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Contents (1900 - 40)
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Crimes Act 1900 No 40
Current version for 13 September 2019 to date (accessed 20 September 2019 at 20:18)
Part 3 Division 10
Division 10 Sexual offences against adults and children
Subdivision 1 Interpretation
61A–61G   (Repealed)
61H   Definitions
(1)  In this Division—
cognitive impairment—see section 61HD.
sexual act—see section 61HC.
sexual intercourse—see section 61HA.
sexual touching—see section 61HB.
(1A)    (Repealed)
(2)  For the purposes of this Division, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person.
(3)  For the purposes of this Act, a person who incites another person to carry out sexual touching or a sexual act, as referred to in a provision of Subdivision 3, 4, 6, 7 or 11, is taken to commit an offence on the other person.
61HA   Meaning of “sexual intercourse”
For the purposes of this Division, sexual intercourse means—
(a)  sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by—
(i)  any part of the body of another person, or
(ii)  any object manipulated by another person,
except where the penetration is carried out for proper medical purposes, or
(b)  sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
(c)  cunnilingus, or
(d)  the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
61HB   Meaning of “sexual touching”
(1)  For the purposes of this Division, sexual touching means a person touching another person—
(a)  with any part of the body or with anything else, or
(b)  through anything, including anything worn by the person doing the touching or by the person being touched,
in circumstances where a reasonable person would consider the touching to be sexual.
(2)  The matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include—
(a)  whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or
(b)  whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or
(c)  whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.
(3)  Touching done for genuine medical or hygienic purposes is not sexual touching.
61HC   Meaning of “sexual act”
(1)  For the purposes of this Division, sexual act means an act (other than sexual touching) carried out in circumstances where a reasonable person would consider the act to be sexual.
(2)  The matters to be taken into account in deciding whether a reasonable person would consider an act to be sexual include—
(a)  whether the area of the body involved in the act is a person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or
(b)  whether the person carrying out the act does so for the purpose of obtaining sexual arousal or sexual gratification, or
(c)  whether any other aspect of the act (including the circumstances in which it is carried out) makes it sexual.
(3)  An act carried out for genuine medical or hygienic purposes is not a sexual act.
61HD   Meaning of “cognitive impairment”
For the purposes of this Division, a person has a cognitive impairment if the person has—
(a)  an intellectual disability, or
(b)  a developmental disorder (including an autistic spectrum disorder), or
(c)  a neurological disorder, or
(d)  dementia, or
(e)  a severe mental illness, or
(f)  a brain injury,
that results in the person requiring supervision or social habilitation in connection with daily life activities.
61HE   Consent in relation to sexual offences
(1) Offences to which section applies This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF.
(2) Meaning of “consent” A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity.
(3) Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if—
(a)  the person knows that the alleged victim does not consent to the sexual activity, or
(b)  the person is reckless as to whether the alleged victim consents to the sexual activity, or
(c)  the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.
(4)  For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case—
(a)  including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but
(b)  not including any self-induced intoxication of the person.
(5) Negation of consent A person does not consent to a sexual activity—
(a)  if the person does not have the capacity to consent to the sexual activity, including because of age or cognitive incapacity, or
(b)  if the person does not have the opportunity to consent to the sexual activity because the person is unconscious or asleep, or
(c)  if the person consents to the sexual activity because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
(d)  if the person consents to the sexual activity because the person is unlawfully detained.
(6)  A person who consents to a sexual activity with or from another person under any of the following mistaken beliefs does not consent to the sexual activity—
(a)  a mistaken belief as to the identity of the other person,
(b)  a mistaken belief that the other person is married to the person,
(c)  a mistaken belief that the sexual activity is for health or hygienic purposes,
(d)  any other mistaken belief about the nature of the activity induced by fraudulent means.
(7)  For the purposes of subsection (3), the other person knows that the person does not consent to the sexual activity if the other person knows the person consents to the sexual activity under such a mistaken belief.
(8)  The grounds on which it may be established that a person does not consent to a sexual activity include—
(a)  if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug, or
(b)  if the person consents to the sexual activity because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
(c)  if the person consents to the sexual activity because of the abuse of a position of authority or trust.
(9)  A person who does not offer actual physical resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity.
