WA Criminal Law

Section 325: A person who sexually penetrates another person without the consent of that person, is guilty of a crime.

Sexual penetration means to penetrate the vagina, anus or urethra of any person with any part of the body of another person or with an object manipulated by another person. Sexual penetration also includes engaging in cunnilingus or fellatio.

Section 319 of the Criminal Code defines aggravation: Circumstances of aggravation means circumstances in which during or immediately before or after the act:
(1) The offender was or pretended to be armed with a dangerous or offensive weapon;
(2) The offender was in the company of other persons;
(3) The offender does bodily harm to the victim;
(4) The offender does an act which likely to seriously or substantially likely to degrade or humiliate the victim;
(5) The offender threatens to kill the victim; or
(6) The victim is of or over the age of 13 and under the age of 16 years.

The maximum penalty is 14 years imprisonment. Where the act is done in circumstances of aggravation, the maximum penalty is 20 years.

(1) That there was some form of sexual penetration of the victim;
(2) That the penetration occurred without the victim’s consent; and
(3) That the accused intended to sexually penetrate the victim.

Note that consent cannot be obtained through force, threat, intimidation, deceit or any other fraudulent means.

The fact that a person does not physically resist the act does not in itself constitute consent.

(a) Consent, identification (ie. The accused is not the person identified as sexually penetrating the victim);
(b) There was no penetration; and
(c) There was no intent.

The matter would be heard in the District Court.