Section 268.59 Criminal Code Act | International War Crime Rape


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The Legislation

Section 268.59 of the Criminal Code Act 1995 (Cth) is International War Crime Rape and is extracted below.

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268.59  War crime—rape

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

(a)  the perpetrator sexually penetrates another person without the consent of that person; and

(b)  the perpetrator knows about, or is reckless as to, the lack of consent; and

(c)  the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.

Penalty:  Imprisonment for 25 years.

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

(a)  the perpetrator causes another person to sexually penetrate the perpetrator without the consent of the other person; and

(b)  the perpetrator knows about, or is reckless as to, the lack of consent; and

(c)  the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.

Penalty:  Imprisonment for 25 years.

(3)  In this section:

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.

(4)  In this section:

sexually penetrate means:

(a)  penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or

(b)  penetrate (to any extent) the mouth of a person by the penis of another person; or

(c)  continue to sexually penetrate as defined in paragraph (a) or (b).

(5)  In this section, being reckless as to a lack of consent to sexual penetration includes not giving any thought to whether or not the person is consenting to sexual penetration.

(6)  In this section, the genitalia or other parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.