(10)  This section does not limit the grounds on which it may be established that a person does not consent to a sexual activity.
(11)  In this section—
sexual activity means sexual intercourse, sexual touching or a sexual act.
Subdivision 2 Sexual assault and assault with intent to have sexual intercourse
61I   Sexual assault
Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.
61J   Aggravated sexual assault
(1)  Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.
(2)  In this section, circumstances of aggravation means circumstances in which—
(a)  at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
(b)  at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
(b1)  at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict grievous bodily harm or wounding on the alleged victim or any other person who is present or nearby, or
(c)  the alleged offender is in the company of another person or persons, or
(d)  the alleged victim is under the age of 16 years, or
(e)  the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(f)  the alleged victim has a serious physical disability, or
(g)  the alleged victim has a cognitive impairment, or
(h)  the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
(i)  the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.
(3)  In this section, building has the same meaning as it does in Division 4 of Part 4.
61JA   Aggravated sexual assault in company
(1)  A person—
(a)  who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse, and
(b)  who is in the company of another person or persons, and
(c)  who—
(i)  at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
(ii)  at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
(iii)  deprives the alleged victim of his or her liberty for a period before or after the commission of the offence,
is liable to imprisonment for life.
(2)  A person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the person’s natural life.
(3)  Nothing in this section affects the operation of section 21 of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life).
(4)  Nothing in this section affects the prerogative of mercy.
61K   Assault with intent to have sexual intercourse
Any person who, with intent to have sexual intercourse with another person—
(a)  intentionally or recklessly inflicts actual bodily harm on the other person or a third person who is present or nearby, or
(b)  threatens to inflict actual bodily harm on the other person or a third person who is present or nearby by means of an offensive weapon or instrument,
is liable to imprisonment for 20 years.
61KA   Offender married to victim
The fact that a person is married to a person—
(a)  upon whom an offence under section 61I, 61J, 61JA or 61K is alleged to have been committed is no bar to the firstmentioned person being convicted of the offence, or
(b)  upon whom an offence under any of those sections is alleged to have been attempted is no bar to the firstmentioned person being convicted of the attempt.
61KB   Circumstances of certain sexual offences to be considered in passing sentence
Where a person is convicted of—
(a)  both an offence under section 61I and an offence under section 61K, or
(b)  both an offence under section 61J and an offence under section 61K, or
(c)  both an offence under section 61JA and an offence under section 61K,
whether at the same time or at different times, the Judge passing sentence on the person in respect of the two convictions or the later of the two convictions is required, if it appears that the two offences arose substantially out of the one set of circumstances, to take that fact into account in passing sentence.
Subdivision 3 Sexual touching
61KC   Sexual touching
Any person (the alleged offender) who without the consent of another person (the alleged victim) and knowing that the alleged victim does not consent intentionally—
(a)  sexually touches the alleged victim, or
(b)  incites the alleged victim to sexually touch the alleged offender, or
(c)  incites a third person to sexually touch the alleged victim, or
(d)  incites the alleged victim to sexually touch a third person,
is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
61KD   Aggravated sexual touching
(1)  Any person (the alleged offender) who without the consent of another person (the alleged victim) and knowing that the alleged victim does not consent and in circumstances of aggravation intentionally—
(a)  sexually touches the alleged victim, or
(b)  incites the alleged victim to sexually touch the alleged offender, or
(c)  incites a third person to sexually touch the alleged victim, or
(d)  incites the alleged victim to sexually touch a third person,
is guilty of an offence.
Maximum penalty: Imprisonment for 7 years.
(2)  In this section, circumstances of aggravation means circumstances in which—
(a)  the alleged offender is in the company of another person or persons, or
(b)  the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(c)  the alleged victim has a serious physical disability, or
(d)  the alleged victim has a cognitive impairment.
Subdivision 4 Sexual act
61KE   Sexual act
Any person (the alleged offender) who without the consent of another person (the alleged victim) and knowing that the alleged victim does not consent intentionally—
(a)  carries out a sexual act with or towards the alleged victim, or
(b)  incites the alleged victim to carry out a sexual act with or towards the alleged offender, or
(c)  incites a third person to carry out a sexual act with or towards the alleged victim, or
(d)  incites the alleged victim to carry out a sexual act with or towards a third person,
is guilty of an offence.
