered in this Section include offences from both Commonwealth and South Australian legislation.
It is an offence to exhibit or sell indecent or offensive material. Indecent and offensive include material that is immoral or obscene; or includes:
- violence or cruelty; or
- the manufacture, supply, aquisition or use of drugs or instruments of violence or cruelty; or
- instructions in crime; or
- revolting or abhorrent things; and
would cause serious and general offence amongst reasonable adult members of the community.
Maximum penalty: $20 000 or 6 months imprisonment
[Summary Offences Act 1953 (SA) s 33(2)]
It is also an offence, with the same penalty, to do the following with indecent or offensive material:
- produce or take any step in the production of such material for the purpose of selling it [s 33(2)(a)];
- show or put it in a public place or have it visible from a public place [ss 33(2)(c)-(d)];
- show such material to a person so as to offend or insult that person or show it in a public place [s 33(2)(e)]; or
- give or show it to a minor [ss 33(2)(f)-(g)].
However, if a parent or guardian shows such material to his/her own child, it is not an offence under section 33(2) but, depending on the circumstances it is possible that charges of gross indecency could follow or that child abuse issues could be raised: see Protection of Children and Young People.
The indecent or offensive material can be confiscated [s 33(9)].
No material is indecent or offensive if it is intended for the advancement or dissemination of legal, medical or scientific knowledge or if it is part of a work of artistic merit where there is no undue emphasis on its indecent or offensive aspects [s 33(5)].
Any prosecution under section 33 cannot be commenced without consent of the Minister and the Minister must have regard to the South Australian Classification Council in making their decision [ss 33(6)-(7)].
See also the Classification (Publications, Films and Computer Games) Act 1995 (Cth).
It is an offence to distribute an invasive image of another person knowing, or having reason to believe, that the person does not consent to its distribution (often referred to as 'revenge porn'). There are criminal offences relating to revenge porn at both State and Commonwealth levels.
Aside from potentially being a criminal offence, image-based abuse can also be investigated by the Office of the eSafety Commissioner, who has the ability to require the removal of images from websites, and can issue civil penalties in certain circumstances. See Office for the eSafety Commissioner for more information.
Distribution of invasive images - South Australian law
Section 26C of the Summary Offences Act 1953 (SA) prohibits the distribution of an invasive image where a person knows, or has reason to believe, that the other person does not consent to the distribution. The offence applies to both child and adult offenders.
An invasive image is defined as one in which the person is shown a place other than a public place and engaged in a private act, or alternatively, in a state of undress such that their bare genital or anal region can be seen. For females the definition also includes where bare breasts are visible. The definition excludes images that fall within the standards of morality, decency and propriety generally accepted by reasonable adults in the community (e.g. parents sending innocent pictures of their baby to family and friends).
It is a defence to a charge of distributing an invasive image if it was done for a purpose connected with law enforcement, for a medical, legal or scientific purpose or if it was undertaken by a licenced investigation agent in the course of obtaining evidence in connection with a claim for compensation, damages, a payment under a contract or some other benefit.
Maximum penalty: in the case of a person aged under 17 - $20 000 or 4 years imprisonment; in any other case - $10 000 or 2 years imprisonment.
[See Summary Offences Act 1953 (SA) s 26C]
Threat to distribute an invasive image
A person who threatens to distribute an invasive image of a person with the intention of causing fear to that person, or being recklessly indifferent as to whether fear is caused, commits an offence [Summary Offences Act 1953 (SA) s 26DA(1)]. It is often associated with the offence of distribution of invasive images (see above). Both child and adult offenders can be charged with this offence.
Maximum penalty: if the invasive image is of a person under the age of 17 - $10 000 or imprisonment for 2 years; in any other case - $5 000 or imprisonment for 1 year.
A person who threatens to distribute an image obtained by indecent filming of a person with the intention of causing fear to that person, or being recklessly indifferent as to whether fear is caused, commits an offence [Summary Offences Act 1953 (SA) s 26DA(2)].
Maximum penalty: if the person filmed was under the age of 17 - $10 000 or imprisonment for 2 years; in any other case - $5 000 or imprisonment for 1 year.
