Cheeky Guide: sexual offences legislation
Updated: Mar 21, 2021
Content Warning: this article discusses sexual assault and is not suitable for all readers.
In this article, we provide a brief overview of legal terminology and jurisdictional differences of sexual offences in Australian legislation.
We are fighting for law reform, increased reporting and improved education around consent. Awareness is the first step. Delving into legislation in digestible ways is a vital step in achieving justice for survivors.
We need to know where we stand in relation to the law and what action we can take to improve access to justice.
RAPE/ SEXUAL ASSAULT
In Australia, rape is defined as the penetration of the vagina, anus or mouth, without consent, with any body part or object.
There is no universally accepted definition of 'sexual assault', meaning there are variations in the type of behaviour that constitutes sexual assault or rape in each Australian state.
In Queensland, Tasmania, South Australia and Victoria, 'rape' is used in criminal legislation.
NSW uses 'sexual assault' to refer to an offence involving penetration.
In ACT and NT it is referred to as 'sexual intercourse without consent'.
WA legislation utilises, 'sexual penetration without consent'.
These definitions and jurisdictional changes are vital to understand. The Australian definition of rape is broader than many other countries, and identifies that rape is not limited to penile penetration of the vagina. When we read about an instance of sexual assault that occurred in alternate jurisdictions, it is helpful to understand legal distinctions and what is being reported.
Sexual harassment is unlawful but not criminal. This means that it fits under civil anti-discrimination law. Legally, you would pursue a claim as an individual. Contrastingly, if it was a criminal act, the individual would be prosecuted by police.
sexually explicit emails/texts
displaying porn images
Sexual harassment is unlawful in specific contexts including: in the workplace and educational institutions.
In these circumstances, it is the survivor who must make a complaint or bring legal action under Australian civil law.
The victim is the 'complainant' and the perpetrator is the 'respondent' in these instances.
Think of this as the umbrella term. It incorporates a range of offences including rape, unwanted touching, child marriage, sex trafficking, genital mutilation, harassment, coercion.
We utilise language like 'sexual violence' to refer to a multitude of behaviours, but specific labelling is crucial to ensure perpetrators are punished appropriately and that we can distinctly categorise different acts.