Sexual Servitude and Slavery

In the ACT, it is an offence to intentionally or recklessly cause someone to enter into sexual servitude. It is similarly an offence to intentionally or recklessly cause someone to remain in sexual servitude. The maximum penalty for these offences ranges from 15 to 19 years imprisonment, depending whether the offence is aggravated by the person in sexual servitude being under the age of 18 years.

It is also an offence to knowingly or recklessly conduct a business that is involved in the sexual servitude of others. As with the offence described above, while the maximum penalty is 15 years imprisonment, it can be increased to 19 years imprisonment if the person in sexual servitude is under the age of 18 years, making it an aggravated form of the offence.

The Offence of Sexual Servitude

The offences of sexual servitude are contained in ACT legislation in section 79 of the Crimes Act 1900. Subsection 79(1) states that a person commits an offence if their conduct intentionally or recklessly causes someone else to enter into or remain in sexual servitude. The maximum penalty for this offence is imprisonment for 15 years. However, if the offence is committed against a person younger than 18 years old, this constitutes an aggravated form of the offence and the maximum penalty increases to imprisonment for 19 years. This is set out in section 81 of the Crimes Act 1900.

Under ACT legislation, ‘sexual servitude’ is defined in section 78(1) of the Crimes Act 1900 as being the condition of a person who provides sexual services and who, because of the use of force or a threat, is not free to either:-

Stop providing sexual services; or
Leave the place or area where the person provides sexual services.

In deciding whether or not someone is free to stop providing sexual services, or to leave the place or area where the person provides sexual services, the test is: whether a reasonable adult would consider, in the circumstances, that the person is not free to stop or leave. This test is set out in subsection 78(2) of the Crimes Act 1900.

For the purpose of this offence, ‘sexual services’ is defined as ‘the commercial use or display of the body of the person providing the service for the sexual gratification of others.’ This definition is contained in section 78(1) of the Crimes Act 1900.

Furthermore, ‘threat’ is defined in subsection 78(3) of the Crimes Act 1900 as either:-

A threat of force; or
A threat to cause a person’s deportation; or
A threat of other detrimental action unless there are reasonable grounds for the threat.

It is worthwhile noting that if, at trial, the jury is not satisfied beyond reasonable doubt that you are guilty of the aggravated form of the section 79(1) offence but it is satisfied that you are otherwise guilty of an offence under section 79(1), the jury may find you not guilty of the aggravated offence but guilty of the lesser offence. This alternative verdict provision is contained in section 82 of the Crimes Act 1900.

In addition to the offence against section 79(1) of the Crimes Act 1900 described above, there is an additional sexual servitude offence specifically in relation to conducting business. Subsection 79(2) of the Crimes Act 1900 states that a person commits an offence if they conduct a business that involves the sexual servitude of others and either know that, or are reckless about whether, that business involves the sexual servitude of others. The maximum penalty for this offence is imprisonment for 15 years. However, as with the sexual servitude offence described above, if the offence is committed against a person younger than 18 years old, this constitutes an aggravated form of the offence and the maximum penalty increases to imprisonment for 19 years. This is once again set out in section 81 of the Crimes Act 1900.

For the purpose of this offence, ‘conducts a business’ includes:-

Taking part in the management of the business; or
Exercising control or direction over the business; or
Providing finance for the business.

For this reason, banks sometimes refuse to deal with brothels that are otherwise legal, due to concerns that sexual servitude may occur.

It is worthwhile noting that if, at trial, the jury is not satisfied beyond reasonable doubt that you are guilty of the aggravated form of the section 79(2) offence but it is satisfied that you are otherwise guilty of an offence under section 79(2), the jury may find you not guilty of the aggravated offence but guilty of the lesser offence. This alternative verdict provision is contained in section 82 of the Crimes Act 1900.

What Actions Might Constitute A Sexual Servitude Offence?

Examples of what would constitute a sexual servitude offence:-

You have 3 women from the Philippines living in your house and they are not in Australia legally. They provide sexual services to clients of yours in exchange for payment. Although they are happy to provide the sexual services, they wish to have more freedom, however you threaten to have them deported if they try to leave your house. This would constitute an offence under section 79(2) of the Crimes Act 1900 as you are knowingly conducting a business that involves sexual servitude. Although the women are not being forced to provide the sexual services, their condition of servitude is imposed by you threatening to have them deported if they try to leave your house. Accordingly you would be liable for imprisonment for 15 years.
You have a male stripper who comes to your house usually once a month. Sometimes you invite your friends but sometimes you use him for your sole sexual gratification. The bookings are done online and payments are taken in advance. One night after he has finished his routine, he tells you he doesn’t want to continue stripping and this will be the last time you see him. You tell him that is not an option and that if he refuses to continue stripping for you, you will tell his fiancé, who you know he keeps this a secret from. He has told you in the past that she would break off the engagement if she ever found out. Your conduct would constitute an offence under section 79(1) of the Crimes Act 1900 as you are intentionally causing the man to enter into sexual servitude by threatening to expose his stripping career to his fiancé, thereby taking away his freedom to stop providing the sexual services to you. You would be liable to imprisonment for 15 years for this offence.
Your friend returns from a holiday with a young female who begins living with him straight away, which you think is strange given that he only met her a few weeks prior. One day you ask her how old she is and she hesitates, says ‘18’, but you notice she looks visibly uncomfortable and won’t look you in the eye. You ask her another time and she says she is 18 and again, you notice she looks uncomfortable throughout the exchange. It arouses your suspicion about whether she is even 18 at all, but you do not make any further enquiries. After a few months, she confides in you while your friend is out that she is being forced to have sex with him against her will, but that she cannot stop as she needs the money that he gives her for basic living expenses which he has said that he will withhold if she does not comply with his demands. You tell her you do not want to get involved as he is your mate, and you lock her in the wine cellar as you are worried she will try and run away while your friend is out. This would constitute an aggravated offence under section 79(1) of the Crimes Act 1900 as your conduct caused her to remain in sexual servitude and you were reckless about whether she was even 18 years old, after hearing her give two different responses and witnessing her discomfort during the conversations. You would therefore be liable to imprisonment for 19 years as your recklessness as to her age is sufficient to make the offence an aggravated offence.

