As our community evolves, so does the law. Every year, different
behaviours are withdrawn from or brought into the reach of our
criminal laws to reflect our society's changing expectations
and values.
One such new offence is that of committing sexual activity which is directed at another person. This is criminalised under s 48 of the Crimes Act.
Imagine this scenario:
A jogger is running alone on a quiet trail. There is no one in sight.
As the jogger runs along, a man jumps out and simulates masturbating while fully clothed. Understandably, the jogger is terrified.
What Could the Man be Charged With?
We are all familiar with the concept of a 'flasher'. 'Flashing' is characterised by the sexual exposure of genitals, and such conduct is captured by the offence of sexual exposure under s 19 of the Summary Offences Act. This charge carries a maximum penalty of imprisonment for 1 year.
In our scenario, the man has remained fully clothed; he has not exposed himself. Accordingly, he could not be charged with sexual exposure.
However, the man could be expected to be charged with committing sexual activity directed at another person.
Exploring the Offence
This new offence applies in circumstances where:
- An accused (A) performs a sexual activity; and
- That sexual activity is seen by another person (B); and
- A knows that B will / will probably see the sexual activity; and
- A intends or knows that B seeing the activity will / will probably experience fear or distress from witnessing it.1
The offence may occur in public or in private and the maximum penalty is 5 years' imprisonment.
Sounds simple? Perhaps not.
Case Study
Our firm has represented clients who have been charged with committing sexual activity directed at another person.
In one case, our client was alleged to have made a sexual advance to a person in a context in which people regularly and willingly engage in sexual activity. The person the advance was directed to was distressed by the incident and reported it to the police.
Ultimately, the Magistrate found that our client had made the sexual advance. However, after hearing submissions from our lawyers, the Magistrate found that our client was not guilty of the charge of committing sexual activity directed at another person.
Why?
The Magistrate found that our client had no intention to cause fear or distress to the person because the Magistrate could not exclude the possibility that our client was expecting to engage in a consensual sexual encounter given the context in which the incident occurred.
In this case, our lawyers prepared comprehensive legal submissions which resulted in the best possible outcome.
The Key Aspect to the Offence
Importantly, this law was created in such a way that liability for the offence does not depend upon the reaction of the person who witnessed the sexual activity.
The key aspect of this offence is that the accused intended or was reckless as to whether their sexual activity might cause another fear or distress; this is criminalised regardless of the victim's reaction.
For example, a person with self-defence training may not be fearful of sexual activity directed towards them and might take defensive action. Their swift reaction to stop the exposure does not necessarily mean a criminal act did not occur. It is not about the actions of the person exposed to the sexual activity.
Conclusion
As laws continue to evolve, it's crucial to stay informed
and seek appropriate legal representation when facing charges
related to the offence of committing sexual activity directed at
another person. Our firm is dedicated to providing expert advice
and support to achieve the best possible outcome for our
clients.
Footnote:
1 Crimes Amendment (Sexual Offences) Act
2016: An Introduction, page 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.
