Sexual offences

Contributed by JonathonHunyor, as amended by ThomasClelland and current to May 2025

Sexual offences raise a range of potentially complex issues, including specific evidentiary provisions, procedural rules, sentencing and reporting regimes and a regime for ongoing supervision or detention of serious sex offenders.

Offences

Sexual offences

In 2023, the Criminal Code Act 1983 (NT) ("CCA") was amended in a significant way that reshaped the legislative framework for sexual offences. Those offences are now found in a dedicated part, Part VIA of the Criminal Code Act, entitled 'Sexual Offences'. That Part now contains a definition glossary of relevant terms [CCA 208G].

Rape

The offence known as rape in many jurisdictions is known in the Northern Territory as sexual intercourse without consent [CCA s.208H]. The offence carries a maximum punishment of life imprisonment, or 20 to 25 years for an attempt.

Sexual intercourse

The legal definition of sexual intercourse is broad, and can be found in s 208G of the Criminal Code. It includes the penetration of the genitals or anus with anything controlled by a person, penetration of the mouth with the penis, and oral sex [CCA s 208G].

Consent

Consent means free and voluntary agreement to the [sexual] act. The CCA details some circumstances when there is no consent [CCA s.208GA, including where:

• the person submits because of force, fear of force or fear of harm of any type to themself or another person
• the person submits because they are unlawfully detained
• the person submits to the act on the basis of a false representation as to the nature or purpose of the act
• the person is asleep or unconscious or otherwise so affected by drugs or alcohol as to be incapable of consenting
• the person is incapable of understanding the sexual nature of the act
• the person is mistaken about the sexual nature of the act
• the person consents to the act with a condom, but another person involved in the act does not use or intentionally removes the condom (note: this is a newly inserted aspect of consent to deal with so-called 'stealthing' cases)

A person is guilty of the crime if the person has sexual intercourse without the other person's consent was reckless as to the lack of consent [CCA s.208H].

Marriage was once a defence to rape under the common law but is not a defence to section 208H of the CCA.

The maximum penalty for sexual intercourse without consent (rape) is life imprisonment. Although no minimum term is set, as with all prescribed sexual offences, once found guilty an offender must be sentenced to a term of actual imprisonment [Sentencing Act s.78F]. If the sentencing court imposes a non-parole period, any non-parole period must be not less than 70% of the head sentence [Sentencing Act s.55].

Recklessness as the concept applies to sexual offences is discussed at s 208HE of the Criminal Code.

Gross indecency

It is an offence to commit an act of gross indecency upon another person without the consent of that person [CCA s.208HB]. Gross indecency is not defined by the CCA but has been found by the courts to be a phrase that should be given its ordinary and popular meaning ... that is unbecoming or offensive to common propriety [Purvis v Inglis [1915] NZGazLawRp 201; (1915) 34 NZLR 1051; Stokes v Bragg [1955] SASR 311]. For discussion on whether or not physical contact is required to prove the offence, see The King v Rory [2023] NTSCFC 3. In each particular case, the jury must decide whether an act is grossly indecent. There is a difference between an indecent act and a grossly indecent act, but there is no clear guide about the nature of the difference. The provisions of free agreement and consent also apply to the offence of gross indecency. The maximum penalty for this offence is 14 years imprisonment, or 17 years for an aggravated offence.

Indecent assault, touching or act

The offence of indecent assault [formerly a sub-species of assault found at CCA s.188(2)(k)] has been abolished. It has been replaced by the offence of indecent touching or indecent act without consent [CCA s 208HC]. That offence is a relative analogue in terms of its elements and carries a maximum penalty of 5 years, or of 7 years in an aggravated case.

Compelled indecent touching or act

It is an offence to intentionally compel by force or otherwise, another person to touch a part of the compelling person's body where there is an absence of consent, and where the touching is indecent [CCA s 208HD]. This is a broadly drafted offence capable of capturing the now-abolished offence of force sexual self-manipulation. Moreover, the compulsion extends beyond physical force, and would presumably have application where a person uses verbal threats.

Child abuse material

More commonly known as child pornography, child abuse material is defined at section 125A of the CCA as material that depicts, describes or represents in a manner likely to cause offence to a reasonable adult, a person who is a child or who appears to be a child engaging in sexual activity, in a sexual, offensive or demeaning context or being subject to torture, cruelty or abuse. It does not include material that has been classified under the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (other than as 'RC').

