The major sexual offences are to be found in the Criminal Law Consolidation Act 1935 (SA) and all references are to this Act unless otherwise stated. Special rules dealing with matters of evidence and procedure in sexual cases are to be found in the Evidence Act 1929 (SA) and the Criminal Procedure Act 1921 (SA).
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 common and other sexual offences covered in this section.
This section covers offences which are alternative verdicts to one another, namely, rape, compelled sexual manipulation and indecent assault, see Alternative verdicts in sexual assault cases. For information about unlawful sexual intercourse, see Offences against children, young people and vulnerable adults, Sexual offences, Unlawful sexual intercourse.
Alternative verdict on a charge of rape, unlawful sexual intercourse or compelled sexual manipulation
If on a trial for rape, compelled sexual manipulation or unlawful sexual intercourse or an attempt to commit rape, compelled sexual manipulation or unlawful sexual intercourse the jury:
the jury must find the accused not guilty of the offence charged, but may find the accused guilty of the lesser offence.
[Criminal Law Consolidation Act 1935 (SA) s 75]
The offence of rape occurs where a person has sexual intercourse, or continues to have sexual intercourse, with another person without the consent of that person (or continuing where consent has been withdrawn), either knowing that there is no consent or being recklessly indifferent about that consent.
It is rape even where the victim says that they do not consent, even if they do not physically resist.
It is also rape where a person compels another to engage in, or to continue to engage in sexual intercourse with a person other than the offender; or an act of self penetration; or an act of bestiality, either knowing that there is no consent or being recklessly indifferent about that consent.
Maximum penalty:life imprisonment.
[s 48 Criminal Law Consolidation Act 1935 (SA)]
The Criminal Law Consolidation Act 1935 s 5 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 to sexual activity is defined in s 46 of the Criminal Law Consolidation Act 1935 (SA) as free and voluntary agreement. 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.
In this context the legislation has been rewritten to provide a more comprehensive definition of what not having consent actually means.
Under section 46 a person is taken not to freely and voluntarily have agreed to sexual activity if:
Reckless indifference to consent
A person is guilty of rape if he or she knows that the other person does not consent (or has withdrawn their consent) or is recklessly indifferent as to whether the other person has consented. Reckless indifference in the context of sexual offences means a failure on the part of the accused to consider the other person’s wishes, they have utter disregard as to whether or not they have consented (or withdrawn consent).
Under s 47 of the Criminal Law Consolidation Act 1935 (SA) a person will be found to be recklessly indifferent to the fact of consent (or withdrawal of consent) if he or she:
Even where an accused was intoxicated at the time the offending occurred, he or she will be guilty of rape provided intent to commit the offence can be shown [see further s 268 (2) Criminal Law Consolidation Act 1935 (SA)].
It is an offence for a person to compel another person to engage, or continue to engage, in:
Maximum penalty
For a basic offence: 10 years imprisonment
For an aggravated offence: 15 years imprisonment
[Criminal Law Consolidation Act 1935 (SA) s 48A]
Indecent assault is an offence under section 56 of the Criminal Law Consolidation Act 1935 (SA).
Maximum penalty:
Basic offence: 8 years imprisonment
Aggravated offence: 10 years imprisonment
Where the victim is under 17 years old: 10 years imprisonment
Where the victim is under 14 years old: 15 years imprisonment
An assault is any kind of touching (or threat of touching) without a person's genuine consent. What is and what is not indecent is a matter of fact for the jury. 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, for example, when the victim believes that the assault is a legitimate medical procedure.
Consent can not be given by any person under 17 years old unless, when the victim is between 16 and 17 years, consent can be a defence for an accused who was under the age of 17 years. Consent can also be a defence if the accused can prove, on the balance of probability, that he or she believed on reasonable grounds that the victim was 17 years of age or over [Criminal Law Consolidation Act 1935 (SA) s 57(2)-(3)].
Consent cannot be given by a person under 18 years old in a case where the accused is the guardian, teacher, religious leader, or in certain other positions of authority over the alleged victim [Criminal Law Consolidation Act 1935 (SA) ss 57(1), 57(4)]. However the alleged victim's consent will be a defence to this charge if the accused was in a position of authority (by providing religious, sporting, musical or other instruction to the child), the alleged victim was at least 17 years old, andthe accused person was under 18 years old themselves orbelieved on reasonable grounds that the alleged victim was at least 18 years old [s 57(1a)].
An alleged victim of a rape cannot be asked questions about his or her sexual reputation [Evidence Act 1929 (SA) s34L(1)(a)]. There is an exception in that cross examination of the alleged victim regarding recent sexual activities with the accused is permitted.
In certain circumstances, the trial judge may give permission for cross-examination concerning the alleged victim's sexual activities with people other than the accused. In deciding whether to give permission for such a questioning, the trial judge must bear in mind that alleged victims should not be subjected to unnecessary humiliation, distress or embarrassment, the admission of such evidence also has to be in the interests of justice. The trial judge must also consider whether the evidence that might be elicited in such cross examination is relevant to the issues at trial and also whether it might have the effect of impairing the credibility of the alleged victim [see further Evidence Act 1929 (SA) 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 it could be the findings of a doctor who examines 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 must no longer 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 [Evidence Act 1929 (SA) s 29B]. This direction was banned by an insertion into the Evidence Act 1929 (SA) on 1 June 2022.