It is a defence to either charge that the person filmed or photographed consented to that particular distribution of the image the subject of the filming; or the person consented to the distribution of the image the subject of the filming generally. For either defence to apply the person the subject of the filming or photographing must not, at the time of the alleged offence, have withdrawn their consent to the distribution of the image [s 26DA(3)].
What constitutes a threat?
A threat may be either directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct. Both explicit and implicit threats are recognised [s 26DA(4)].
There are other offences under the Summary Offences Act 1953 (SA) that relate to humiliating or degrading filming, and distributing images obtained from such filming - see Humiliating or Degrading Filming.
Publication, transmission distribution, advertisement or promotion of private sexual material - Commonwealth law
The Criminal Code Act 1995 (Cth) section 474.17 makes it an offence to use a carriage service to menace, harass or cause offence. A carriage service (as defined in the Telecommunications Act 1997 (Cth)) has a broad definition and includes social media sites, email, text messages, and telephone calls. The maximum penalty for this offence is imprisonment for up to three years.
When the use of a carriage service involves the transmission, publication, distribution, advertisement or promotion of private sexual material, consideration must be given as to whether the subject of the private sexual material gave consent to the transmission [s 473.4(2)].
Section 474.17A also creates a specific offence where a carriage service is used to menace, harass or cause offence, and that offence involves the sharing of private sexual material [s 474.17A]. The maximum penalty for this offence is imprisonment for up to five years [s 474.17A(1)].
Further, where a person uses a carriage service in these circumstances to share private sexual material, and that person has had three or more civil penalty orders made against them for contraventions of the Enhancing Online Safety Act 2015 (Cth), the maximum penalty that applies is imprisonment for up to seven years [s 474.17A(4)].
What is private sexual material?
Private sexual material in these circumstances is material that:
- depicts a person who is, or appears to be, 18 years or older who is engaged in, or appears to be engaged in, a sexual pose or sexual activity where there is a reasonable expectation of privacy; or
- material which depicts, as the dominant characteristic:
- a sexual organ or anal region of a person who is, or appears to be, 18 or over; or
- the breasts of a female person who is, or appears to be 18 or over.
See Criminal Code Act 1995 (Cth) s 473.1
If the material depicts a person who is, or appears to be, under 18, then it may be considered to be child pornography material (as opposed to private sexual material) and is covered by other sections of the Criminal Code Act 1995 (Cth).
Any people who are related either as parent and child, grandparent and grandchild or as brother and sister (including half-siblings) who have sexual intercourse with each other are guilty of an offence. This does not include a family member related by marriage or adoption alone.
Maximum penalty: 10 years imprisonment
[Criminal Law Consolidation Act 1935 (SA), s 72]
The consent of the parties to the sexual intercourse is irrelevant, however, ignorance of the relationship may be a defence (for example, a brother and sister separated from birth and unaware that they are related) [s 72(2)].
The Marriage Act 1961 (Cth) provides that any person who, while married, goes through a form or ceremony of marriage with any other person is guilty of an offence [s 94(1)].
Maximum Penalty: 5 years imprisonment
It is also a defence to prove, on the balance of probabilities, that the spouse had been absent for such a time and in such circumstances as to provide reasonable grounds for presuming that the spouse was dead and also that the person believed that his or her spouse was dead. It is enough for the first part of the defence if the accused can prove that the spouse had been continually absent for seven years and that the accused had no reason to believe that the spouse was alive in that period of seven years [see s94(2)-(3)].
The Act also provides that any person who goes through a form or ceremony of marriage with a person who is married is guilty of an offence if the accused knows, or has reasonable grounds to believe, that the other person is married [s 94(4)].
Maximum Penalty: 5 years imprisonment
There is an exemption for those people who wish to go through a form or ceremony of marriage with each other more than once [s 94(5)].
The spouse of the accused can be forced to give evidence in a bigamy case, but that evidence alone is not enough to establish that the accused was married at the time of the offence [ss 94(6)-(7)].
Where a person is convicted of the sexual assault, the victim has the right to make a claim for compensation for any loss or injury (including psychological injury) caused by the offence. Compensation can be sought directly against the offender, either as a separate action or the judge who has heard the criminal case and who will be aware of the particular facts of the assault can make an order for compensation. Alternatively, a claim can be made for victims of crime compensation. Either claim can be made up to three years after the date the offence took place, see : Victims of crime compensation.
