In Western Australia, sexual penetration without consent is a serious criminal offence under the Criminal Code Act Compilation Act 1913. The penalties for this offence are severe, with offenders facing up to 14 years in prison, or up to 20 years if aggravating factors are present.
What is consent?
For sexual activity to be lawful, consent must be freely given. A person does not consent if:
- They are forced, threatened, or intimidated
- They are unconscious or too intoxicated to give informed consent
- They are under the legal age of consent
- Consent is obtained through deceit or fraud
Simply remaining silent or failing to resist does not mean consent has been given.
What Is Sexual Penetration Under WA Law?
Under Section 319 Criminal Code Act Compilation Act 1913 (WA), sexual penetration is defined as:
- Penetration of the vagina or anus with any part of the body or an object
- Oral sex, including cunnilingus and fellatio
- Insertion of a penis into another person’s mouth
This definition means a range of sexual acts can fall under this offence if they occur without valid consent.
Aggravated Sexual Penetration Without Consent
If aggravating circumstances exist, the offence becomes more serious, increasing the potential penalty to 20 years’ imprisonment.
Circumstances of aggravation include:
- The offender was armed or pretended to be armed
- The offence was committed with another person (in company)
- The victim was physically harmed during the offence
- The offence involved degrading or humiliating conduct
- The victim was threatened with harm
These factors indicate a higher level of criminal responsibility and are considered in sentencing.
Jurisdiction and Penalties
Sexual penetration without consent is an indictable offence, meaning it must be heard in the District Court of Western Australia. However, all criminal matters initially go through the Magistrates Court before being transferred.
If convicted, a prison sentence is likely. The court may set a non-parole period, which is the earliest date the offender can apply for parole.
Defences to Sexual Penetration Without Consent
One of the main issues about charges of this nature may include the issue of consent—if the alleged victim consented, no offence has occurred. Other matters to be considered may include:
- Whether the alleged offence took place
- Whether there is an issue with identity
- The credibility of the complaint
- Whether there was consent
- Whether there is an honest and reasonable mistake of belief
Honest and Reasonable but Mistaken Belief of Consent
An accused may defend a sexual penetration without consent charge if they honestly and reasonably, but mistakenly, believed the other person consented.
Since a person’s thoughts at the time cannot be directly observed, the jury assesses surrounding circumstances, such as:
- Any prior relationship between the parties.
- Behaviour of both the accused and the alleged victim before the incident.
Once this defence is raised, the burden shifts to the prosecution to prove beyond reasonable doubt that the accused did not hold an honest and reasonable mistaken belief in consent.
Seek Legal Advice if You Have Been Charged
If you have been charged with sexual penetration without consent in Western Australia, it is crucial to seek immediate legal advice. This is a serious offence with severe penalties, and having the right legal representation can significantly impact the outcome of your case.
At WN Legal, we will conduct a thorough review of the allegations, examine the evidence, and assess the strength of the prosecution’s case. We will provide clear and strategic legal advice on your options moving forward.
Our experienced criminal defence lawyers will advise you on:
- The strength of the case against you – identifying weaknesses in the prosecution’s evidence.
- The likely penalty range – understanding the potential consequences of a conviction.
- Available defences – including consent and other factual defences.
- The court process – guiding you through each stage of the proceedings.
- Evidential issues – assessing whether the evidence against you is flawed or inadmissible.
Navigating the criminal justice system can be complex and overwhelming, but you don’t have to do it alone. Contact WN Legal today for confidential legal advice and representation.
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FAQs
What is the definition of consent according to WA law?
Circumstances in which a person does not freely agree to an act include the following:
(a) the person submits because of force or the fear of force to that person or someone else;
(b) the person submits because of the fear of harm of any type to that person or someone else;
(c) the person submits because she or he is unlawfully detained;
(d) the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing;
(e) the person is incapable of understanding the sexual nature of the act;
(f) the person is mistaken about the sexual nature of the act or the identity of the person;
(g) the person mistakenly believes that the act is for medical or hygienic purposes.”
“In a relevant case the judge must direct the jury that –
(a) the fact that a person did not say or do anything to indicate free agreement to a sexual act is normally enough to show that the act took place without that person’s free agreement;
(b) a person is not to be regarded as having freely agreed to a sexual act just because –
(i) she or he did not protest or physically resist; or
(ii) she or he did not sustain physical injury; or
(iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person;
(c) in considering the accused’s alleged belief that the complainant was consenting to the sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances.”
What are the penalties for child sex offences in Western Australia, and do they include imprisonment?
Penalties for those convicted of these crimes vary based on the age of the child, the specific act, and whether the abuser was in a position of authority over the victim.
Sex offences would ordinarily attract an immediate term of imprisonment. Depending on the severity of the offending, the range of penalty will vary significantly.
It is in your best interest to immediately contact a criminal defence lawyer if you are charged with this crime.
Will I be put on the Sex Offender Register? Will my details be made public?
Depending on the type of sex offence, it is mandatory to register an offender on the Sex Offender Register once the offender is convicted (ie once the offender enters a plea of guilty or if found guilty after trial). Your details will be made available on a register. However, any person who intends to access the Sex Offender Register will have to make themselves known to the relevant authorities before they can access the Sex Offender Register.
What are the penalties for indecent dealings with a child?
Per Sections 320 and 321 of the Criminal Code,
- Where the child is under 13 years a maximum penalty of 10 years imprisonment.
- Where the child is over 13 years but under 16 years a maximum penalty of 7 years imprisonment.
- Where the child is under 16 years and the child is under the care, supervision or authority of the offender a maximum penalty of 10 years imprisonment.
- Where the child is under 18 years and the child is under the care, supervision or authority of the offender a maximum penalty of 5 years imprisonment.
What is the offence against a child under a position of authority?
The offence against a child under a position of authority in Western Australia is addressed in the Criminal Code. According to the Criminal Code Compilation Act, it is a criminal offence to engage in sexual activity with or procure, incite, or encourage sexual activity with a child under the age of 18 who is under the care, supervision, or authority of an adult.
The penalties for such offences are outlined in the Act, with imprisonment being a potential consequence. The law aims to protect children from abuse due to the power imbalance between adults and children, recognizing the vulnerability of children and the lack of true equality in dealings between children and adults
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