Maximum penalty: Imprisonment for 18 months.
61KF   Aggravated sexual act
(1)  Any person (the alleged offender) who without the consent of another person (the alleged victim) and knowing that the alleged victim does not consent and in circumstances of aggravation intentionally—
(a)  carries out a sexual act with or towards the alleged victim, or
(b)  incites the alleged victim to carry out a sexual act with or towards the alleged offender, or
(c)  incites a third person to carry out a sexual act with or towards the alleged victim, or
(d)  incites the alleged victim to carry out a sexual act with or towards a third person,
is guilty of an offence.
Maximum penalty: Imprisonment for 3 years.
(2)  In this section, circumstances of aggravation means circumstances in which—
(a)  the alleged offender is in the company of another person or persons, or
(b)  the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(c)  the alleged victim has a serious physical disability, or
(d)  the alleged victim has a cognitive impairment.
61L–61P   (Repealed)
61Q   
(Renumbered as section 80AB)
61R   (Repealed)
61S   
(Renumbered as section 80AC)
61T, 61U   
(Renumbered as sections 61KA, 61KB)
62   (Repealed)
63   
(Renumbered as section 80AD)
64   
(Renumbered as clause 51 of Schedule 11)
65–66   (Repealed)
Subdivision 5 Children—sexual assault
66A   Sexual intercourse—child under 10
(1)  Any person who has sexual intercourse with a child who is under the age of 10 years is guilty of an offence.
Maximum penalty: imprisonment for life.
(2)  A person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the person’s natural life.
(3)  Nothing in this section affects the operation of section 21 of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life).
(4)  Nothing in this section affects the prerogative of mercy.
66B   Attempting, or assaulting with intent, to have sexual intercourse with child under 10
Any person who attempts to have sexual intercourse with a child who is under the age of 10 years, or assaults a child who is under the age of 10 years with intent to have sexual intercourse, shall be liable to imprisonment for 25 years.
66C   Sexual intercourse—child between 10 and 16
(1) Child between 10 and 14 Any person who has sexual intercourse with a child who is of or above the age of 10 years and under the age of 14 years is liable to imprisonment for 16 years.
(2) Child between 10 and 14—aggravated offence Any person who has sexual intercourse with a child who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to imprisonment for 20 years.
(3) Child between 14 and 16 Any person who has sexual intercourse with a child who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years.
(4) Child between 14 and 16—aggravated offence Any person who has sexual intercourse with a child who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years.
(5)  In this section, circumstances of aggravation means circumstances in which—
(a)  at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
(b)  at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
(c)  the alleged offender is in the company of another person or persons, or
(d)  the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(e)  the alleged victim has a serious physical disability, or
(f)  the alleged victim has a cognitive impairment, or
(g)  the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or
(h)  the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or
(i)  the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence.
66D   Assault with intent to have sexual intercourse—child between 10 and 16
Any person who assaults a child who is of or above the age of 10 years and under the age of 16 years with intent to commit an offence under section 66C on the child is liable to the penalty provided for the commission of that offence.
Subdivision 6 Children—sexual touching
66DA   Sexual touching—child under 10
Any person who intentionally—
(a)  sexually touches a child who is under the age of 10 years, or
(b)  incites a child who is under the age of 10 years to sexually touch the person, or
(c)  incites a child who is under the age of 10 years to sexually touch another person, or
(d)  incites another person to sexually touch a child who is under the age of 10 years,
is guilty of an offence.
Maximum penalty: Imprisonment for 16 years.
66DB   Sexual touching—child between 10 and 16
Any person who intentionally—
(a)  sexually touches a child who is of or above the age of 10 years and under the age of 16 years, or
(b)  incites a child who is of or above the age of 10 years and under the age of 16 years to sexually touch the person, or
(c)  incites a child who is of or above the age of 10 years and under the age of 16 years to sexually touch another person, or
(d)  incites another person to sexually touch a child who is of or above the age of 10 years and under the age of 16 years,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
Subdivision 7 Children—sexual act
66DC   Sexual act—child under 10
Any person who intentionally—
(a)  carries out a sexual act with or towards a child who is under the age of 10 years, or
(b)  incites a child who is under the age of 10 years to carry out a sexual act with or towards the person, or
(c)  incites a child who is under the age of 10 years to carry out a sexual act with or towards another person, or
(d)  incites another person to carry out a sexual act with or towards a child who is under the age of 10 years,
is guilty of an offence.
