Consent
With respect to all sexual acts or sexual activity, consent must be freely and voluntarily given. It is not free and voluntary if it is obtained by force, threats, intimidation, deceit, or other fraudulent means. A person cannot give consent if they are underage, mentally impaired, unconscious, or so intoxicated they are unable to know what is happening.
A child under 13 cannot consent to a sexual act under any circumstance. The age of 16 years is generally considered to be when a person can consent to a sexual act however, if the child is under a person’s care, they must be an adult of 18 years to validly consent. There can be a defence if the offender believed on reasonable grounds that the child was 16 years or older and was not more than 3 years older than the child but not if the child is under the offender’s care.
Sexual Offences against Children
In Western Australia, it is a crime to sexually penetrate a child, indecently deal with a child, indecently record a child, persistently engage in sexual conduct with a child and procure, incite, or encourage a child to engage in sexual behaviour or do an indecent act. These offences are dealt with in the District Court. The penalties for sexual offences against a child under 13 are terms of imprisonment ranging from 10 – 20 years. The penalties for sexual offences against a child between 13 – 16 (or 18 if the child is under the offending persons care) are terms of imprisonment ranging from 4 – 20 years depending on the age of the offender, the nature of the offence, the number of occasions of sexual acts/sexual activity and whether the child was under the offending persons’ care.
Indecent Assault
Any unwanted touching, attempted touching or threat to touch a person sexually, without their consent, can be considered an indecent assault. It can cover a wide variety of behaviours including for example, kissing, or groping someone’s breasts, genitals, or buttocks without consent to do so. The penalty for this offence is 5 years imprisonment in the District Court or 2 years imprisonment and a fine of up to $24,000 if it can be dealt with in the Magistrates Court.
An indecent assault can be aggravated if the offender is armed or pretends to be armed, is in company with other person/s, the victim is between 13 – 16 years, or if it involves threats to kill, bodily harm or acts which are likely to degrade/humiliate the victim (“Circumstances of Aggravation”). The penalty an aggravated indecent assault is 7 years imprisonment in the District Court or 3 years imprisonment and a fine of up to $36,000 if it can be dealt with in the Magistrates Court.
Sexual penetration without consent
Any person who sexually penetrates another person without their consent is guilty of a crime and is liable to imprisonment for 14 years. The term ‘sexually penetrate’ is defined in the Criminal Code and covers a broad range of sexual acts including the insertion of a body part or object into another person’s genitals, anus, or mouth as well as oral sex generally and sexual penetration charges are dealt with in the District Court. If this offence is committed in Circumstances of Aggravation, the offender is facing imprisonment of 20 years.
Sexual Coercion
A person who compels another person to engage in sexual behaviour is guilty of a crime and is liable to imprisonment for 14 years or 20 years if offence is committed in Circumstances of Aggravation.
Sexual Offences between Relatives
In Western Australia, it is a crime to engage in any sexual acts or activity with another person who is known to be a step child or lineal relative (i.e. blood related) regardless of whether they are a child or an adult. An adult person who consents to being sexually penetrated by a person who they know to be a lineal relative is also guilty of a crime. This includes parents, siblings, children, grandchildren, grandparents, half-siblings, and relationships established by adoption. In Western Australia, incest offences result in imprisonment between 3 – 20 years depending on the age of the offender, the age of the victim and the nature of the offence.
Sexual Offences against Incapable Person
In Western Australia, it is a crime to engage in any sexual acts or activity with a person who is mentally impaired and incapable of understanding the act or of guarding themselves against sexual exploitation. These offences are dealt with in the District Court and involve imprisonment between 7 – 20 years depending on the nature of the offence and whether the incapable person was under the care, supervision, or authority of the offending person.
Community Protection Register
In Western Australia, persons convicted of specific sexual offences are placed on the Community Protection Offender Register and required to adhere to strict reporting compliance for between 8 – 15 years (or in some cases life) depending on the nature of the conviction.
Legal advice and assistance
If you have been charged with any sexual offences, you should seek legal assistance from Prime Law. Our experienced lawyers can provide you with advice, represent you in relation to the charge/s and guide you through the legal process.
The content of this website is informative only, it is not legal advice. The penalties stated herein are also subject to change by way of amendments to the Criminal Code in WA.