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Every twelve months, at the conclusion of the secondary school year, graduating students from all over Australia converge in Queensland (and no doubt elsewhere) to celebrate ‘schoolies’. For most, schoolies is a time of excitement, festivity and fun. For some, schoolies will include having sex with another person. For a few, this sex will be a crime.
The term ‘sex’ can encompass a variety of activities but, as a matter of law and for the purpose of this article, sex has its widest meaning and includes non-penetrative but overtly sexual acts, as well as penetrative sex (whether genital, oral or with objects).
The crime of sex
The Queensland Criminal Code says that sex is a crime if it occurs without the free and voluntary consent of all parties involved or if it involves a person under the age of 16. Simply because sex is engaged in voluntarily, and with apparent consent, is not, however, the end of the matter. There can be circumstances in which a person is not actually able to give consent and engaging in sex with them could be a criminal offence.
In Queensland a person must be 16 years old before it is legal for them to engage in sex. This means that, as a matter of law, it is irrelevant whether a young person is a willing participant in a sex act, an offence has been committed if they are under 16.
It is impossible for a person to consent to sex if they are incapable of doing so. This sounds self evident of course, but incapacity to consent is often not as straight forward as it sounds. In some obvious cases, for example where a person is suffering from a cognitive or intellectual impairment, or where they are unconscious, their inability to consent is clear. In other cases however, for example when a person is intoxicated but not unconscious, their ability or otherwise to consent to sex can be less obvious.
While it is not inherently illegal to have sex with a person who is intoxicated, it is almost certainly an offence to engage in sex with them if their level of intoxication is such that they cannot freely give their consent. Deliberately administering a stupefying drug, for example alcohol or a ‘date rape drug’ like Gamma-Hydroxybutyric acid (GHB) or Flunitrazepam (Rohypnol), in order to have sex with someone who would otherwise not consent to it is a very serious criminal offence.
A person’s failure to resist a sex act or to voice their non-consent to the act, does not render sex with them consensual. Consent must be given freely, voluntarily, and without any sort of threat or false pretext. It might be a crime, for example, if a person obtains another’s consent to sex by pretending that they are a movie producer, or modelling agent, when they are not. It would almost certainly be a crime for a person to obtain another’s consent to sex by pretending to be a police officer or other authority figure and threatening charges or some other detriment if sex is not engaged in.
Charges that can arise
Depending on the circumstances, a person who engages in sex with another without their consent, might be charged with a range of offences:
Rape is committed where a person engages in penetrative sex (called ‘carnal knowledge’ under Queensland law) with another person without their consent. This includes circumstances where consent is obtained under false pretences or by threats.
Sexual Assault is committed where a person engages in either penetrative sex, or other non-penetrative sexual acts, with another person without their consent. This includes circumstances where consent is obtained under false pretences or by threats.
Indecent treatment of child
Indecent treatment of a child under 16 is, as the name might suggest, the offence which is committed when a person engages in sex (of any kind) with a person under the age of 16. This is the charge which might be laid in circumstances where an otherwise willing young person engages in sex with another (though it can also encompass situations of abuse in which there is no willing participation).
It is a defence to most of the charges outlined above to establish that the accused person reasonably and honestly believed that the other person consented to sex. The reasonableness of this belief will be assessed against the objective circumstances of the incident, not merely what the accused person says they believed.
In cases where there is an allegation that a person has committed an offence because a person was under the age of 16, it is a defence to establish that the accused person reasonably believed them to be over 16. This is true unless the victim was younger than 12, in which case the defence of apparent age does not apply.
What to do if you are the victim of a sexual offence
If you, or a family member, are the victim of a sexual offence it is important that you make a full and detailed report to the Police as soon as practicable. You are entitled to have a parent, lawyer or other support person present with you when you speak with the Police or attend other examinations (such as a medical examination which might be required). The Queensland Police Service will be able to provide you, or your family member, with information about available sexual assault support services in your local area.
What to do if you are charged
If you, or a family member, are charged because of a sexual encounter with another person, it is imperative that you seek competent legal advice at the earliest opportunity. It is likely that the Police will wish to question you over the incident but you should not accept this invitation without seeking legal advice first. The consequences of a conviction for a sexual offence are almost always very serious and will often times result in a sentence of imprisonment. A conviction for most sexual offences will also result in a person being registered as a Sex Offender. Registered Sex Offenders are ordinarily subject to mandatory reporting conditions and other restrictions on their freedoms for many years.
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