Maximum penalty: Imprisonment for 7 years.
66DD   Sexual act—child between 10 and 16
Any person who intentionally—
(a)  carries out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years, or
(b)  incites a child who is of or above the age of 10 years and under the age of 16 years to carry out a sexual act with or towards the person, or
(c)  incites a child who is of or above the age of 10 years and under the age of 16 years to carry out a sexual act with or towards another person, or
(d)  incites another person to carry out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years,
is guilty of an offence.
Maximum penalty: Imprisonment for 2 years.
66DE   Aggravated sexual act—child between 10 and 16
(1)  Any person who in circumstances of aggravation intentionally—
(a)  carries out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years, or
(b)  incites a child who is of or above the age of 10 years and under the age of 16 years to carry out a sexual act with or towards the person, or
(c)  incites a child who is of or above the age of 10 years and under the age of 16 years to carry out a sexual act with or towards another person, or
(d)  incites another person to carry out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years,
is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(2)  In this section, circumstances of aggravation means circumstances in which—
(a)  at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
(b)  at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
(c)  the alleged offender is in the company of another person or persons, or
(d)  the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(e)  the alleged victim has a serious physical disability, or
(f)  the alleged victim has a cognitive impairment, or
(g)  the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or
(h)  the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or
(i)  the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence.
66DF   Sexual act for production of child abuse material—child under 16
Any person who intentionally—
(a)  carries out a sexual act with or towards a child who is under the age of 16 years, or
(b)  incites a child who is under the age of 16 years to carry out a sexual act with or towards the person, or
(c)  incites a child who is under the age of 16 years to carry out a sexual act with or towards another person, or
(d)  incites another person to carry out a sexual act with or towards a child who is under the age of 16 years,
and who knows that the sexual act is being filmed for the purposes of the production of child abuse material, is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
66E   (Repealed)
Subdivision 8 Children—persistent sexual abuse
66EA   Persistent sexual abuse of a child
(1)  An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)  An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.
(3)  It is immaterial that any of those unlawful sexual acts occurred outside New South Wales, so long as at least one of the unlawful sexual acts occurred in New South Wales.
(4)  In proceedings for an offence under this section, the prosecution—
(a)  is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and
(b)  is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
(5)  In order for the accused to be convicted of an offence under this section—
(a)  the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, and
(b)  the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, and
(c)  the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
(6)  In proceedings for an offence under this section, the judge must inform the jury of the requirements of subsection (5).
(7)  This section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence, if the acts engaged in by the accused were unlawful sexual acts during the period in which the relationship existed.
(8)  A court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed.
(9)  A person who has been convicted or acquitted of an unlawful sexual act in relation to a child cannot be convicted of an offence under this section in relation to the same child if the unlawful sexual act of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.
(10)  A person who has been convicted or acquitted of an offence under this section for having an unlawful sexual relationship with a child cannot be convicted of an unlawful sexual act in relation to the same child if the occasion on which the unlawful sexual act is alleged to have occurred is during the period over which the unlawful sexual relationship was alleged to have existed. This subsection does not prevent an alternative verdict under subsection (13).
(11)  A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an offence under this section of having an unlawful sexual relationship with the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence.
(12)  For the purposes of subsections (9)–(11), a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.
(13)  If on the trial of a person charged with an offence under this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence under this section, committed an unlawful sexual act, the jury may acquit the person of the offence charged and find the person guilty of that unlawful sexual act. The person is liable to punishment accordingly.
(14)  Proceedings for an offence under this section may only be instituted by or with the approval of the Director of Public Prosecutions.
(15)  In this section—
adult means a person who is of or above the age of 18 years.
child means a person who is under the age of 16 years.
predecessor offence means this section before its substitution by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.
relevant amendments means the substitution of this section by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.
unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), any of the following offences—
(a)  an offence under section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66F or 80A,
(b)  an offence under a provision of this Act set out in Column 1 of Schedule 1A,
(c)  an offence of attempting to commit an offence referred to in paragraph (a) or (b),
(d)  an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(c),
(e)  an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraphs (a)–(d).