The most common form of child abuse material prosecuted is photographic imagery downloaded from internet child pornography sites.

It is an offence to possess such material [CCA s.125B]. Under earlier similar legislation relating to child pornography, the maximum penalty for the offence was two years imprisonment. The maximum penalty is now 10 years imprisonment.

The distribution, production and sale of such material is dealt with under the same section and carries the same maximum penalty.

It is important to note that these matters are most commonly prosecuted pursuant to Federal legislation, rather than the provisions of the Northern Territory Criminal Code.

Use of a child for production of child abuse material or pornographic or abusive performance

A person who uses a child or someone who appears to be a child for the production of child abuse material or for a pornographic or abusive performance is liable to imprisonment for 14 years [CCA s.125E].

Indecent articles

Section 125C makes it an offence to publish an indecent article. The offence is punishable by imprisonment for two years.

An indecent article means an article that:

(a‚ promotes crime or violence or incites or instructs in matters of crime or violence;
(b) depicts, describes or represents, in a manner that is likely to cause offence to a reasonable adult -

Sexual offences involving children under 16 years

The provisions of the Criminal Code in relation to sexual offending against children have been harmonised and are now largely found in Division 3 of Part VIA of the Criminal Code Act. That division applies specifically to children under 16 years old, and replicates the aforementioned offences of sexual penetration, compelled indecent touching, gross indecency, and others. However, the Division also contains other offences such as exposing a child under the age of 16 years of age to an indecent act or thing [CCA s 208JE], recording or capturing an indecent image of a child [CCA s 208JF], attempting to procure a child to engage in sexual activity [CCA s 208JG], and grooming a child to engage in sexual activity [CCA s 208JH]. Consent of the child is not a defense [CCA s 208JK], except for the offence of sexual intercourse with a 14- or 15-year-old person, in which case there is a defence to prosecution if the age difference between the parties is not more than 24 months and there is mutual consent [CCA s 208(5)].

Repeated sexual abuse of a child under 16 years

One of the most significant reforms in Division 3 of Part VIA of the Criminal Code is the legislation of an offence that applies to a person who intentionally engages in sexual activity with a child under the age of 16 on two or more occasions [CCA s 208JI]. Of note is that the offence has "retrospective" effect, meaning that it applies to offending dating back as far as 1 July 1978 [CCA s 208JI(1)(a)], which makes the provision unusual as there is generally no retrospective application of newly legislated crimes.

The offence appears designed to capture historical examples of the conduct, to more easily enable prosecution of those historical examples, and to harmonise the law to make that task simpler for the courts hearing those cases.

Depending on when the offence was committed, a different maximum penalty will apply [see table at CCA s 208JI(7)].

A person may be charged with the offence against s 208JI and other offences against the Division in certain cricumstances [CCA s 208JJ].

Sexual acts committed against young persons by persons in positions of authority, or against cognitively impaired persons by carers

Divisions 4 and 5 of Part VIA of the Criminal Code essentially replicate the offences of sexual intercourse without consent, compelling sexual intercourse, and the aforementioned gross indencency and indecent touching offences (with some notable differences) in circumstances where the victim is a young person (between 16 and 18 years old) and the offender is a person in a position of authority (Division 4) or where the victim is a cognitively impaired person and the offender is a person in a position of authority (Division 5).

Each of those Divisions contains definitional provisions relevant to the particular circumstances of the case.

Incest

Section 134 of the CCA, which used to be the prohibition on incest, has been abolished. The offence of incest, and relevant definitions, are now found in Division 6 of Part VIA of the Criminal Code.

Where a person has sexual intercourse with another person, and that person is a close family member, and the person knows that fact, that person is liable to prosecution for incest [CCA s 208MA]. The offence carries a maximum penalty of 14 years.

Bestiality

The maximum penalty is imprisonment for three years [CCA s.138]. Bestiality involves the 'intentional sexual involvement' with an animal, and carries a maximum penalty of 7 years imprisonment [CCA s 208N].

Rules of Evidence

Special rules of evidence apply to sexual offences and in particular to the evidence of complainants.

Increasingly, sexual offences are dealt with on indictment, meaning that they will be heard and determined in the Supreme Court as opposed to the Local Court.

Recently, the rules of evidence have been amended to make it easier for children to give evidence in relation to alleged sexual offences, and also for vulnerable witnesses to do so by way of pre-recorded evidence.

