Abduction or Detention for a Sexual Purpose

Which court will the case be heard in?

Which court will the case be heard in?

What is the legal definition of Abduction or Detention for a Sexual Purpose?

The legal definition of Abduction for Sex is “when a person (A) takes away or detains someone else (B) without (B)’s consent, and (A) knows that:

• (B) does not consent to being taken away or detained; or
• (B) probably does not consent to being taken away or detained; and(A) Intends that
  • (B) will take part in a sexual act with another person; or
  • Another person will marry (B) (whether or not (B) consents to being married).”¹

Legislation

The section that covers this offence is section 47 of the Crimes Act 1958:

Abduction or detention for a sexual purpose

1. A person (A) commits an offence if—
   1. A—
      1. takes away or detains another person (B); or
      2. causes B to be taken away or detained by another person; and
   2. B does not consent to being taken away or detained; and
   3. A knows that—
      1. B does not consent to being taken away or detained; or
      2. B probably does not consent to being taken away or detained; and
   4. A intends that—
      1. B will take part in a sexual act with A or another person (C) or both; or
      2. A or C will marry B (whether or not B consents to being married).
2. A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).
3. It is immaterial that the law prohibits or would not recognise (for whatever reason) a marriage between A and B or between C and B.²

Elements of the offence

For a person to be found guilty of Abduction for Sexual Purpose, the prosecution must prove the following elements beyond reasonable doubt:

1. The accused either took away or detained the complainant or caused the complainant to be taken away or detained by another person;
2. The complainant did not consent to being taken away or detained;
3. The accused knew that the complainant did not, or probably did not, consent to being taken away or detained;
4. The accused intended that:
   1. The complainant will take part in a sexual act with the accused or another person or both; or
   2. The accused or another person will marry the complainant (whether or not the complainant consents to being married).

Element 1: The accused either took away or detained the complainant or caused the complainant to be taken away or detained by another person
The prosecution must prove that the accused or another person on behalf of the accused took the complainant away by force. ‘Taking away’ involves the accused or another person on behalf of the accused engaging in a positive act of abduction.³

Element 2: The complainant did not consent to being taken away or detained
Consent means ‘free agreement’.⁴ Circumstances where a person does not consent to an act include, but are not limited to:⁵

1. the person submits to the act because of force or the fear of force, whether to that person or someone else;
2. the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;
3. the person submits to the act because the person is unlawfully detained;
4. the person is asleep or unconscious;
5. the person is so affected by alcohol or another drug as to be incapable of consenting to the act;
6. the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act.

Element 3: The accused knew that the complainant did not or probably did not consent to being taken away or detained
The accused must have been aware that the complainant either did not or probably did not consent to being taken away or detained for the third element of the offence to be satisfied.

Element 4: The accused intends that (i) the complainant will take part in a sexual act with the accused or another person or both; or (ii) the accused or another person will marry the complainant (whether or not the complainant consents to being married)
The complainant takes part in a sexual act if they are sexually penetrated or sexually touched by another person or animal or if they sexually penetrate or sexually touch another person, themselves or an animal.⁶

‘Sexual penetration’ means the accused introducing any part of their body or an object into the complainant’s vagina or anus or introducing their penis into the complainant’s mouth; or, having so introduced the body part, object or penis, continuing to keep it there.⁷ A complainant sexually penetrates themselves if they introduce a part of their body or an object into their own vagina or anus; or, having so introduced the body part or object, continue to keep it there.⁸

‘Touching’ may be done with any part of the body, anything else and through anything (including anything worn by the person doing the touching or by the person being touched).⁹ Touching may be sexual due to the area of the body being touched, the presence of sexual arousal or sexual gratification on the part of the person doing the touching or any other aspect of the touching, including its surrounding circumstances.¹⁰

The fourth element of Abduction for Sex will also be satisfied if the accused or another person intends to marry the complainant, whether or not the complainant consents to being so married.

What are possible defences to a charge of Abduction or Detention for a Sexual Purpose?

• The other person agreed to have sex.
• There was no intention to have sex with the other person.
• The other person wasn’t detained.
• Someone else forced you to detain the other person.
• Somebody else abducted the other person.

There are other possible defences depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.

Questions in cases like this

• How do they prove your intention to have sex with the other person?
• How do they prove that the other person didn’t consent to be with you?
• Did somebody else force you to detain someone?

“How do they prove the person was abducted?”

Maximum penalty for section 47 of the Crimes Act

The maximum penalty for this charge is level 5 imprisonment (10 years).

Sentencing

If you are found guilty of Abduction for Sex, you will normally be sentenced to gaol.

Other Information

• Victorian Sentencing Manual: Abduction for purpose of sexual penetration
• Victorian Criminal Charge Book: Legislation- General Sexual Offences Provisions

_{[1] Australian legal Information Institute. “Crimes Act 1958 – Section 47: Abduction or Detention for a Sexual Purpose.” Austlii.edu.au. http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s47.html (accessed January 30, 2020).
[2] Ibid.
[3] R v Smiles, unreported, Vic CCA, 8/3/1989; R v Kipps (1950) 4 Cox CC 167; R v Jenkins (1895) 21 VLR 113
[4] Crimes Act 1958 (Vic) s 36
[5] Crimes Act 1958 (Vic) s 36
[6] Crimes Act 1958 (Vic) s 35C
[7] Crimes Act 1958 (Vic) s 35A(1)
[8] Crimes Act 1958 (Vic) s 35A(2)
[9] Crimes Act 1958 (Vic) s 35B(1)
[10] Crimes Act 1958 (Vic) s 35B(2)}