Subdivision 9 Children—procurement and grooming
66EB   Procuring or grooming child under 16 for unlawful sexual activity
(1) Definitions In this section—
adult person means a person who is of or over the age of 18 years.
child means a person who is under the age of 16 years.
conduct includes—
(a)  communicating in person or by telephone, the internet or other means, or
(b)  providing any computer image, video or publication.
unlawful sexual activity means an act that constitutes an offence under this Division or Division 10A, 15 or 15A (or, in the case of an act occurring outside this State, that would constitute such an offence if it occurred in this State).
(2) Procuring children An adult person who intentionally procures a child for unlawful sexual activity with that or any other person is guilty of an offence.
Maximum penalty—
(a)  in the case of a child who is under the age of 14 years—imprisonment for 15 years, or
(b)  in any other case—imprisonment for 12 years.
(2A) Meeting child following grooming An adult person—
(a)  who intentionally meets a child, or travels with the intention of meeting a child, whom the adult person has groomed for sexual purposes, and
(b)  who does so with the intention of procuring the child for unlawful sexual activity with that adult person or any other person,
is guilty of an offence.
Maximum penalty—
(a)  in the case of a child who is under the age of 14 years—imprisonment for 15 years, or
(b)  in any other case—imprisonment for 12 years.
(2B)  For the purposes of subsection (2A), a child has been groomed for sexual purposes by an adult person if, on one or more previous occasions, the adult person has engaged in conduct that exposed the child to indecent material.
(3) Grooming children An adult person—
(a)  who engages in any conduct that exposes a child to indecent material or provides a child with an intoxicating substance or with any financial or other material benefit, and
(b)  who does so with the intention of making it easier to procure the child for unlawful sexual activity with that or any other person,
is guilty of an offence.
Maximum penalty—
(a)  in the case of a child who is under the age of 14 years—imprisonment for 12 years, or
(b)  in any other case—imprisonment for 10 years.
(4) Unlawful sexual activity need not be particularised In any proceedings for an offence against this section, it is necessary to prove that the child was or was to be procured for unlawful sexual activity, but it is not necessary to specify or to prove any particular unlawful sexual activity.
(5) Fictitious children A reference in this section to a child includes a reference to a person who pretends to be a child if the accused believed that the person was a child. In that case, a reference in this section—
(a)  to unlawful sexual activity includes a reference to anything that would be unlawful sexual activity if the person were a child, and
(b)  to the age of the child is a reference to the age that the accused believed the person to be.
(6) Charge for aggravated offence The higher maximum penalty under subsection (2), (2A) or (3) in the case of a child under the age of 14 years does not apply unless the age of the child is set out in the charge for the offence.
(7) Defence It is a defence in proceedings for an offence against this section if the accused reasonably believed that the other person was not a child.
(8) Alternative verdict If on the trial of a person charged with an offence against subsection (2) or (2A) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (3), the jury may acquit the person of the offence charged and find the person guilty of an offence against subsection (3). The person is liable to punishment accordingly.
66EC   Grooming a person for unlawful sexual activity with a child under the person’s authority
(1)  In this section—
adult person means a person who is of or above the age of 18 years.
child means a person who is under the age of 16 years.
unlawful sexual activity means an act that constitutes an offence under this Division or Division 10A, 15 or 15A (or, in the case of an act occurring outside this State, that would constitute such an offence if it occurred in this State).
(2)  An adult person—
(a)  who provides a person (other than a child) with any financial or other material benefit, and
(b)  who does so with the intention of making it easier to procure a child who is under the authority of the person for unlawful sexual activity with the adult person or any other person,
is guilty of an offence.
Maximum penalty—
(a)  in the case of a child who is under the age of 14 years—imprisonment for 6 years, or
(b)  in any other case—imprisonment for 5 years.
(3)  Proceedings for an offence under this section may only be instituted by or with the approval of the Director of Public Prosecutions.
