Content warning: This article contains information and terminology related to sexual abuse, which may be distressing for some readers. At JB Solicitors, we aim to provide legal insights on sexual abuse and how we can assist. If you or someone you know may be a victim of sexual abuse, please contact your local authorities or seek support from a trusted organisation.
This article will talk about the miscellaneous provisions on sexual offences under Sections 80AA to 80AG of the Crimes Act 1900 of New South Wales, Australia.
Sexual assault is a serious matter that has terrible effects on its victims. Knowing the law is essential whether you are being accused of anything or have personally experienced a sexual offence. This article will now explain the miscellaneous provisions on sexual offences under this Act.
Miscellaneous Provisions on Sexual Offences: Referral to Child Protection Agency
Section 80AA of the Act pertains to the referral of a sexual offence case to child protection agency. It establishes the rule that:
- if someone is found guilty of an offence under Division 10 and
- If the victim is under the offender's supervision, the court may refer the case to an authorised child protection agency.
Specifically, it empowers the court to refer the matter to an appropriate child protection agency if the victim of the crime was under the offender's authority. In simpler terms, the court can involve child protective services to ensure the child's safety and well-being in such cases.
Miscellaneous Provisions on Sexual Offences: Alternative Verdicts
Section 80AB talks about alternative verdicts. To simplify this provision, please refer to the table below:
| Case Issue | Alternative Verdict |
| Question of Aggravation | A jury may find an accused person guilty of an offence under
section 61I, 61KC, or 61KE but not guilty of the offence charged.
In which case, the accused person will be punished
accordingly. This could happen if the jury is not convinced that the accused person is guilty of the offence charged but is convinced based on the evidence that the accused person is guilty of an offence under section 61J, 61KD, or 61KF. |
| Question of Aggravation in Company | During the trial of an individual for a section 61JA offence,
the jury may find the accused not guilty of the offence charged but
guilty of the subsequent offence. This is so if it is satisfied with the evidence that the accused is guilty of an offence under section 61I or 61J. In this case, the accused will be punished as if they were found guilty of the latter offence. |
| Question of Consent Regarding Complainant under 16 | When someone is tried for a crime under section 61I, the jury
may find them guilty of the crime under section 66C (3) or 66C (4)
but not guilty of the crime charged. In this case, the accused would be punished appropriately if the jury is satisfied that the accused is guilty of the crime charged rather than the crime under section 61I. |
For other alternative verdicts, you may check out section 80AB of the Crimes Act.
Miscellaneous Provisions on Sexual Offences: Accused Persons Who are Minors
Section 80AC of the Act pertains to the rule that a person is not assumed incapable of engaging in sexual activity with another person or of intending to engage in sexual activity with another person simply because of their age for the purposes of any offence.
This does not affect laws on the age at which a child can be convicted of an offence.
Note that the common law offences of rape and attempted rape are abolished under section 80AD of the Act.
Miscellaneous Provisions on Sexual Offences: Consent Not a Defence
In the following cases listed under section 80AE of the Act, the consent of the child or other person to whom the charge relates shall not constitute a defence to a charge under the following offences:
- Sexual intercourse–child under 10 (66A)
- Attempting, or assaulting with intent, to have sexual intercourse with child under 10 (66B)
- Sexual intercourse–child between 10 and 16 (66C)
- Assault with intent to have sexual intercourse–child between 10 and 16 (66D)
- Sexual touching–child under 10 (66DA) or child between 10 and 16 (66DB)
- Sexual act –child under 10 (66DC) or child between 10 and 16 (66DD)
- Aggravated sexual act–child between 10 and 16 (66DE)
- Sexual act for production of child abuse material–child under 16 (66DF)
- Sexual intercourse–young person between 16 and 18 under special care (73)
Miscellaneous Provisions on Sexual Offences: Time Uncertainty When Sexual Offence Against Child Occurred
Section 80AF applies if the following circumstances are present:
- it is uncertain as to when during a period conduct is alleged to have occurred, and
- the complainant in relation to the alleged conduct was for the whole of that period a child, and
- At no time during that period would the alleged conduct, if proven, not constitute a sexual offence.
- Due to legal changes or the child's age, the alleged conduct would have constituted multiple sexual offences during that period.
Regardless of when it occurred, a person can be prosecuted under any of those sexual crimes during that time. In prosecuting this offence:
- any requirement to establish that the offence charged was in force is satisfied if the prosecution can establish that the offence was in force at some time during that period, and
- any requirement to establish that the complainant was of a particular age is satisfied if the prosecution can establish that the complainant was of that age at some time during that period.
Miscellaneous Provisions on Sexual Offences: Defence of Similar Age
Section 80AG talks about the defence of similar age. Here, it is a defence to a prosecution for the following offences if the complainant is of or above the age of 14 years and the age difference between the complainant and the accused person is no more than 2 years:
- Sexual intercourse–child between 10 and 16 (66C)
- Sexual touching–child between 10 and 16 (66DB)
- Sexual act–child between 10 and 16 (66DD)
- Sexual intercourse–young person between 16 and 18 under special care (73)
Furthermore, in any criminal proceedings in which the application of this section is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the complainant was less than 14 years of age or that the difference in age between the complainant and the accused person is more than 2 years.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.