Acts Amendment (Sexual Assaults) Act 1985 (WA)

WESTERN AUSTRALIA.

ACTS AMENDMENT

(SEXUAL ASSAULTS).

No. 74 of 1985.

AN ACT to reform the law concerning sexual assaults and for that purpose and for related purposes to amend The Criminal Code, the Evidence Act 1906, the Child Welfare Act 1947 and the District Court of Western Australia Act 1969.

[Assented to 20 November 1985.]

BE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and the Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:—

PART I.-PRELIMINARY.

1. This Act may be cited as the Acts Amendment Short title.

(Sexual Assaults) Act 1985.

No. 74.]

Acts Amendment (Sexual

[1985.

Assaults).

Commenoe-

ment.

2. This Act shall come into operation on a day to be fixed by proclamation.

PART II.-THE CRIMINAL CODE.

Interpreta-

In this Part, "the Code" means the Criminal Code set out in the Schedule to the Criminal Code Act 1913 appearing in Appendix B to the Criminal Code Act Compilation Act 1913.

tion.

Section 29

amended.

Section 29 of the Code is amended by deleting "A male person under the age of fourteen years is presumed to be incapable of having carnal knowledge.".

Section 205A

repealed.

Section 205A of the Code is repealed.

Section 2

amende

d	6. Section 206 of the Code is amended in sub- section (1) by deleting ", one hundred and eighty- nine, three hundred and twenty-six, three hundred and twenty-seven, or three hundred and twenty- eight" and substituting the following-

" or one hundred and eighty-nine ".

Sections 319

and 315	7.	Sections 314 and 315 of the Code are repealed.
repealed.
Chapter
XXXIA	8.	After section 324A of the Code, the following

inserted.

Chapter is inserted

CHAPTER XXXIA.-SEXUAL ASSAULTS.

Indecent

assault.

324B. Any person who unlawfully and

indecently assaults another person is guilty

of a misdemeanour and is liable to imprison-

ment for 4 years.

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Acts Amendment (Sexual

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Assaults).

Aggravated

324C. Any person who unlawfully and

Indecent

indecently assaults another person in	assault.
circumstances of aggravation is guilty of a misdemeanour and is liable to imprisonment for 6 years.
Sexual
324D. Any person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years.	assault

324E.

Any person who sexually penetrates Aggravated

another person without the consent of that assault.

person and in circumstances of aggravation

is guilty of a crime and is liable to imprison-

ment for 20 years.

For the purposes of this Code, "to :=1113f sexually penetrate" means—

penetrate.

324F.

(a)	to penetrate the vagina of any person or the anus of any person with

(i) any part of the body of another person; or

(ii)an object manipulated by

another person,

except where the penetration is carried out for proper medical purposes;

(b)

to manipulate any part of the body of another person so as to cause penetration of the vagina or anus of the offender by part of the other person's body;

(c)

of a person into the mouth of another

person;

to introduce any part of the penis

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Acts Amendment ( Sexual

[1985.

Assaults).

(d) to engage in cunnilingus; or

(e)	to continue sexual penetration as defined in paragraph (a), (b), (c) or (d).

Meaning of

consent.	324G. (1) For the purposes of this Chapter, "consent" means a consent freely and voluntarily given and, without in any way affecting or limiting the meaning otherwise attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means.
(2) A failure to offer physical resistance to a sexual assault does not of itself constitute consent to a sexual assault.
Nature of

circum-	32411. For the purposes of sections 324C
stances of

aggravation.

and 324E, "circumstances of aggravation"

means circumstances in which

(a)	at or immediately before or immedi- ately after the commission of the offence, the offender does bodily harm to any person;
(b)	the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed;
(c)	at or immediately before or immedi- ately after the commission of the offence, the offender does an act which is likely seriously and sub- stantially to degrade or humiliate the victim;
(d)	the offender is in company with

another person or persons; or

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Acts Amendment (Sexual

[No. 74.

Assaults).

