The definitions and maximum penalties associated with various Sexual Offences in South Australia
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Rape, Unlawful Sexual Intercourse and Possession of Child Pornography
This section is to inform you about various sexual offences and the associated penalties. By looking at these penalties, you will see that sexual offending is treated very seriously in South Australia.
Rape is renown as one of the most serious offences worldwide. It carries a maximum penalty of life imprisonment. If you have been charged with rape, you should seek independent legal advice immediately.
A person will be guilty of rape if they engage or continues to engage in sexual intercourse with another person who-
- Does not consent to engaging in sexual intercourse; or
- Has withdrawn consent to sexual intercourse, and the offender knows, or, is recklessly indifferent to, the fact that the other person does not consent or has withdrawn their consent.
What are some examples of Rape?
Some examples of Rape include:
- Inserting your penis into the victim without their consent while knowing that they are not consenting or might not be consenting;
- Failing to withdraw from sexual intercourse after becoming aware that the victim was not consenting or might not be consenting;
Sexual intercourse does not just include penetration by a penis into the vagina. Sexual intercourse can include the following:
- Penetration of a person’s labia majora or anus by any part of the body of another person or by any object; or
- Fellatio (oral sexual intercourse); or
- Cunnilingus (usually meaning the oral stimulation of genitals)
What must the Police prove?
Rape allegations most commonly include situations where a person has sexually penetrated another without their consent. For this person to be convicted of rape, the prosecution may have to prove the following elements beyond reasonable doubt:
- The alleged sexually penetrated the victim (had sexual intercourse with the victim – can be proven through various methods – word of mouth may not be enough);
- Without the victim’s consent to engage in the sexual intercourse, or, that the victim had withdrawn their consent to the intercourse; and
- The alleged at the time of the sexual intercourse was either:
- Aware that the victim was not consenting or has withdrawn the consent; or
- Recklessly indifferent to the fact that the victim was not consenting.
As you can see, there are a number of factors that must be proven beyond reasonable doubt. In some examples, if the Court is not satisfied of one of these elements, the Court may rule that rape did not occur. An experienced lawyer may be able to tactically and efficiently disprove some of these elements (depending on the circumstances of the case).
What are some defences to Rape?
There are a few defences available to successfully defend a rape charge. Some examples are to:
- Argue that the victim had consented to the sexual intercourse;
- Sexual intercourse did not take place.
What Court would hear this matter?
Given the severity of this offence, it is likely that the District or Supreme Court would hear this matter.
Unlawful Sexual Intercourse
In South Australia, unlawful sexual intercourse carries a maximum penalty of imprisonment for life depending on the type of unlawful sexual intercourse. It is treated very seriously in conjunction with rape.
There are three types of unlawful sexual intercourse. They are:
- A person who has sexual intercourse with any person under the age of 14 is guilty of an offence and may be liable for imprisonment for life.
- A person who has sexual intercourse with a person under the age of 17 is guilty of an offence and may be liable for a maximum imprisonment of 10 years.
- A person who, being in a position of authority in relation to a person under the age of 18 years, has sexual intercourse with that person is guilty of an offence and may be liable for a maximum imprisonment of 10 years.
In regards to the third offence, a person in a position of authority may include:
- A teacher engaged in the education of the child; or
- A foster parent, step-parent or guardian of the child; or
- A religious official or spiritual leader providing pastoral care or religious instruction to the child; or
- A medical practitioner, psychologist or social worker providing professional services to the child; or
- A person employed or providing services in a correctional institution.
What are some examples of Unlawful Sexual Intercourse?
You will be guilty of the offence is you have sexual intercourse with a child under 14 or under 17. You will also be guilty if you have sexual intercourse with a child under18 provided that you were in a position of authority at the time of the intercourse. Unlike rape, unlawful sexual intercourse occurs even if there is the consent of the victim.
What must the Police prove?
The Police must prove that you had sexual intercourse with the victim and that the child was under a specific age abovementioned.
What are the defences to this charge?
A possible defence to this charge may be to argue that you did not have sexual intercourse with the victim.
Another defence to this charge may be to prove that: (this may only be applicable to the second type of unlawful sexual intercourse)
- The victim was 16 years or older on the date of the offence; and
- The accused was under the age of 17; or
- The accused believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of 17 years.
Importantly, it must be remembered that consent is not a defence to unlawful sexual intercourse.
Which Court will hear this matter?
It is likely that the Supreme or District Court will hear this type of matter given the severity.
Possession of Child Pornography
In South Australia, Possession of Child Exploitation Material carries a maximum penalty of 10 years imprisonment (depending on whether it is your first or second offending and if it is aggravated). It is treated very seriously by the Courts.
A person will be guilty of this offence if:
- They had possession of child exploitation material knowing of its pornographic nature; or
- Intended to obtain access to child exploitation material, obtains access to child exploitation material, or takes a step towards obtaining access to child exploitation material.
The penalty for a first offence is 5 years imprisonment for a basic offence or 7 years for an aggravated offence. The penalty for subsequent offending is imprisonment for 7 years for a basic offence or 10 years for an aggravated offence.
What are some defences to this offence?
It is a defence to this charge if the exploitation material (pornographic material) came into the person’s possession unsolicited (unwantedly) and the person took reasonable steps to get rid of it as soon as he or she became aware of the material and its pornographic nature.
In addition to this, the person may argue that the material was not pornographic in nature (i.e. it was artistic material, or was genuine medical, legal scientific or educational material). It may also be argued that the person believed that the victim was over 18 years.
Do I need a lawyer to represent me if I have committed a sexual offence?
Yes. There are many defenses to argue to successfully beat a sexual charge, as well as lessening the penalty. If you are worried about imprisonment, fines or having a criminal record, we urge that you contact a lawyer immediately. Our solicitors specialize in these matters and will use their experience and expertise to lead you through the process to the best possible outcome. Remember, all cases are arguable and defendable!
Where to Next?
In South Australia, you can see that these offences are treated very seriously. It is therefore important to get the best legal advice as early as possible. Call the best – Call Liptak Lawyers on (08) 8366 6584
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