The most common sexual offences come under state law and are found in the Criminal Law Consolidation Act 1935 (SA). Some sexual offences apply across Australia and are found in the Criminal Code Act 1995 (Cth).
Special rules dealing with matters of evidence and procedure in sexual cases are found in the Evidence Act 1929 (SA) and the Criminal Procedure Act 1921 (SA). The Crimes Act 1914 (Cth) includes similar rules for Commonwealth criminal proceedings.
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 sexual offences covered in this section.
This section covers offences that are alternative verdicts to one another: rape, compelled sexual manipulation, and indecent assault. For information about unlawful sexual intercourse, see Offences against children, young people and vulnerable adults - Sexual offences - Unlawful sexual intercourse.
A defendant on trial for rape, compelled sexual manipulation, or unlawful sexual intercourse (or an attempt to commit one of these offences) may be found guilty of indecent assault or assault (or an attempt to commit indecent assault or assault) if the jury (or judge as fact-finder):
[Criminal Law Consolidation Act 1935 (SA) s 75]
The offence of rape occurs when a person (the accused) has, or continues to have, sexual intercourse with another person (the victim) who does not consent or has withdrawn consent [Criminal Law Consolidation Act 1935 (SA) s 48(1)]. The accused must know that the victim does not consent or be recklessly indifferent to the lack of consent.
It is also rape when an accused compels a victim to engage in, or continue to engage in:
either knowing that there is no consent or being recklessly indifferent about the lack of consent [s 48(2)].
The maximum penalty for rape is life in prison.
The Criminal Law Consolidation Act 1935 (SA) defines sexual intercourse to include (whether heterosexual or homosexual):
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 in the Criminal Law Consolidation Act 1935 (SA) is defined in relation to sexual activity rather than sexual intercourse. Sexual activity includes sexual intercourse [s 46(1)].
Consent to sexual activity means free and voluntary agreement [s 46(2)]. 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.
To address this, s 46(3) expands upon the definition of consent to clarify that a person is taken not to freely and voluntarily agree to sexual activity if:
Reckless indifference to consent
An accused is guilty of rape if they know that the victim does not consent (or has withdrawn their consent) or is recklessly indifferent as to whether the victim has consented. Reckless indifference in the context of sexual offences means a failure on the part of the accused to consider the victim’s wishes, or utter disregard as to whether or not they have consented (or withdrawn consent).
Under s 47 of the Criminal Law Consolidation Act 1935 (SA), an accused is recklessly indifferent to the lack or withdrawal of consent if they:
An accused who was intoxicated at the time of the conduct may nevertheless be found guilty of rape [see Criminal Law Consolidation Act 1935 (SA) s 268].
It is an offence for a person (an accused) to compel another person (a victim) to engage, or continue to engage, in:
where the victim does not consent to the act and the accused knows, or is recklessly indifferent to the fact, that the victim does not consent or has withdrawn consent [Criminal Law Consolidation Act 1935 (SA) s 48A].
The maximum penalty for a basic offence is imprisonment for 10 years and, for an aggravated offence, 15 years.
It is an offence to indecently assault a person [Criminal Law Consolidation Act 1935 (SA) s 56].
An assault is any kind of touching (or threat of touching) without a person's genuine consent [see the Law Handbook entry on assault for more information]. An indecent assault is an assault in circumstances of indecency. What is and is not indecent is a matter of fact for the jury (or the judge as fact-finder) and it may not necessarily be sexual in nature. 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.
A victim under the age of 17 cannot consent to an indecent assault unless:
A victim under the age of 18 cannot consent to an indecent assault by someone in a position of authority, such as a guardian, teacher, health professional or religious leader [s 57(1)]. An accused who is in a position of authority by virtue of providing religious, sporting, musical or similar instruction to a victim may have a defence if the victim provided consent, was at least 17 at the time, and the accused either was younger than 18 or reasonably believed the victim was at least 18 years old [s 57(1a)].
The maximum penalty for indecent assault depends on the age of the victim at the time of the offence [s 56]:
In criminal proceedings in which a person is charged with a sexual offence, evidence may not be introduced, and questions may not be asked, about the alleged victim's sexual reputation [Evidence Act 1929 (SA) s 34L(1)(a)]. Unless the trial judge orders otherwise, an alleged victim may only be asked questions about their sexual activities before or after the alleged offence if the questions relate to recent sexual activities with the accused [s 34L(1)(b)].
