Section 268.19 Criminal Code Act | Crimes Against Humanity Sexual Violence


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The Legislation

Section 268.19 of the Criminal Code Act 1995 (Cth) is Crimes Against Humanity Sexual Violence and is extracted below.

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268.19  Crime against humanity—sexual violence

(1)  A person (the perpetrator) commits an offence if:

(a)  the perpetrator does either of the following:

(i)  commits an act or acts of a sexual nature against one or more persons;

(ii)  causes one or more persons to engage in an act or acts of a sexual nature;

without the consent of the person or persons, including by being reckless as to whether there is consent; and

(b)  the perpetrator’s conduct is of a gravity comparable to the offences referred to in sections 268.14 to 268.18; and

(c)  the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty:  Imprisonment for 25 years.

(2)  Strict liability applies to paragraph (1)(b).

(3)  In subsection (1):

consent means free and voluntary agreement.

The following are examples of circumstances in which a person does not consent to an act:

(a)           the person submits to the act because of force or the fear of force to the person or to someone else;

(b)           the person submits to the act because the person is unlawfully detained;

(c)           the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;

(d)           the person is incapable of understanding the essential nature of the act;

(e)           the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);

(f)            the person submits to the act because of psychological oppression or abuse of power;

(g)           the person submits to the act because of the perpetrator taking advantage of a coercive environment.

threat of force or coercion includes:

(a)  a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power; or

(b)  taking advantage of a coercive environment.

(4)  In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person is consenting to the act or acts of a sexual nature.