See also the Commissioner for Victim's Rights website.
The police will generally allow a victim to be interviewed by a police officer of his or her gender if asked. During the proceedings, the victim has the right to be accompanied by a friend, family member or counsellor. If the victim does not wish the case to go to court, the rape can be informally reported for police information. Once a formal report is made, it is up to the police whether the matter is pursued or dropped.
If someone is charged with rape and decides to defend the charge, a date will be set for the committal proceedings, usually a matter of some months after the offence. The committal involves the giving of all of the prosecution evidence in a Magistrates Court before a magistrate who decides whether there is sufficient evidence for the case to go to trial before a judge and jury.
The alleged victim is almost always not required to appear in person at any committal on a sexual offence charge. The usual procedure is that he or she will only be required to give their evidence once, at trial. The defence is provided with a copy of the alleged victim's statement before the committal. An accused person will only be able to question a witness (cross examine) for the prosecution if it can be shown that special reasons exist. Thus it is normal for an alleged victim to have their account of events tested only once, at trial.
If the magistrate decides that there is enough evidence the defendant will be committed for trial at the next available sitting of the District or Supreme Court.
The trial usually takes place approximately six months after the committal but this may vary considerably. Given the concerns over delays in the legal process and the adverse affect of this on child victims provisions now state that trials of child sex offences are to be given priority over less urgent criminal matters.
Vulnerable witness provisions
Facilities are now available which allows a witness to give evidence from behind a screen or from a separate room from where the witness's image is projected into the court room by use of video camera [s13A Evidence Act 1929 (SA)].
Where an accused is unrepresented they are prevented from cross examining the victim themselves, instead they can apply to have legal assistance for that part of their case [see further s13B Evidence Act 1929 (SA)].
Improper questioning by defence counsel (lawyer) is prohibited [s 25 Evidence Act 1929 (SA)]. This includes questions put in a humiliating, insulting or otherwise inappropriate manner, it includes unnecessarily repetitive or oppressive questioning, and it also includes questions apparently based on stereotypes such as sexual or racial or cultural stereotypes or stereotypes based on age or disability [s 25].
Unless the accused person consents, it is an offence under section 71A of the Evidence Act 1929 (SA) to publish the identity of an accused person, any evidence or report on proceedings relating to sexual offences by an accused person before:
- the accused is committed for trial or sentence (when charged with a minor or major indictable offence and the accused elects to be tried by a superior court); or
- the accused pleads guilty or is found guilty (when charged with a summary offence or minor indictable offence); or otherwise
- the charge is dismissed or the proceedings lapse (for example, by reason of death of the accused).Maximum penalty : $10 000 for a person, $120 000 for a corporation
However, under subsection 71A(3), the court may make a publication order, varying or removing the restriction on publishing and reporting altogether, if satisfied that it may assist with the investigation of an offence or is otherwise in the public interest. On such an application, the court will hear from all those with a 'proper interest' in the matter and will make findings of fact on the balance of probabilites without necessarily taking evidence.
Similar provisions apply to victims of sexual offences. A victim's identity may be published with the victim's consent or the judge's authorisation [s 71A(4)]. The same penalty applies to unlawful publication of victim's identity information.
Part 3 Division 5 of the Sentencing Act 2017 (SA) provides for the indeterminate detention of a person. Such an order can be made where at least two independent medical practitioners independently examine the person and determine that the person examined is incapable or unwilling to control his or her sexual instincts (to commit sexual offences) [see s 57(6)]. If an order under section 57 is made, the Supreme Court can only discharge the order if the court is satisfied that the person is capable of controlling and willing to control their sexual instincts, and that they no longer present an appreciable risk to the community [see s 58].
Such an order can also be made against a person for an offence of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse where the defendant is a registrable offender within the meaning of the Child Sex Offenders Registration Act 2006 (SA).
A person subject to an indeterminate sentence is not eligible for parole, but can apply for release on licence [see Sentencing Act 2017 (SA) s 59]. A release on licence cannot be granted unless the Supreme Court is satisfied that the person is both capable of controlling and willing to control their sexual instincts, and that they no longer present a risk to the community [see s 59(1a)].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.