In certain circumstances, the judge may allow an alleged victim to be cross-examined on their sexual activities with people other than the accused. In deciding whether to permit such questioning, the judge must bear in mind that alleged victims should not be subjected to unnecessary humiliation, distress or embarrassment. The admission of such evidence must be in the interests of justice. The trial judge must also consider whether the evidence that might be elicited in such cross-examination is of substantial probative value and also whether it might impair the credibility of the alleged victim [see s 34L(2)].
Corroboration is confirmation (or backing up) of an aspect of a witness's evidence by other independent evidence. In a trial for sexual assault, this might be the findings of a doctor who examined 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 [Evidence Act 1929 (SA) s 34L(5)] but in appropriate cases judges still do.
In a trial where more than one offence is charged, the trial judge is no longer permitted to direct the jury that if the jury doubts the truthfulness or reliability of the alleged victim's evidence in relation to one charge, that doubt must be taken into account in assessing the truthfulness or reliability in relation to other charges, or in general [s 29B].
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 may, in certain circumstances, give evidence of what an alleged victim said very soon after an alleged sexual attack. This is known as evidence of recent complaint [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)].
In a trial of a sexual offence charge where consent is in issue, the judge must give certain directions to the jury as apply to the case, including [s 34N]:
The court may also receive expert evidence addressing issues of consent [s 34N(2a), see also Criminal Procedure Act 1921 (SA) s 124].
Some out of court statements made by certain alleged victims of sexual offences are admissible and may be used to prove the truth of the facts asserted in that statement. This is only where the alleged victim is a child 14 years or younger, or a person with a disability that adversely affects their capacity to give a coherent account of their experiences or respond rationally to questions. Further conditions apply before such evidence will be admitted [see Evidence Act 1929 (SA) s 34LA].
See also Evidence of vulnerable witnesses.
It is very important for a sexual assault victim to be medically examined as soon as possible after the assault:
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 72 hours or longer if requested.
The victim can be accompanied through the medical examination by a support person, such as a friend, social worker or nurse. They 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 procedures for taking DNA and other specimens from victims (and volunteers) is set out in Part 2 Division 1 of the Criminal Law (Forensic Procedures) Act 2007 (SA). Volunteers and victims also have the right to request the destruction of that information under section 39 of that Act.
Yarrow Place offers free, gender inclusive, confidential support to anyone living in South Australia aged 16 years or over who has experienced rape or sexual assault. It has counsellors and on-call crisis response workers who can provide medical care, including the collection of forensic evidence. See the Yarrow Place website for more information.
See also the Victims of Crime website about victim consent to forensic procedures (such as the taking of DNA evidence).
The offences covered in this section include both Commonwealth and South Australian offences.
Section 33 of the Summary Offences Act 1953 (SA) places legal restrictions on the sharing of indecent or offensive material.
Indecent material includes material that is immoral or obscene [s 33(1)].
Offensive material includes material that depicts
where the material would cause serious and general offence amongst reasonable adult members of the community [s 33(1)].
It is an offence to do any of the following with indecent or offensive material [s 33(2)]:
The maximum penalty is a $20,000 fine or imprisonment for 6 months.
However, if a parent or guardian shows such material to their own child, it is not an offence under section 33(2)(f) 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.
Following a finding of guilt, the indecent or offensive material can be confiscated [s 33(9)].
It is not an offence to share material in good faith for legitimate legal, medical, scientific or artistic purposes [s 33(5)].
A prosecution under s 33 cannot be commenced without consent of the Minister [s 33(6)]. The Minister must have regard to the National Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 (Cth) in making a decision [s 33(7)].
There are a number of State and Commonwealth offences that criminalise indecent filming and the distribution of humiliating, degrading or invasive content. This is often referred to as image-based abuse.
Aside from potentially being a criminal offence, image-based abuse can also be investigated by the eSafety Commissioner, who can require the removal of images from websites, and can issue civil penalties in certain circumstances. Visit the eSafety Commissioner's website 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.
An invasive image is a moving or still image in which the person is shown in a place other than a public place
A private act includes a sexual act and using a toilet [s 26A(1)].