Subdivision 10 Sexual offences—cognitive impairment
66F   Sexual offences—cognitive impairment
(1) Meaning of “person responsible for care” For the purposes of this section, a person is responsible for the care of a person who has a cognitive impairment if the person provides care to that person—
(a)  at a facility at which persons with a cognitive impairment are detained, reside or attend, or
(b)  at the home of that person in the course of a program under which any such facility or other government or community organisation provides care to persons with a cognitive impairment.
The care of a person with a cognitive impairment includes voluntary care, health professional care, education, home care and supervision.
(2) Sexual intercourse: person responsible for care A person—
(a)  who has sexual intercourse with a person who has a cognitive impairment, and
(b)  who is responsible for the care of that person (whether generally or at the time of the sexual intercourse),
is guilty of an offence.
Maximum penalty: imprisonment for 10 years.
(3) Sexual intercourse: taking advantage of impairment A person who has sexual intercourse with a person who has a cognitive impairment, with the intention of taking advantage of that person’s cognitive impairment, is guilty of an offence.
Maximum penalty: imprisonment for 8 years.
(4)    (Repealed)
(5) Consent not a defence for sexual intercourse The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under subsection (2) or (3) (or under section 344A in connection with such an offence).
(6) Consent not a defence for sexual touching or sexual act The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under section 61KC, 61KD, 61KE or 61KF (or under section 344A in connection with such an offence) if—
(a)  the accused was responsible for the care of that person (whether generally or at the time of the conduct constituting the offence), or
(b)  the accused engaged in the conduct constituting the offence with the intention of taking advantage of that person’s cognitive impairment.
(7) Defences It is a defence to a charge for an offence under subsection (2) or (3) (or under section 344A in connection with such an offence) or an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection—
(a)  if, at the time of the conduct constituting the offence—
(i)  the accused did not know the person to whom the charge relates had a cognitive impairment, or
(ii)  the accused was married to the person to whom the charge relates or was the de facto partner of that person, or
(b)  if the act constituting the offence was carried out for any proper medical or hygienic purpose.
(8) Approval of Attorney General for prosecution A prosecution for any of the following offences may not be commenced without the approval of the Attorney General—
(a)  an offence under subsection (2) or (3) (or under section 344A in connection with such an offence),
(b)  an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection.
67, 68   (Repealed)
69   
(Renumbered as clause 52 of Schedule 11)
70   
(Renumbered as clause 53 of Schedule 11)
71–72A   (Repealed)
Subdivision 11 Sexual offences—young person under special care
72B   Definitions
In this Subdivision—
authorised carer has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998.
member of the teaching staff of a school means—
(a)  a teacher at the school, or
(b)  the principal or a deputy principal at the school, or
(c)  any other person employed at the school who has students at the school under his or her care or authority.
young person means a person who is of or above the age of 16 years and under the age of 18 years.
73   Sexual intercourse—young person between 16 and 18 under special care
(1)  Any person who has sexual intercourse with a young person who—
(a)  is under his or her special care, and
(b)  is of or above the age of 16 years and under the age of 17 years,
is liable to imprisonment for 8 years.
(2)  Any person who has sexual intercourse with a young person who—
(a)  is under his or her special care, and
(b)  is of or above the age of 17 years and under the age of 18 years,
is liable to imprisonment for 4 years.
(3)  For the purposes of this section, a young person (the victim) is under the special care of another person (the offender) if, and only if—
(a)  the offender is the step-parent, guardian or authorised carer of the victim or the de facto partner of a parent, guardian or authorised carer of the victim, or
(b)  the offender is a member of the teaching staff of the school at which the victim is a student, or
(c)  the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or
(d)  the offender is a custodial officer of an institution of which the victim is an inmate, or
(e)  the offender is a health professional and the victim is a patient of the health professional.
(4)    (Repealed)
(5)  A person does not commit an offence under this section if the person and the young person to whom the charge relates were, at the time the offence is alleged to have been committed, married to each other.
(6)    (Repealed)
73A   Sexual touching—young person between 16 and 18 under special care
(1)  Any person who intentionally—
(a)  sexually touches a young person under the person’s special care, or
(b)  incites a young person under the person’s special care to sexually touch the person, or
(c)  incites a young person under the person’s special care to sexually touch another person, or
(d)  incites another person to sexually touch a young person under the first person’s special care,
is guilty of an offence.