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 is able, in certain circumstances, to give evidence of what an alleged victim said very soon after an alleged sexual attack. This is known as evidence of 'recent complaint' [see Evidence Act 1929 (SA) 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)].
See further section 34N Evidence Act 1929 (SA) on the directions a judge can make about consent in certain cases, and section 124 of the Criminal Procedure Act 1921 (SA) regarding expert reports of a kind referred to in section 34N(2a) of the Evidence Act 1929 (SA).
Young children and some people with disabilities
Some out of court statements made by alleged victims of sexual offences are admissible and may be used to prove the truth of the facts asserted in that statement. This is where the alleged victim is a child 14 years old, or younger or a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions. Further considerations apply before this evidence is admitted - see further s 34LA Evidence Act 1929 (SA). For more information about these issues, see Evidence of children, young people and vulnerable adults.
It is very important for a victim of rape or sexual assault, to be a medically examined as soon as possible after the assault for the following reasons:
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 friend, social worker or nurse. As well, he or she 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 etc from victims and volunteers is set out in 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 is a Rape and Sexual Assault Service in South Australia - it has counsellors and on-call crisis response workers, they can provide medical care, including the collection of forensic evidence - see their website fo rmore information: http://www.yarrowplace.sa.gov.au/rape.htm.
See also the Victims of Crime website about your consent as a victim to forensic proceedures (such as the taking of DNA evidence): http://www.voc.sa.gov.au/forensic-procedures
A person does not give 'consent' to sexual intercourse if due to threats or terror they submit. Where sexual intercourse has occurred and the victim's will has been overborne by a threat, it is not necessary for the Crown to prove physical injuries to the victim. This is understandable, as in this situation there may well be no injury. An example would be a woman seeming to co-operate in circumstances where her child has been threatened with violence.
The lack of physical injury to a victim may be very relevant to the defence in some circumstances and may be the subject of substantial comment by defence lawyers when addressing the jury. The importance that is placed on physical injury will depend upon the circumstances. For example, if given the statement the victim has made, injuries would be expected, any absence of injury would be very important. However, if injuries could not be expected the absence of injury would not be important.
The offences covered in this Section include offences from both Commonwealth and South Australian legislation.
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)].
It is a criminal offence to distribute an invasive image of another person knowing, or having reason to believe, that the person does not consent to its distribution. This is often referred to as image-based abuse. There are criminal offences relating to image-based abuse at both State and Commonwealth levels.
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. See 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 is a fine of $20,000 or imprisonment for 4 years if the person depicted is younger than 17, or a fine of $10,000 or imprisonment for 2 years in any other case.
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.
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 $10,000 or imprisonment for 2 years if the person depicted is younger than 17, or a fine of $5,000 or imprisonment for 1 year in any other case.
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)].
It is also an offence to engage in humiliating or degrading filming or distribute an image obtained by humiliating or degrading filming - see Humiliating or Degrading Filming.
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), sometimes 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)].
The Marriage Act 1961 (Cth) provides that any person who, while married, goes through a form or ceremony of marriage with any other person is guilty of an offence [s 94(1)].
Maximum Penalty: 5 years imprisonment
It will be a defence if the accused person can show reasonable grounds for having believed that he or she was not married.
It is also a defence to prove, on the balance of probabilities, that the spouse had been absent for such a time and in such circumstances as to provide reasonable grounds for presuming that the spouse was dead and also that the person believed that his or her spouse was dead. It is enough for the first part of the defence if the accused can prove that the spouse had been continually absent for seven years and that the accused had no reason to believe that the spouse was alive in that period of seven years [see s94(2)-(3)].
The Act also provides that any person who goes through a form or ceremony of marriage with a person who is married is guilty of an offence if the accused knows, or has reasonable grounds to believe, that the other person is married [s 94(4)].
Maximum Penalty: 5 years imprisonment
There is an exemption for those people who wish 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 [ss 94(6)-(7)].
Where a person is convicted of the sexual assault, the victim has the right to make a claim for compensation for any loss or injury (including psychological injury) caused by the offence. Compensation can be sought directly against the offender, either as 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. Either claim can be made up to three years after the date the offence took place, see : Victims of crime compensation.
See also the Commissioner for Victim's Rights website.
A person may seek compensation for child abuse they suffered through either a civil claim, or through the National Redress Scheme for Survivors of Institutional Child Sexual Abuse. See the Law Handbook page on Victims of Child Abuse for more information, 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.
Vulnerable witness provisions
Facilities are now available which allows a witness to give evidence from behind a screen or from a separate room from where the witness's image is projected into the court room by use of a video camera [s13A Evidence Act 1929 (SA)].
If an accused is unrepresented, they are prevented from cross-examining the victim themselves, instead they can apply to have legal assistance for that part of their case [see further s13B Evidence Act 1929 (SA)].
Improper questioning by defence counsel (lawyer) is prohibited [s 25 Evidence Act 1929 (SA)]. 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 [s 25].
Unless the accused person 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 counsel or solicitor) in relation to the charge is concluded [Evidence Act 1929 (SA) s 71A].
Maximum penalty: $10,000 for a person, $120,000 for a corporation.
Before the accused person'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.
Maximum penalty: $10,000 for a person, $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.
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