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The Crimes Act Amendment (Sexual Offences and Female Genital Mutilation) Bill 2025 (NSW) aims to ensure the criminal law of today is current and relevant. The new laws update the laws on four aspects, namely:
- Female genital mutilation
- Sexual acts concerning children
- Sexual interference with a human body when there is uncertainty as to the time of death
- Larceny and unlawfully receiving property
- Definition of a 'child' in child abuse material offences
The purpose of these new laws is to ensure that our criminal laws continue to be relevant and practical to protect victims of sexual assaults and female genital mutilation.
What is Female Genital Mutilation?
Female genital mutilation is defined as a person who excises, infibulates or otherwise mutilated the whole or any part of the labia majora or labia minors or clitoris of another person, regardless of the age of the other person, or aids, abets, counsels or procures a person to perform it.
Female Genital Mutilation (FGM) Laws
The case of Russell v R [2023] NSWCCA 272 held that the offences of sections 45 and 45A of the Crimes Act 1900 (NSW) concerning female genital mutilation only apply to child victims, and to acts for ritualistic or traditional purposes. In response to Russell's case, the new laws now expand on this and allow these offences to apply regardless of whether the victim is a child or an adult and clarify that acts can constitute female genital mutilation even where they are not done for a ritualistic or traditional purpose.
The new laws also clarify that tattooing and piercing, when compliant with all legal and professional standards, does not constitute female genital mutilation, and to allow additional classes of persons to be prescribed authorised medical professionals for certain surgical procedures.
Penalties for FGM
Section 45 of the Crimes Act prescribes a penalty of up to 21 years imprisonment to any person who excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minors or clitoris of another person, regardless of the age of the other person, or aids, abets, counsels or procures a person to perform the same, regardless of the age of the other person.
Defences to Female Genital Mutilation
Defences to female genital mutilation include committing the offence to perform a surgical operation if that operation:
- Is necessary for the health of the person on whom it is performed and if performed by a medical practitioner, or
- Is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth, by a medical practitioner or authorised professional, or
- Is a sexual reassignment procedure and if performed by a medical practitioner.
Other Defences include:
- Piercing or tattooing, if the piercing or tattooing is carried out in accordance with all relevant legal, professional and ethical requirements application to the piercing or tattooing, or
- Another act that is prescribed by the regulations.
It is not a defence to a charge of female genital mutilation if the person mutilated consent to it.
An 'authorised professional' means a registered midwife, a midwifery student, medical student, or a person who is a member of a class of persons prescribed by the regulations.
Removing a Person from State for Female Genital Mutilation
The maximum penalty is 21 years imprisonment if a person is guilty of taking another person from the State, or arranged for another person to do the same, with the intention of having female genital mutilation performed on the other person according to section 45A of the Crimes Act.
These offences apply regardless of the age of the person taken from the State or arranged to be taken from the State.
The law now says that in the absence of proof to the contrary, it is to be presumed that the accused person took another person (or arranged another person to be taken) from the State with the intention of female genital mutilation being performed on the other person if it is proved that the accused took the person (or arranged the person to be taken) from the State, and female genital mutilation was performed on the person while outside the State.
It is no defence if the person taken consented to being taken.
Sexual Acts with or Towards a Child and Sexual Acts Done in the Presence of a Child
The case of DPP (NSW) v Presnell [2022] NSWCCA 146 held that for a sexual act offence to be 'with or towards' a child, there has to also be an intention for the offender to engage the child physically. Proving this intention is often difficult for the prosecution, who bear the onus to prove it. Where a person gains sexual arousal or gratification from the physical presence of a child, this indicates both a sexual interest in children and a willingness to act on it, even if there is no intention to engage physically- however does not constitute an offence. Therefore, the criminal law has now been updated to prohibit this behaviour as well attaching criminal responsibility to it.
The new laws now expand the existing offences of sexual acts with or towards a child to also apply to sexual acts done in the presence of a child where the presence of the child is a source of sexual gratification and/or arousal.
Sexual Acts Done in the Presence of a Child Offences
Subdivision 7 of Division 10 of Part 3 of the Crimes Act 1900 (NSW) contains a list of sexual touching offences which now also apply to sexual acts done in the presence of a child where the presence of the child is a source of sexual gratification and/or arousal. These include the below offences.
Sexual Act- Child Under 10 (section 66DC)
A maximum penalty of up to 7 years imprisonment applies to any person who intentionally carries out a sexual act with or towards a child who is under the age of 10 years, or who intentionally carries out a sexual act in the presence of a child who is under the age of 10 years, and for which the presence of the child is a source of sexual arousal or gratification of the person carrying gout the sexual act.