An invasive image can include an image that has been altered by digital or other means [s 26A(1)].
The definition of invasive image excludes images that fall within the standards of morality, decency and propriety generally accepted by reasonable adults in the community [s 26A(3)]. This might include, for example, parents sharing photos of their baby to family.
The maximum penalty for distributing an invasive image is a fine of $10,000 or imprisonment for 2 years. These maximum penalties double if the person depicted is younger than 17.
It is a defence to a charge of distributing an invasive image if it was for a medical, legal, scientific or law enforcement 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 [s 26C(2)].
Threat to distribute an invasive image
It is also an offence to threaten to distribute
with the intention of causing the person fear or being recklessly indifferent as to whether fear is caused [Summary Offences Act 1953 (SA) s 26DA(1), (2)].
Indecent filming is defined in s 26A(1) and includes filming someone in a state of undress in circumstances where they would expect privacy. For more information, see Indecent filming.
A threat may be 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)].
The maximum penalty is a fine of $5,000 or imprisonment for 1 year. These maximum penalties double if the person depicted is younger than 17.
It is a defence to a charge against s 26DA that the person depicted in the image consented to that particular distribution of the image or to the distribution of the image generally. Such a defence may only be relied upon if the person depicted had not withdrawn their consent [s 26DA(3)]. A person under the age of 17 or with a cognitive impairment cannot provide effective consent [s 26E].
It is also an offence to engage in humiliating or degrading filming or to distribute an image obtained by humiliating or degrading filming. See Humiliating or degrading filming.
Artificially generated depictions
From 3 November 2025, it is an offence to create or distribute a humiliating, degrading or invasive depiction of a simulated person [Summary Offences Act 1953 (SA) ss 26G, 26H]. This is intended to target the creation and distribution of material commonly known as deepfakes.
A simulated person is a person depicted in artificially generated content that purports to be or resembles a depiction of a real person [s 26F].
Artificially generated content means visual, audio or audiovisual content created [s 26F]:
Artificially generated content does not include content captured by the other offences discussed above, such as invasive images that have been digitally altered.
A depiction includes a still image, a video and an audio recording depicting a real person [s 26F].
A humiliating or degrading depiction and an invasive depiction are defined in similar terms to the definitions used in respect of humiliating or degrading filming and distributing invasive images (above), but only in relation to artificially generated content depicting a simulated person [s 26F].
It is a defence to a charge against s 26G or s 26H if the creation or distribution occurred with the written consent of the person or persons depicted. A person under the age of 17 or with a cognitive impairment cannot provide effective consent [s 26J].
The maximum penalties for creating or sharing humiliating, degrading or invasive artificially generated depictions include fines of up to $20,000 and imprisonment for up to 4 years, depending on whether the depiction was humiliating or degrading or invasive and depending on whether the real person depicted is under the age of 17.
From 3 November 2025 it is also an offence to threaten to distribute a humiliating, degrading or invasive depiction of a simulated person, with a maximum penalty of a fine of $5,000 or imprisonment for 1 year (doubled if the person depicted or threatened is under 17) [see s 26I for more detail].
Transmission of sexual material without consent – Commonwealth law
The Commonwealth Criminal Code is set out in Schedule 1 to the Criminal Code Act 1995 (Cth).
It is an offence, under s 474.17A of the Criminal Code, to use a carriage service to transmit sexual material of another person who is or appears to be 18 years or older if the person transmitting the material knows that the person depicted does not consent to the transmission or is reckless (gives no thought) as to whether they consent.
Carriage service is broadly defined in the Telecommunications Act 1997 (Cth) and includes telephone calls, text messages and internet-based services such as social media and email. Transmit includes make available, publish, distribute, advertise and promote [s 474.17A(4)].
For the purposes of s 474.17A, sexual material means material that depicts
Sexual material includes material in an unaltered form and material that has been created or altered using technology [s 474.17A(2)]. This is intended to capture images, videos and audio that have been altered, edited or entirely created by digital technology (including artificial intelligence), commonly referred to as deepfakes.
The maximum penalty for this offence is imprisonment for 6 years.
