Issues with Sexual Penetration without Consent

Running head: Sexual Penetration without Consent
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The Issues that arise from the Offense of Sexual Penetration without Consent
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Running head: Sexual Penetration without Consent
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Table of Contents
Introduction................................................................................................................................3
The Criminal Code.....................................................................................................................3
Section 325.............................................................................................................................3
Consent.......................................................................................................................................4
The Age of Consent...............................................................................................................4
The Concept of Capacity to consent..........................................................................................5
Intimidation in Consent..............................................................................................................8
Conclusion..................................................................................................................................9
References................................................................................................................................11

Running head: Sexual Penetration without Consent
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Introduction
Sexual crimes are not just about punishing the offenders; they leave a painful mark to the
victims and their close friends and relatives. Some people end up getting permanent
emotional scars if they do not receive adequate counseling. The scars affect how they relate
with people of the opposite sex and also affect their reaction to everyday life situations. The
victims fall out with society; this is because the defilers, rapists, and sodomizers are members
of the community. The offences are very traumatizing to the victims.
Sexual offenses do not entail defilement, rape, and bestiality only. Section 323 of the code
defines unlawful and indecent assault. Sexual harassment is also an offense punishable by the
criminal law. In the case of Drago v R (1992), the issues discussed were corroboration,
discontinuation of prosecution, fabrication of false complaints, and multiple allegations. The
question of consent (age and capacity) also arises in matters relating to sexual offenses1. This
research seeks to highlight the issues that are not clearly outlined in section 325 of the
criminal code.
The Criminal Code
Section 325
S. 325 states that a person, who without consent, sexually penetrates another is guilty of the
offense and is liable to a sentence of 14 years imprisonment2. Penetration refers to a situation
whereby a person inserts their genital organs partially or wholly into the organs of another
person. Black’s law dictionary terms the insertion as a completion of the offense no matter
how slight the extent of the insertion was3.
1 Drago v R (1992) 8 WAR 488. (Extracted in the Colvin and McKechnie text)
2 Chapters 31 of the Western Australian Criminal Code 1913
3 Black’s Law Dictionary

Running head: Sexual Penetration without Consent
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Consent
Section 319(2) (a) of the criminal code describes consent as free and voluntary agreement to
participate in something. Does the definition of consent in S. 319 (2) (a) apply to sections
323 and 325? Section 222 states that once force is applied the offense becomes an assault;
this happens if there is no consent, or the permission is obtained fraudulently. In sexual
consent, is a minor allowed to do so? In the case of Higgins v Western Australia, it was ruled
that consent (in favorable terms) incorporates all offenses listed in the criminal code4.
The Age of Consent
Sections 321 and 321A of the criminal code determine the age of consent. In matters relating
to sex, not every single person can consent. According to section 321, a child is a person
below the age of 16 years, but over the age of 13 years. Sexual consent is thus limited to
persons above 16 years of age. Section 321A and subsection 7 states that the prosecution has
to prove that the accused person believed that the child was over 16 years (on reasonable
grounds). The question of age brings the aspect of section 24. S.24 talks about the mistake of
fact where the accused believes that the person consenting to sex is above 16 years5.
However, in the case where the child is below 16 years and agrees to sex, it is stated by the
code that anyone below 16 years cannot give consent. The capacity to consent is limited to
adults; a child cannot give sexual consent6.
Section 325 only defines the offense as penetration ‘without consent.’ That particular section
has not determined the victim's age. Does that mean that the code assumes that everyone
should not engage in sexual intercourse with children even if they consent? Section 321 (9)
describes different maximum penalties and the available defences where the child is between
4 Higgins v Western Australia [2016] WASCA 142, [7]-[11], [125]-[127], [166]-[167].
5 Section 24 of the Western Australian Criminal Code
6 David Finkelhor. "The prevention of childhood sexual abuse." The future of children 19.2 (2009): 169-194.