It is also an offence to incite a child who is under the age of 10 years to carry out a sexual act with or towards the person or another person or if a person intentionally incites another person to carry out a sexual act with or towards a child who is under the age of 10 years.
Sexual Act- Child Between 10 and 16 (section 66DD)
A maximum penalty of up to 2 years imprisonment applies to any person who intentionally carries out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years, or who intentionally carries out a sexual act in the presence of a child who is of or above the age of 10 years and under the age of 16 years, and for which the presence of the child is a source of sexual arousal or gratification of the person carrying gout the sexual act.
It is also an offence to incite a child who is of or above the age of 10 years and under the age of 16 years to carry out a asexual act with or towards the person, or another person or if a person intentionally incites another person to carry out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years.
Aggravated Sexual Act- Child Between 10 and 16 (section 66DE)
A maximum penalty of up to 5 years imprisonment applies to any person who in circumstances of aggravation commits the above offence of section 66DD.
Circumstances of aggravation means circumstances in which any one or more of the following apply:
- The offender intentionally or recklessly inflicts actual daily harm on the victim or any other person who is present or nearby.
- The offender threatens to inflict actual bodily harm on the victim or any other person present or nearby by means of an offensive weapon or instrument.
- The offender is in the company of another person(s).
- The victim is under the authority of the offender.
- The victim has a serious physical disability.
- The victim has a cognitive impairment.
- The offender took advantage of the victim being under the influence of alcohol or a drug in order to commit the offence.
- The offender deprives the victim of their liberty for a period before or after the offence.
- The offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence.
Sexual Act for Production of Child Abuse Material- Child Under 16 (section 66DF)
A maximum penalty of up to 10 years applies to any person who intentionally carries out a sexual act with or towards a child who is under the age of 16 years and who knows that the sexual act is being filmed for the purposes of the production of child abuse material. The same penalty applies to a person who intentionally carries out a sexual act in the presence of a child who is under the age of 16 years and for which the presence of the child is a source of sexual arousal or gratification of the person carrying out the sexual act and who knows that the sexual act is being filmed for purposes of production of child abuse material.
It is also an offence for a person to intentionally to incite a child who is under the age of 16 years to carry out a sexual act with or towards the person or another person and who knows that the sexual act is being filmed for the purpose of the production of child abuse material.
Sex with Dead Corpse | Necrophilia and Sexual Offences
Prior to the reforms, an accused person could escape criminal responsibility by technicality where there is uncertainty as to whether the victim of the sexual assault was alive or dead at the time of the sexual interference. For example, a sexual offence can only be committed against a living person, while an indecent interference with a dead human body can only be committed on a dead person.
To fill this gap in the law, the new laws now allow the courts to ensure that an offender does not escape criminal responsibility where there is uncertainty as to whether the victim of the sexual assault was dead or alive where the court is satisfied beyond reasonable doubt that either a sexual offence or the indecent interference offence has been committed, but is unable to be satisfied of which due to uncertainty around whether the victim was dead or alive at the time, the accused person will still be criminally liable to be sentenced according to the offence with the lesser maximum penalty. This is now reflected in the new section 80AH of the Crimes Act.
The offence of indecent interference with a dead human body now has a maximum penalty of up to 3 years imprisonment.
Section 81C of the Crimes Act prescribes up to 3 years imprisonment if a person indecently interferes with any dead human body. The subsection also prescribed up to 2 years imprisonment if a person improperly interferes with, or offers any indignity to, any dead human body or human remains (whether buried or not).
Necrophilia Meaning
Necrophilia is also commonly known as necrocoitus, necrochlesis, thanatophilia, necrophilism or necrolagnia, which means a sexual attraction or act towards or involving corpses. This includes having sexual intercourse with a dead body and sexual excitement at the thought of a corpse or sexual excitement from being in the presence of a dead body. This type of paraphilia is rare and is usually more seen in men than women.
New Laws on Larceny and Unlawfully Receiving Property Offences
Other similar changes and tweaks to the law now apply to offences of larceny and receiving under section 121 of the Crimes Act. A special verdict now deals with circumstances where it is beyond reasonable doubt that criminal conduct has occurred, but because it is unclear which specific offence applies.
Section 121 of the Crimes Act states that where, on the trial of a person charged with larceny, or any offence which includes larceny, and also, with having unlawfully received the property charged to have been stolen, knowing it to have been stolen, the jury find specially that the person either stole, or unlawfully received, such property, and that they are unable to say which of those offences was committed by the person, such person shall not by reason thereof be entitled to acquittal, but shall be liable to be sentenced for the larceny, or for the unlawful receiving, whichever of the two offence sis subject to the lesser punishment.
