Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 8 - OFFENCES AGAINST HUMANITY AND RELATED OFFENCES  

Division 268 - Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court  

Subdivision G - War crimes that are other serious violations of the laws and customs applicable in an armed conflict that is not an international armed conflict  

SECTION 268.87   War crime - sexual violence  

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

(a) the perpetrator does either of the following:

(i) commits an act or acts of a sexual nature against one or more persons;

(ii) causes one or more persons to engage in an act or acts of a sexual nature;

without the consent of the person or persons, including by being reckless as to whether there is consent; and

(b) the perpetrator ' s conduct is of a gravity comparable to the offences referred to in sections 268.82 to 268.87 ; and

(c) the conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.

Penalty: Imprisonment for 25 years.

(2)    
Strict liability applies to paragraph (1)(b) .

(3)    
In subsection (1) :

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.

threat of force or coercion
includes:

(a) a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against the person or another person; or

(b) taking advantage of a coercive environment.

(4)    
In subsection (1) , being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person is consenting to the act or acts of a sexual nature.