Examples of what would NOT constitute a sexual servitude offence:-

You provide finance for your cousin to open a brothel. You do not use the services yourself but you see it as a worthwhile business opportunity, plus your cousin is very close to you and you want to help her out. She is closer to you than even your own sister and you believe she tells you everything. For an abundance of caution you visit the brothel occasionally while the employees are getting ready and you chat to them. Most of them are local women either from Canberra or surrounding NSW towns, and they seem happy when you speak to them. You ask them directly whether they have any concerns or recommendations about how the business could be improved and they say that everything is great, they like the way the rooms are set up and they do not indicate that anything is wrong. You are shocked when police arrest you and charge you with an offence under section 79(2) for financing a business that involves sexual servitude. It is only during the interview with police that you find out that your cousin once waved a syringe around and threatened to use it on one of the employees when she said she wanted to resign. You learnt from police that your cousin had threatened the women, telling them that if any of them ever left her brothel they would ‘pay’, as she again waved the syringe which was filled with an unknown liquid. Fortunately, you would not be guilty of this offence as you did not know that there was sexual servitude involved, and were not reckless about whether sexual servitude was involved as you had deliberately made your own enquiries to ensure the women were being treated well and were happy there, and there were no indications to the contrary.

What the Police Must Prove

To convict you of an offence under section 79(1) of the Crimes Act 1900, the prosecution must prove each of the following matters beyond reasonable doubt:

That you engaged in conduct; and
That conduct caused a person to enter into or remain in a condition; and
That condition was a condition of sexual servitude; and
That you either:
- Intended to cause that person to enter into or remain in sexual servitude; or
- Were reckless about causing that person to enter into or remain in sexual servitude; and

That a reasonable adult would consider, in the circumstances, that the person was not free to stop providing sexual services or to leave the place or area where they provided the sexual services.

To convict you of an aggravated form of this offence, the prosecution must in addition prove that you either:

Intended to commit the offence against a person under the age of 18 years; or
Were reckless about committing the offence against a person under the age of 18 years.

To convict you of an offence under section 79(2) of the Crimes Act 1900, the prosecution must prove each of the following matters beyond reasonable doubt:-

That you conducted a business by either:
- Taking part in the management of the business; or
- Exercising control or direction over the business; or
- Providing finance for the business; and

That business involves the sexual servitude of others; and
That you either:
- Knew that the business involves the sexual servitude of others; or
- Were reckless about whether the business involves the sexual servitude of others.

To convict you of an aggravated form of this offence, the prosecution must in addition prove that you either:-

Intended to commit the offence against a person under the age of 18 years; or
Were reckless about committing the offence against a person under the age of 18 years.

Possible Defences for Sexual Servitude Offences

The common ways to defend a charge under section 79(1) of the Crimes Act 1900 are:-

To maintain your innocence if you did not commit the offence; or
To argue that you did not engage in the conduct alleged to have caused the person to enter into or remain in sexual servitude; or
To argue that the conduct you engaged in did not cause the person to enter into or remain in sexual servitude; or
To argue that you did not intend to cause the person to enter into or remain in sexual servitude and that you were not reckless about causing that person to enter into ore remain in sexual servitude; or
To argue that the person was not in sexual servitude and that they were free to stop providing sexual services or to leave the place or area where they were providing sexual services.

To defend a charge of an aggravated offence under section 79(1) of the Crimes Act 1900 you would additionally have to argue:-

That you did not know the person was under the age of 18 years and therefore did not intend to commit the offence against a person under the age of 18 years; or
That you were not reckless about committing the offence against a person under the age of 18 years, depending what the prosecution allege.

The common ways to defend a charge under section 79(2) of the Crimes Act 1900 are:-

To maintain your innocence if you did not commit the offence; or
That you did not take part in management, exercise control or direction, or provide finance for the business (depending what the prosecution allege); or
That the business did not involve the sexual servitude of others; or
That you did not know that the business involved the sexual servitude of others and that you were not reckless about whether the business involved the sexual servitude of others.

To defend a charge of an aggravated offence under section 79(2) of the Crimes Act 1900 you would additionally have to argue:-

That you did not know the person was under the age of 18 years and therefore did not intend to commit the offence against a person under the age of 18 years; or
That you were not reckless about committing the offence against a person under the age of 18 years, depending what the prosecution allege.