(e)	the person assaulted or sexually penetrated is under the age of 16 years or is of or above the age of 60 years.

3241. Upon a charge of any of the offences provided for in this Chapter, the wife or !.P.2:

i'nTeetent

LmCopellable

husband of the accused person is a competent

and compellable witness. ".

The heading to Chapter XXXII of the Code Heading t°

Chapter

is amended by deleting "ASSAULTS ON amended

.FEMALES:".

10. Sections 325, 326, 327 and 328 of the Code Wgisaird5'

are repealed.	32irepealed
Section 398

11.

Section 398 of the Code is amended by

amended.

deleting paragraph (d) and substituting the

following paragraph

CI (d) An attempt to commit the crime of

sexual assault or aggravated sexual assault or the misdemeanour of indecent assault or aggravated indecent assault; or ".

Section 596

12.

Section 596 of the Code is amended

amended.

(a)	by deleting "rape" and substituting the following--

sexual assault or aggravated sexual

assault ";

(b)	by deleting "he" in both places where it occurs and substituting in each place the following-

" that person

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Acts Amendment (Sexual

[1985.

Assaults).

Sections

596AA,	13. After section 596A of the Code, the following
596AB, 596AC

and 596AD	sections are inserted-
inserted.
Charge of

aggravated	596AA. Upon an indictment charging a person with the crime of aggravated sexual assault, that person may be convicted of any of the offences of sexual assault, aggravated indecent assault or indecent assault if any such offence is established by the evidence.
sexual
assault.
Charge of
sexual	596AB. Upon an indictment charging a person with the crime of sexual assault, that person may be convicted of any of the offences of aggravated indecent assault or indecent assault if any such offence is established by the evidence.
assault.
Charge of
aggravated	596AC. Upon an indictment charging a person with the crime of aggravated indecent assault, that person may be convicted of the offence of indecent assault if that offence is established by the evidence.
indecent
assault.
Charge of
aggravated	596AD. Upon an indictment charging a sexual assault or the crime of sexual assault, that person may be convicted of an offence contrary to section 181 or 182 if any such offence is established by the evidence. ".
sexual
assault by	male person with the crime of aggravated
male person.

PART III.-EVIDENCE ACT 1906.

Principal

Act.	14. In this Part, the Evidence Act 1906 is referred
Reprinted as

approved

to as the principal Act.

28 January

1981 and

amended by

Acts Nos. 10

and 108 of

1985.]

Acts Amendment (Sexual

[No. 74.

Assaults).

Sections 36A

15. Sections 36A and 36B of the principal Act are repealed and the following sections are substituted

and 36B

repealed and

sections 36A

to 36HE

substituted.

i t	Interpreta-

36A. (1) In this section and in sections

Eon.

36B, 36BA, 36BC, 36BD, 36BE and 36C

"complainant" in relation to proceedings for a sexual assault offence means a person upon or in respect of whom it is alleged that a sexual assault offence was committed, attempted or proposed;

"defendant" in relation to a hearing or trial, means any defendant at the hearing or trial whether or not that defendant is charged with a sexual assault offence;

"sexual assault offence" means the

offence of

(a)	indecent assault contrary to section 324B of The Criminal Code;
(b)	indecent assault in circum- stances of aggravation con- trary to section 324C of The Criminal Code;
(c)	sexual assault contrary to section 324D of The Criminal Code;
(d)	aggravated sexual assault contrary to section 324E of The Criminal Code;
(e)	attempting to commit any of the offences referred to in paragraphs (a) to (d);
(f)	conspiracy to commit any of the offences referred to in

paragraphs (a) to (d); and

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Acts Amendment (Sexual

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Assaults).

counselling or procuring the

(g)	commission of any of the offences referred to in para- graphs (a) to (d).

(2) In this section and in sections 36B, 36BA and 36BC, proceedings for a sexual assault offence means proceedings in which a person stands charged with a sexual assault offence whether the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable on the charge to be found guilty of any other offence.

