The 1970s. A time when religious belief was sacrosanct, and it was widely condemned and considered blasphemous to speak of any homosexual sexual relations. A time when many families were deeply entrenched in religious practice and elite schools were controlled by clergies who remained unmonitored in the practices which were widely enforced upon their pupils.

Victims have expressed prior fear of revealing the nature of the sexual abuse because of prevailing community standards, the position of their perpetrator(s) and the quick dismissal which the victims met when such allegations were raised, particularly when the alleged assault occurred against a male. It would not be until the early 2000s that historical child sexual assaults against males would come to the forefront of political agenda and the offenders began to be prosecuted under now repealed legislation.

The Law in New South Wales

The provision which creates an offence for indecently assaulting a male is located under the now repealed section 81 of the Crimes Act 1900 (NSW). This section states that:

"Whomsoever commits an indecent assault upon a male person of whatever age, with or without consent of such person, shall be liable to penal servitude for 5 years": s 81 Crimes Act 1900 (NSW) (now repealed).

This legislation was repealed and replaced by s 61I of the Crimes Act 1900 (NSW) which mandated for increased penal sentences of 14 years where an individual was found to have knowingly and intentionally engaged in sexual intercourse with a person (adult) without their consent.

The principles governing offences against children are well known as it is seen that "sexual assaults upon children, especially by those who stand in a position of trust to them, must be severely punished": R v Fisher (1989) 40 A Crim R 442 per Yeldham J. Where an individual is found to have engaged in sexual intercourse with a child, the following provisions and sentences were enacted:

  • Sexual intercourse with a child under 10 years of age - This offence exposes the offender to a maximum penalty of life imprisonment (s 66A(1) Crimes Act),
  • Sexual intercourse with a child between 10 and 14 years of age - This offence exposes the offender to a maximum penalty of 16 years imprisonment (s 66C(1) Crimes Act) and if committed in circumstance of aggravation the offender is liable to a maximum penalty of 20 years imprisonment (s 66C(2) Crimes Act),
  • Sexual intercourse with a child between 14 years and 16 years - This offence exposes the offender to a maximum penalty of 10 years imprisonment (s 66C(3) Crimes Act) and if committed in circumstances of aggravation the offender is liable to a maximum penalty of 12 years imprisonment (s 66C(4) Crimes Act).

Despite the increased penalty now attributed to nonconsensual sexual intercourse between adults and with a non-consenting child, section 19(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) states that the:

"...increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty."

The advancement of the community attitude towards non-sexual conduct towards any person is evident in the increased penal sentences however it appears that now matured offenders continue to benefit from historical sentencing practices afforded at the time in which their offences were committed.

Prosecutorial Burden

Offenders are often prosecuted for offences committed under s 81 of the Crimes Act decades after they have been committed and, at times, are unrepentant for their conduct against victims who have endured decades of trauma. It has been widely acknowledged that sexual abuse inflicted upon a child can have:

"...catastrophic consequences for them, leading to a life which is seriously comprised from what might otherwise have been. Both boys and girls are left with a distrust of adults and difficulties in intimacy. Inappropriate touching of boys may leave them with confusion as to their sexual identity. This can result in a life-long identity in relationships which can cause problems in other aspects of life": Royal Commission into Institutional Responses to Child Sexual Abuse (16 September 2013).

An indecent assault which occurs without the consent of the male under section 81 Crimes Act does not necessarily have to be inflicted upon a child. The provision has a wide application in that the offender must have indecently assault a "male person of whatever age without the consent of that person" however recent prosecution of historical sexual abuse has only been for indecent assaults which have occurred against male children.

To secure a conviction under this section, the prosecution bears the onus for establishing beyond reasonable doubt that the offender has:

  1. Knowingly or intentionally, and without the consent of the other male person,
  2. Committed a sexual act upon a male person.

It has been categorically proven that children under the age of 16 years old are unable to consent to any sexual conduct. The offence under s 81 Crimes Act is found to be proven where the prosecution successfully demonstrates that the offender utilised their then position of trust or authority, by virtue of employment involving children, to their own sexual gratification: R v Valentine [2019] NSWDC 201 at 12.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.