Maximum penalty—
(a)  in the case of a young person who is of or above the age of 16 years and under the age of 17 years—imprisonment for 4 years, or
(b)  in the case of a young person who is of or above the age of 17 years and under the age of 18 years—imprisonment for 2 years.
(2)  A person does not commit an offence under this section if the person and the young person to whom the charge relates were, at the time the offence is alleged to have been committed, married to each other.
(3)  For the purposes of this section, a young person (the victim) is under the special care of another person (the offender) if, and only if—
(a)  the offender is the parent, grandparent, step-parent, guardian or authorised carer of the victim or the de facto partner of a parent, guardian or authorised carer of the victim, or
(b)  the offender is a member of the teaching staff of the school at which the victim is a student, or
(c)  the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or
(d)  the offender is a custodial officer of an institution of which the victim is an inmate, or
(e)  the offender is a health professional and the victim is a patient of the health professional.
74–76A   (Repealed)
77   
(Renumbered as section 80AE)
77A, 78   (Repealed)
Subdivision 12 Incest
78A   Incest
(1)  Any person who has sexual intercourse with a close family member who is of or above the age of 16 years is liable to imprisonment for 8 years.
(2)  For the purposes of this section, a close family member is a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent or grandchild, being such a family member from birth.
78B   Incest attempts
Any person who attempts to commit an offence under section 78A is liable to imprisonment for two years.
78C   Defences
(1)  It shall be a sufficient defence to a charge under section 78A or section 78B that the person charged did not know that the person with whom the offence is alleged to have been committed was related to him or her, as alleged.
(2)  It shall be no defence to a charge under section 78A or section 78B that the person with whom the offence is alleged to have been committed consented thereto.
78D   (Repealed)
78E   
(Renumbered as clause 54 of Schedule 11)
78F   Sanction of Attorney-General
(1)  No prosecution for an offence under sections 78A or 78B shall be commenced without the sanction of the Attorney-General.
(2)    (Repealed)
78G–78S   (Repealed)
78T   
(Renumbered as clause 55 of Schedule 11)
Subdivision 13 Bestiality
79   Bestiality
Any person who commits an act of bestiality with any animal shall be liable to imprisonment for fourteen years.
80   Attempt to commit bestiality
Any person who attempts to commit an act of bestiality with any animal shall be liable to imprisonment for five years.
Subdivision 14 Sexual assault by forced self-manipulation
80A   Sexual assault by forced self-manipulation
(1)  In this section—
circumstances of aggravation means circumstances in which—
(a)  at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
(b)  at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
(c)  the alleged offender is in the company of another person or persons, or
(d)  the alleged victim is under the age of 16 years, or
(e)  the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(f)  the alleged victim has a serious physical disability, or
(g)  the alleged victim has a cognitive impairment.
self-manipulation means the penetration of the vagina (including a surgically constructed vagina) or anus of any person by an object manipulated by the person, except where the penetration is carried out for proper medical or other proper purposes.
threat means—
(a)  a threat of physical force, or
(b)  intimidatory or coercive conduct, or other threat, which does not involve a threat of physical force.
(2)  Any person who compels another person to engage in self-manipulation, by means of a threat that the other person could not reasonably be expected to resist, is liable to imprisonment for 14 years.
(2A)  Any person who compels another person to engage in self-manipulation—
(a)  by means of a threat that the other person could not reasonably be expected to resist, and
(b)  in circumstances of aggravation,
is liable to imprisonment for 20 years.
(3)  A person does not commit an offence under this section unless the person knows that the other person engages in the self-manipulation as a result of the threat.
Subdivision 15 Miscellaneous
80AA   Referral to child protection agency
On conviction of a person for an offence under this Division, the court may refer the matter to an appropriate child protection agency if the person against whom or with whom the offence was committed is under the authority of the offender.
80AB   Alternative verdicts
(1) Question of aggravation If on the trial of a person for an offence under section 61J, 61KD or 61KF the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I, 61KC or 61KE, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.
(1A) Question of aggravation in company If on the trial of a person for an offence under section 61JA the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I or 61J, it may find the person not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.
(2) Question of consent regarding alleged victim under 16 If on the trial of a person for an offence under section 61I the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66C (3) or 66C (4), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.