Evidence

as to sexual	36B. In proceedings for a sexual assault offence, evidence relating to the sexual reputation of the complainant shall not be adduced or elicited by or on behalf of a defendant.
reputation of
complainant.
Evidence
as to sexual	36BA. In proceedings for a sexual assault offence, evidence relating to the disposition of the complainant in sexual matters shall not be adduced or elicited by or on behalf of a defendant.
disposition of
complainant.
Evidence
as to sexual	36BC. (1) In proceedings for a sexual assault offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of a defendant unless leave of the court has first been obtained on application made in the absence of the jury (if any).
experience of
complainant.
(2) The court shall not grant leave under subsection (1) unless satisfied that

(a)	what is sought to be adduced or elicited has substantial relevance to

the facts in issue; and

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Acts Amendment (Sexual

[No. 74.

Assaults).

(b)	the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humi- liation or embarrassment which the complainant might suffer as a result of its admission.

36BD. Where on the trial of a person for you IfttY a sexual assault offence or an offence under 1,0e,Igint.

Chapter XXII of The Criminal Code evidence

is given or a question is asked of a witness

which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in making any such complaint, the judge shall

(a)	give a warning to the jury to the effect that absence of complaint or delay in complaining does not neces- sarily indicate that the allegation that the offence was committed is false; and
(b)	inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence.

No req-

uire

36BE. (1) On the trial of a person for a mentor

warning as to

sexual assault offence or an offence under conviction on	uncor-
Chapter XXII of The Criminal Code—	roborated evidence.

(a) the judge is not required by any rule of law or practice to give in relation to any offence of which the person is liable to be convicted on the charge for the offence' a warning to the jury to the effect that it is unsafe to

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Acts Amendment (Sexual

[1985.

Assaults).

convict the person on the uncor- roborated evidence of the person upon whom the offence is alleged to have been committed; and

(b)	the judge shall not give a warning to the jury of the kind described in para- graph (a) unless satisfied that such a warning is justified in the circum- stances.

(2) Nothing in subsection (1) affects the operation of any law that provides that a person cannot be convicted of an offence upon the uncorroborated testimony of one witness or upon the evidence of a child whose evidence is admitted under section 101. ".

Section 38C

amended.

16. Section 36C of the principal Act is amended

(a)	by deleting "rape offence" wherever it occurs and substituting in each case the following-

" sexual assault offence ";

(b)	in subsection (3), by deleting "he" wherever it occurs and substituting the following-

" the person "; and

(c)	in subsection (4), by deleting "woman" in the definition of "complainant" and sub- stituting the following-

" person ".

Second

Schedule

17. The Second Schedule to the principal Act is

amended.

amended in PART I by deleting "and Chapter

XXXII" and substituting the following-

" and Chapters XXXIA and XXXII "

1985.]

Acts Amendment ( Sexual

[No. 74.

Assaults).

PART IV.—CHILD WELFARE ACT 1947.

Principal Act.

18.

In this Part the Child Welfare Act 1947 is referred to as the principal Act.	Reprinted as
approved30 August
1984 and amended by Acts Nos. 52, 61 and 121 of 1984.
Section 126

19.

Section 126 of the principal Act is amended

in subsection (3) by deleting "or XXXII or section

314 or 315" and substituting the following-

amended

CC , XXXIA or XXXII ".

Fourth

20.

The Fourth Schedule to the principal Act is amended in Part I by deleting-	Schedule
amended.

326 Rape.

327 Attempt to rape. "

and substituting the following-

- 324D

Sexual assault.

324E	Aggravated sexual assault. ".

PART V.—DISTRICT COURT OF WESTERN AUSTRALIA

ACT 1969.

21. Section 42 of The District Court of Western aSm

ecetniogiect2

Australia Act 1969 is amended by inserting after Reprinted as	approved
subsection (2) the following subsection—	5 September
1980 and
amended by

(2a) The Court has no jurisdiction to try MIK???

an accused person charged with an offence 1a9n3g 1a2121dor

against section 324D or 324E of The Criminal 19"

Code. ".