The Law Handbook 2024

158 SECTION 3: Fines, infringements and criminal law crime is punishable by up to 25 years’ imprisonment for each offence. Under section 50E of the Crimes Act, a person commits incest if they take part in an act of sexual penetration with someone who is over the age of 18, who they know to be their father, mother, other lineal ancestor, step-father or step-mother. This crime is punishable by up to five years’ imprisonment. ‘Lineal ancestor’ and ‘lineal descendant’ are defined in section 50A of the Crimes Act. An exception to the offences in section 50D and 50E of the Crimes Act is if one of the people is a step-parent and at no point has the other person spent any time under their authority, care or supervision, and at the time of the act, they were at least 18 years (see s 50J Crimes Act). Under section 50F of the Crimes Act, a person commits incest if they take part in an act of sexual penetration with someone who they know to be their sister, half-sister, brother or half-brother. This crime is punishable by up to five years’ imprisonment. If you are compelled by force or otherwise to engage in incest without your consent, you are not guilty of an offence (see s 50H Crimes Act). You cannot consent to incest (see s 50K Crimes Act). For more information about consent, see ‘Consent’, above. Sexual offences against children The Crimes Act describes two age categories where sexual activity with a child (i.e. a person under the age of 18 years) is unlawful: 1 Child aged 16 to 17 years; 2 Child aged under 16 years. Child aged 16 to 17 years Sexual penetration of a child Under section 49C of the Crimes Act, a person is guilty of sexual penetration of a 16- or 17-year-old child if they take part in sexual penetration with a child who is between the ages of 16 to 17 years, who they are not married to, and who is under their care, supervision or authority at the time of the act. This crime is punishable by up to 10 years’ imprisonment. Sexual assault Under section 49E of the Crimes Act, a person is guilty of sexually assaulting a 16- or 17-year-old child who is under their care or authority if they touch, or cause another person to touch, the child in a way that is contrary to community standards of acceptable conduct. Whether the touching is contrary to these community standards depends on the circumstances. Circumstances include the purpose of the touching, or what the person is seeking to gain from the touching. Consent is not a circumstance. This crime is punishable by up to five years’ imprisonment. Sexual activity in a child’s presence It is an offence for a person to intentionally engage in sexual activity in the presence of a child who is 16 or 17 years who is under their care, supervision or authority (s 49G Crimes Act). It is an offence to cause a child who is 16 or 17 years to be present during sexual activity (s 49I). Each of these crimes is punishable by up to five years’ imprisonment. Encouraging sexual activity Under section 49L of the Crimes Act, it is an offence for an adult to encourage a child who is 16 or 17 years who is under their care, supervision or authority to engage in or be involved in sexual activity. This crime is punishable by up to five years’ imprisonment. Sexual performance Under section 49Q of the Crimes Act, it is an offence for a person to cause or allow a sexual performance by a child under the age of 18 years. The sexual performance occurs in circumstances that involve any person receiving a payment, reward or other benefit (whether before or after the performance). Under section 49R of the Crimes Act, it is an offence to invite another person to take part in a sexual performance with a child under the age of 18 years when the invitation or offer involves any person receiving a payment, reward or other benefit (whether before or after the performance). A ‘sexual performance’ is a live performance (whether in person or by electronic communication) that is, or could reasonably be considered to be, for the sexual arousal or gratification of any person.