Section 474.17A(1) will not apply if the transmission of sexual material is for a legitimate medical, scientific or law enforcement purpose or a reasonable person would consider the transmission to be acceptable [s 474.17A(3)].
Section 474.17AA creates aggravated offences if a person commits an offence against s 474.17A(1) and
The maximum penalty for an aggravated offence is imprisonment for 7 years.
If the material depicts a person who is, or appears to be, under 18, then it may be considered child abuse material and is covered by other sections of the Commonwealth Criminal Code.
In South Australia, it is a criminal offence to have sexual intercourse with a close family member [Criminal Law Consolidation Act 1935 (SA) s 72].
A close family member means
It does not include a family member related by marriage or adoption alone.
The maximum penalty for this offence is imprisonment for 10 years.
Consent is not a defence to an offence against s 72. A defendant who can establish that they did not know, and could not reasonably have known,that the person they had sexual intercourse with was a close family member will have a valid defence [s 72(2)].
It is an offence under both Commonwealth and State law for a person who is married to go through a form or ceremony of marriage with another person [Marriage Act 1961 (Cth) s 94(1) and Criminal Law Consolidation Act 1935 (SA) s 78]. Under Commonwealth law, the penalty is imprisonment for up to 5 years. Under State law, the penalty is imprisonment for up to 4 years for a first offence and 10 years for a subsequent offence.
It is a defence if the accused can show that they believed on reasonable grounds that their spouse was dead [Marriage Act 1961 (Cth) s 94(2)]. They may be able to show this if their spouse has been continually absent for at least 7 years and they had no reason to believe that their spouse was alive in that period [s 94(3)].
It is also an offence under Commonwealth law for a person to go through a form or ceremony of marriage with a person who is married, if the accused knows, or has reasonable grounds to believe, that the other person is married [s 94(4)]. This also carries a penalty of up to 5 years in prison.
The offence does not apply to a couple who wishes 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 [s 94(6)-(7)].
Where a person is convicted of sexual assault, the victim has the right to claim compensation for any loss or injury (including psychological injury) caused by the offence. Compensation can be sought directly from the offender in 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. See Victims of crime compensation or the Victims of Crime website to learn more.
A person may seek compensation for child abuse through either a civil claim or the National Redress Scheme for Survivors of Institutional Child Sexual Abuse. See Victims of Child Abuse or visit the National Redress Scheme website.
The police will generally allow a victim to be interviewed by a police officer of their own 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 the 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 never required to appear in person at any committal on a sexual offence charge. The usual procedure is that they 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 (cross-examine) a witness 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 6 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, the law now states that trials of child sex offences are to be given priority over less urgent criminal matters.
Protecting vulnerable witnesses
Under section 13A of the Evidence Act 1929 (SA), special arrangements may be made to protect vulnerable witness giving evidence in criminal proceedings. See Evidence of vulnerable witnesses.
An unrepresented accused may not cross-examine an alleged victim themselves [Evidence Act 1929 (SA) s 13B]. They can apply to have legal assistance for the purposes of cross-examination.
Improper questioning by the lawyer of the accused is prohibited [Evidence Act 1929 (SA) s 25]. This includes questions put in a humiliating, insulting or otherwise inappropriate manner, unnecessarily repetitive or oppressive questioning, and questions apparently based on stereotypes such as sexual, racial or cultural stereotypes or stereotypes based on age or disability.
Unless the accused consents, it is an offence to publish the identity of a person charged (or about to be charged) with a sexual offence before their first appearance in a court (whether personally or by legal representation) in relation to the charge is concluded [Evidence Act 1929 (SA) s 71A]. The maximum penalty is a fine of $10,000 for an individual and $120,000 for a corporation.
Before the accused's first appearance, a police officer (or any other person acting in an official capacity who is responsible for conducting the criminal investigation) must ensure that all reasonable steps are made to notify the alleged victim of the possibility of the accused person's name being published after this time [s 71A(2a)].
The identity of an alleged victim may only be published with the victim's consent or a judge's authorisation [s 71A(4)]. This operates to prohibit the publication of any statement or representation from which the alleged victim's identity might reasonably be inferred. In some cases, this will prohibit publication of the accused person's name, if their identity might identify the alleged victim. Consent to publication cannot be given where the alleged victim is a child. The maximum penalty for this offence is also a fine of $10,000 for an individual and $120,000 for a corporation.