(3) Question of consent or authority regarding alleged victim under 16 If on the trial of a person for an offence under section 61J or 61JA the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66A or 66C, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.
(4) Question of consent regarding incest If on the trial of a person for an offence under section 61I or 61J the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 78A or 78B, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.
(5) Question of consent regarding cognitive impairment If on the trial of a person for an offence under section 61I, 61J or 61JA, the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66F, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.
(6) Question of whether offence committed for purposes of production of child abuse material If on the trial of a person for an offence under section 66DF the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66DC or 66DD, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.
(7)  If on the trial of a person for an offence under section 66A the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66B, 66C (1), (2), (3) or (4) or 66D, it may find the accused not guilty of the offence charged but guilty of an offence under section 66B, 66C (1), (2), (3) or (4) or 66D. The accused is liable to punishment accordingly.
(8)  If on the trial of a person for an offence under section 66C (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66C (1) or (3), it may find the accused not guilty of the offence charged but guilty of an offence under section 66C (1) or (3). The accused is liable to punishment accordingly.
(9)  If on the trial of a person for an offence under section 66C (1) or (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66C (3) or (4), it may find the accused not guilty of the offence charged but guilty of an offence under section 66C (3) or (4). The accused is liable to punishment accordingly.
(10)  If on the trial of a person for an offence under section 66C the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66D, it may find the accused not guilty of the offence charged but guilty of an offence under section 66D. The accused is liable to punishment accordingly.
(11)  If on the trial of a person for an offence under section 66A, 66B, 66C or 66D the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66DA or 66DB, it may find the accused not guilty of the offence charged but guilty of an offence under section 66DA or 66DB. The accused is liable to punishment accordingly.
80AC   Offenders who are minors
(1)  For the purposes of any offence, a person is not, by reason only of age, to be presumed incapable of having sexual intercourse with another person or of having an intent to have sexual intercourse with another person.
(2)  Subsection (1) does not affect the operation of any law relating to the age at which a child can be convicted of an offence.
80AD   Common law offences of rape and attempted rape abolished
(1)  The common law offences of rape and attempted rape are abolished.
(2)  Parts 1A, 1 and 19 of Schedule 11 make provision with respect to rape and other former sexual offences.
80AE   Consent no defence in certain cases
(1)  The consent of the child or other person to whom the charge relates shall be no defence to a charge under section 61E (1A), (2) or (2A), 61M (2), 61N (1), 61O (1), (2) or (2A), 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 66EB, 66EC, 67, 68, 71, 72, 72A, 73, 73A, 74 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E (1), 61L, 61M (1) or 76.
(2)    (Repealed)
80AF   Uncertainty about time when sexual offence against child occurred
(1)  This section applies if—
(a)  it is uncertain as to when during a period conduct is alleged to have occurred, and
(b)  the victim of the alleged conduct was for the whole of that period a child, and
(c)  there was no time during that period that the alleged conduct, if proven, would not have constituted a sexual offence, and
(d)  because of a change in the law or a change in the age of the child during that period, the alleged conduct, if proven, would have constituted more than one sexual offence during that period.
(2)  In such a case, a person may be prosecuted in respect of the conduct under whichever of those sexual offences has the lesser maximum penalty regardless of when during that period the conduct actually occurred, and in prosecuting that offence—
(a)  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
(b)  any requirement to establish that the victim was of a particular age is satisfied if the prosecution can establish that the victim was of that age at some time during that period.
(3)  In this section—
child means a person who is under the age of 16 years.
sexual offence means the following offences regardless of when the offence occurred—
(a)  an offence under a provision of this Division or Division 10A, 10B, 15 or 15A,
(b)  an offence under a provision of this Act set out in Column 1 of Schedule 1A,
(c)  an offence (whether under section 344A or otherwise) of attempting to commit any offence referred to in paragraph (a) or (b),
(d)  an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(c).
80AG   Defence of similar age
(1)  It is a defence to a prosecution for an offence under section 66C (3), 66DB, 66DD, 73 or 73A if the alleged victim is of or above the age of 14 years and the age difference between the alleged victim and the accused person is no more than 2 years.
(2)  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 alleged victim was less than 14 years of age or that the difference in age between the alleged victim and the accused person is more than 2 years.