Working with the criminal justice system

There are some key differences between the child protection system and the criminal justice system, as outlined below. The information is meant as a guide only:

Illegal sexual activity

Sexual expression in young people is both normal and developmentally appropriate. Some young people, their parents and the community can find it difficult to distinguish between consensual sexual activity and exploitative or abusive sex. This is particularly relevant when the young person is over the age of legal consent (16 years).

Sexual Assault

Sexual assault is when a person:

• touches another person inappropriately without their consent—for example, groping
• forces a person against their will to commit an act of gross indecency—a sexual act that does not involve penetration, for example, a person forces another to touch their genitals
• forces a person to see an act of gross indecency, for example the person masturbates in front of another person.

It can happen in public, private, or institutional settings and can be carried out by people known to the victim (including family members, partners or former partners) or by strangers.

Penetrative sexual acts can also constitute a sexual assault but may also be defined as aggravated sexual assault which is punished more severely under Queensland law. A penetrative sexual act might also constitute an offence of rape.

The maximum penalty for sexual assault is 10 years in prison. In instances where there is aggravation—a weapon is used or more than one person is involved in the assault—the maximum penalty is 14 years in prison.

Rape

Rape is the most serious form of sexual assault, forcing someone to have sexual intercourse without their consent. However, forcing someone to perform oral sex also constitutes rape as does digital penetration and inserting any object into the vagina or anus of another person without their consent.

Rape is considered a very serious offence and carries a maximum sentence of life imprisonment.

For sexual intercourse not to be rape, consent must be freely and voluntarily given by a person with the cognitive capacity to do so. Therefore if a person has sexual intercourse while the other person is asleep, unconscious or their cognitive capacity is impaired by drugs or alcohol, it still constitutes rape.

Sharing intimate images

An intimate image is defined in law, and might include a photograph or video of a person:

• nude
• with their genitals or backside showing (whether bare or covered by underwear)
• with their bare breasts showing (if they are female or, if transgender or intersex, if they identify as female)
• engaged in an intimate sexual activity not normally done in public
• digitally altered images are also included in the definition of an intimate image. For example
  • a person’s face digitally added to a pornographic or sexualised image
  • a nude or partially nude person with their genitals or breasts digitally covered (for example, with an emoji).

This is not a complete list of what constitutes an intimate image.

It is a crime in Queensland to share an intimate image of someone without their consent in a way that could reasonably cause distress to the other person. In Queensland, it is illegal to make, share, request, access or have images or recordings that are offensive and show a person under 18 (or show someone who looks like they are under 18) in a sexual way. Sexting can be a crime if it involves people under 18, even if they have consented. A person under 16 cannot legally give consent.

It is also illegal to threaten to share an intimate image without the pictured person’s consent. This applies to threats made to the person in the image, or threats to anyone else. This is the case even if the image doesn’t exist.

Consent

It doesn’t matter if an image was originally taken with consent. If the image involves someone under 18 it can still be a crime. If someone provided an image or gave someone permission to see the image, it does not mean they have agreed to anyone else seeing it.

If someone sends a person an intimate image, that person should not show it to anyone else without their willing consent.

Child exploitation material

There are a range of offences under both Queensland and Commonwealth legislation relating to the access, possession, distribution and making of child exploitation material.

In Queensland, child exploitation material (CEM) is material likely to cause offence to a reasonable adult that describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years:

• in a sexual context, including engaging in a sexual activity
• in an offensive or demeaning context
• being subjected to abuse, cruelty or torture.

Under Commonwealth legislation, there are also similar definitions relating to child abuse material and child pornography material (Queensland Sentencing and Advisory Council, 2017).

The national law applies to images and videos of people who are (or seem to be) under 18 years old.

Another key distinction between Queensland and Commonwealth legislative provisions arises from the Commonwealth’s responsibility for internet, telecommunications, postal services and border protection versus the states’ constitutional authority over criminal matters. Queensland offences relate broadly to the access, possession, distribution, or making of child exploitation material while the Commonwealth offences relate to the use of either a carriage service (such as the internet or telephone) or the postal service, in relation to such offending (Queensland Sentencing and Advisory Council, 2017).