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Contents (1900 - 40)
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Crimes Act 1900 No 40
Current version for 1 July 2019 to date (accessed 19 September 2019 at 00:23)
Part 3 Division 10 Subdivision 1
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61A–61G   (Repealed)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(1A)    (Repealed)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.