Child Abuse Material and Raising the Age of Children
The new laws now increase the age of what is defined as a child. A "child" is now a person under the age of 18 years of age, rather than a person under the age of 16 years for purposes of child abuse material offences in Division 15A of the Crimes Act (NSW). Raising the age to 18 years is now consistent with the federal laws on child abuse offences. This now covers a greater scope of offenders.
Child abuse material offences under New South Wales laws include the following:
Children not to be used for production of child abuse material: section 91G Crimes Act
Any person who uses a child who is under the age of 14 years for the production of child abused material, or causes or procures a child of that age to be so used, or having the care of a child of that age, consents to the child being so used or allows the child to be so used is guilty of an offence with a maximum penalty of up to 14 years imprisonment.
Any person who does this in respect of a child who is of or above the age of 14 years is guilty with a maximum penalty of 10 years imprisonment.
If either of the above offences is committed in circumstances of aggravation, the maximum penalty is 20 years imprisonment.
Circumstances of aggravation means any one of more of the following:
- The victim is under the age of 10 years.
- The offender intentionally or recklessly inflicts actual bodily harm on the victim or any other person who is present or nearby.
- The offender threatens to inflict actual bodily harm on the victim or any other person who is present or nearby by means of an offensive weapon or instrument.
- The offender is in the company of another person(s).
- The victim is under the authority of the offender.
- The victim has a serious physical disability.
- The victim has a cognitive impairment.
- The offender took advantage of the victim being under the influence of alcohol or a drug in order to commit the offence.
- The offender deprives the victim of his or her liberty for a period before or after the offence.
- The offender breaks and enters into a dwelling-house or other building with the intention of committing the offence or another serious indictable offence.
Production, Dissemination or Possession of Child Abuse Material: section 91H Crimes Act
A maximum penalty of 10 years imprisonment applies to any person who produces, disseminates or possesses child abuse material. Proceedings against a child for this offence can only be constituted if the Director of Public Prosecutions approves it, not the NSW Police.
Possessing here includes being in possession or control of data, while disseminate includes sending, supplying, exhibiting, transmitting or communicating it to another person or making it available for access by another person, or entering into any agreement or arrangement to do so.
Production it here includes filming, photograph, printing or otherwise making child abuse material, or altering or manipulating any image for the purposes of making it or entering into any agreement or arrangement to do so.
Defences to Child Abuse Material Charges
It is a defence to a charge of child abuse material if any one or more of the following defences apply:
- Concerning a section 91H offence: If the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed child abuse material.
- Concerning a section 91HAA offence of administering a digital platform used to deal with child abuse material: If the defendant on becoming aware that the digital platform was being used to deal with child abuse material, took all reasonable steps in the circumstances to prevent other persons from being able to use the digital platform to access child abuse material.
- Concerning a section 91H offence not involving the production or dissemination of child abuse material: That the material concerned came into the defendant's possession unsolicited and the defendant, as soon as becoming aware of its nature, took reasonable steps to get rid of it.
- It is a defence for a child abuse material offence if the defendant's conduct was of public benefit and did not extend beyond what was of public benefit. A pubic benefit includes conduct if it was necessary for or of assistance in enforcing or administering a law of the State or of another State, Territory or the Commonwealth; or monitoring compliance with, or investigating a contravention of the same, or the administration of justice.
- It is a defence if the defendant was, at the time of the offence, a law enforcement officer acting in the course of his or der duties, and the conduct was reasonable in the circumstances for the purpose of performing that duty.
- It is a defence against section 91H, 91HAA, 91HAB or 91HAC that the material concerned was classified under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC).
- It is a defence for an offence against sections 91G, 91H, 91HAA, 91HAB or 91HAC that the conduct engaged in by the defendant was necessary for or of assistance in conducting scientific, medical or educational research that has been approved by the Attorney General in writing for the purposes of this section, and did not contravene any conditions of that approval.
- It is a defence for an offence against section 91H of possessing child abuse material if the only person depicted in the material is the accused person.
- It is a defence for an offence against section 91H of producing or disseminating child abuse material if the production or dissemination of the material occurred when the accused person was a child, and the only person depicted in the material is the accused person.
- A person does not commit an offence under section 91H of
possessing child abuse material if the possession of the material
occurred when the defendant was a child and a reasonable person
would consider the possession of it by the defendant as acceptable
having regard to each of the following:
- The nature and content of the material,
- Circumstances in which the material was produced and came into possession of the defendant,
- Age, intellectual capacity, vulnerability or other relevant circumstances of the child depicted in the material,
- Age, intellectual capacity, vulnerability or other relevant circumstances of the defendant at the time the defendant first came into possession of the material and at the time that the defendant's possession of the material first came to the attention of a police officer,
- The relationship between the defendant and the child depicted in the material.
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.