Part 3 Division 5 of the Sentencing Act 2017 (SA) allows the Supreme Court to make an order for the indeterminate or indefinite detention of a person who has been convicted in relation to one or more of the following offences [s 57]:
An order for indefinite detention may be sought
An order may only be made in respect of a youth if they are sentenced as an adult under the Young Offenders Act 1993 (SA) [Sentencing Act 2017 (SA) s 56].
Before making an order detaining a person in custody until further order, the Court must direct at least 2 legally qualified medical practitioners to independently examine the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, their sexual instincts [s 57(6)].
Once those reports have been received, the Court may make an order for indefinite detention if satisfied that the order is appropriate [s 57(7)]. The paramount consideration of the Court must be to protect the safety of the community [s 57(8)].
If an order under section 57 is made, the Supreme Court can only discharge the order [under s 58] if satisfied that the person
A person subject to indefinite detention is not eligible for parole, but can apply for release on licence. A release on licence cannot be granted unless the Supreme Court is satisfied [under s 59(1a)] that the person
On an application to discharge an indefinite detention order, or an application for release on licence, the Court must direct at least 2 legally qualified medical practitioners to independently examine the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, their sexual instincts [ss 58(2), 59(2)].
Applications under Part 3 Division 5 of the Sentencing Act 2017 (SA) are governed by Chapter 2 Part 5 of the Uniform Special Statutory Rules 2022 (SA).
See also Liability for further detention and supervision.
From 28 April 2025, a court sentencing a serious child sex offender to a term of imprisonment must order their indefinite detention [Sentencing Act 2017 (SA) Part 3 Division 2A].
A person who has previously been found guilty of, and served time in prison for, a prescribed child sex offence will be deemed to be a serious child sex offender upon being found guilty of a triggering child sex offence committed after their release from custody [s 48G].
A prescribed child sex offence is a sexual offence prescribed under s 48C committed against or in relation to a child. This includes State offences such as rape, compelled sexual manipulation, unlawful sexual intercourse, indecent assault, acts of gross indecency, production or dissemination of child exploitation material, an offence committed interstate that corresponds to one of these offences, and a number of Commonwealth offences.
A triggering child sex offence is a sexual offence prescribed under s 48D committed against or in relation to a child on or after 28 April 2025. Section 48D prescribes a number of State offences under the Criminal Law Consolidation Act 1935 (SA) as listed above.
A serious child sex offender is presumed, in the absence of evidence to the contrary, not to be capable of controlling, or willing to control, their sexual instincts [s 48B].
Sentencing process
A court sentencing a serious child sex offender for a triggering child sex offence must first determine whether a sentence of imprisonment is to be imposed and if so, whether it is to be wholly or partially served in custody [s 48I]. If the court decides to impose a sentence of imprisonment that will be served wholly or partially in custody, then the court must order indefinite detention [s 48I and Criminal Law Consolidation Act 1935 (SA) s 5AB(1)]. The sentence of imprisonment cannot be suspended or served on home detention.
The sentencing court must specify [s 48I(2)]:
The court may only avoid imposing the mandatory penalty of indefinite detention on a serious child sex offender if satisfied that exceptional circumstances exist and it is not appropriate for the offender to be sentenced to indefinite detention [s 48J]. The court may then sentence the offender in the usual way.
Release on licence and extinguishment
The Supreme Court alone retains discretion to release a serious child sex offender on licence once they have served the minimum period of custody fixed by the sentencing court [s 48K].
The Supreme Court must consider 2 reports prepared by medical practitioners and only release a serious child sex offender on licence if satisfied that:
Every serious child sex offender released on licence must wear a tracking device [s 48K(10)].
The Supreme Court may order that a sentence of indefinite detention be extinguished under s 48M. An offender may only apply for extinguishment after serving the minimum periods of imprisonment and release on licence fixed by the sentencing court without incident. The Supreme Court must consider 2 reports prepared by medical practitioners and be satisfied that the offender is either capable of controlling and willing to control their sexual instincts or no longer presents an appreciable risk to the safety of the community.
Youths
Part 3 Division 2A does not apply to a youth unless they are sentenced for a triggering child sex offence as an adult [s 48E].
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