Alleged victims and child witnesses at preliminary examination/committal

In cases involving sexual offences, children and alleged victims are ''protected witnesses": they are not required to attend a preliminary examination and cannot be examined or cross-examined at a preliminary examination [Local Court (Criminal Procedure) Act s.105L].

Vulnerable witnesses

Any complainant who is the alleged victim of a sexual offence, whether they are an adult or a child, is regarded as a vulnerable witness [Evidence Act s.21A]. When the complainant gives evidence, the court must be closed [Evidence Act s.21F]. The complainant can choose to give their evidence from outside the courtroom by means of closed circuit TV. Alternatively, the witness may use a screen, partition or one-way glass to obscure the witness's view of a party to whom the evidence relates.

The court may only decline to allow the vulnerable witness the use of special arrangements if it decides that it is not in the interests of justice to do so or the urgency of the proceedings makes it inappropriate to make the necessary arrangements.

Children and people who suffer from an intellectual disability are a special category of vulnerable witness. Section 21B of the Evidence Act allows for their evidence to be pre-recorded in addition to the aforementioned protections. In practice, children are interviewed by police about the sexual offence on video and if that is done in proper admissible form, it may be used as the child's evidence-in-chief. This is referred to as a 'CFI' or Child Forensic Interview. The child may then be cross-examined by defence counsel. Alternatively, the whole of the child's evidence may be fully pre-recorded at a special hearing and subsequently played at trial before the jury.

Special principles have also been enshrined in legislation requiring courts to take measures to limit the trauma suffered by child witnesses and to ensure they are treated with dignity, respect and compassion and are not intimidated when giving evidence: see Evidence Act s.21D.

The evidence of a child witness may also be bolstered by the use of a special exception to the rule against hearsay evidence. This exception is to be found at section 26E of the Evidence Act and allows a court to admit evidence of a child's statement to another person as evidence of the facts in issue if the court considers the evidence is of sufficient probative value as to justify its admission. Importantly, an accused person cannot be convicted solely on the basis of hearsay evidence admitted under this provision [s.26E(3)].

Time limits and complainant's sexual history

Further rules of evidence specific to sexual offences are set out in the Sexual Offences (Evidence and Procedure) Act.

Trials are to be commenced within three months of the matter first being mentioned in court. This is often difficult to achieve in reality; however, the court has power to grant extensions and regularly does.

In most cases, a court is not permitted to hear evidence about a complainant's general reputation as to chastity or their sexual activities with any other person. The court can, however, allow such evidence to be given where it can be shown to have substantial relevance to the facts in issue. Such evidence will also be likely to be permitted if there are special circumstances which would suggest that the evidence would be likely to affect confidence in the reliability of the evidence of the complainant [Sexual Offences (Evidence and Procedure) Act s.4].

Unrepresented defendants

An unrepresented defendant is not permitted to cross-examine a complainant directly but must put their questions to the complainant via the court, usually via the judge or magistrate [Sexual Offences (Evidence and Procedure) Act s.5].

Advice for complainants

A victim of sexual violence may choose to undergo a medical examination as soon as possible after the incident in order to:

• determine if there has been any injury, that may not be readily apparent
• test for a sexually transmitted disease and/or unwanted pregnancy
• collect medical evidence for possible prosecution.

A victim who may wish to give evidence is asked to undergo a complete medical examination, which may involve a pelvic (internal) examination, the collection of specimens for laboratory tests and the photographing of injuries relating to the offence. The collection of specimens may involve combing pubic hair and taking vaginal or anal swabs to test for the presence of semen. Photographs may be taken of any injuries to the face, body, vaginal or anal area.

A victim can be accompanied through the medical examination by a friend, social worker or nurse. They can also request total privacy in treatment, can refuse the collection of medical evidence, and they are, on asking, entitled to receive a reason for every test and procedure carried out.

Reporting and ongoing detention regimes for sex offenders

Note that convicted sex offenders may be subject to ongoing reporting obligations under the Child Protection (Offender Reporting and Registration) Act 2005 (NT) if they have been sentenced for a 'reportable offence' or have been made the subject of an offender reporting order by a court. The regime creates a number of offences, including a failure to comply with reporting obligations [s.48] or furnishing false or misleading information [s.49].

Serious sex offenders can be made subject if ongoing detention or supervision orders (ie beyond the end of their sentence) under the Serious Sex Offenders Act (NT) if they are found to be a 'serious danger to the community' unless they are subject to such order.