Legal definitions of common terms about sexual, domestic and family violence

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Legal definitions of common terms about sexual, domestic and family violence

Legal definitions in NSW law

Every jurisdiction in Australia has its own legislation for sexual, domestic and family violence offences. As Rape & Domestic Violence Services is located in NSW, the information below relates to NSW law.

If you would like information regarding legal definitions in your state or territory, we recommend referring to the website for the police force in your region.

Domestic violence:

The legal definition of domestic violence can be a little confusing. The definition in the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is in fact for a 'domestic violence offence'. The NSW Government has established an alternative definition which is applied by all government agencies including police, NSW Health, and the NSW Department of Communities & Justice (previously known as Family and Community Services or FACS). We have provided both definitions here.

Domestic and/or family violence:

Domestic and family violence is any behaviour in an intimate or family relationship which is violent, threatening, coercive or controlling, causing a person to live in fear.

It takes many forms and involves violent, abusive or intimidating behaviour carried out by a partner, carer or family member to control, dominate, humiliate or instil fear.

Domestic and/or family violence is a violation of human rights and is a crime. It affects people from all backgrounds and age groups.

Domestic violence offence:

This is defined in the Crimes (Domestic & Personal Violence Act), 2007 (NSW) as an offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship, being:

(a) a personal violence offence, or

(b) an offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen, or

(c) an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both).

Assault:

There are a number of different categories of assault in the NSW Crimes Act *. The definition of assault itself has been defined in case law. As a guide, assault refers to any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence or the actual infliction of unlawful force on another.

Apprehended Violence Order:

An Apprehended Violence Order, sometimes called an AVO, is an order made under civil law to prevent one person from engaging in certain behaviours in the presence of or towards another.

There are two types of AVOs, Apprehended Domestic Violence Orders (ADVOs) and Apprehended Personal Violence Orders (APVOs). An ADVO protects people from people with whom they have a domestic relationship. An APVO protects people from people with whom they do not have a domestic relationship.

Sexual Assault:

Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

Rape:

In NSW, the term rape is no longer used in the legal system. It has been replaced by the term sexual intercourse without consent. Rape is a term still used in the community which describes the forced penetration of the vagina or anus of any person with any part of the body of another person, or any object, against their will or consent.

Sexual intercourse:

(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by -

(i) any part of the body of another person, or

(ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or

(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or

(c) cunnilingus.

Sexual touching:

Any person who without the consent of another person and knowing that the alleged victim does not consent intentionally:

(a) sexually touches the alleged victim, or

(b) incites the alleged victim to sexually touch the alleged offender, or

(c) incites a third person to sexually touch the alleged victim, or

(d) incites the alleged victim to sexually touch a third person.

Consent:

The legal definition of consent is in fact quite complex. You can read the definition in full here. In brief, consent is when person freely and voluntarily agrees to the sexual activity

A person cannot give consent if:

  • They are under the age of consent;
  • They changed their mind and were ignored / the sexual contact continued;
  • They are so affected by drugs or alcohol that they are incapacitated;
  • They are unconscious or asleep;
  • They were threatened or coerced;
  • They are unable to give consent e.g. Because of a disability or impairment, because of their age, or because the other person holds a position of power or authority over them.

Adult:

A person over the age of 16

Child:

A person under the age of 16

Persistent sexual abuse of a child:

An adult who maintains an unlawful sexual relationship with a child is guilty of an offence (Crimes Act,1900).

Unlawful sexual relationship:

'Unlawful sexual relationship' is a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period (Crimes Act,1900).

Grooming:

An adult person is grooming if they:

(a) engage in any conduct that exposes a child to indecent material or provides a child with intoxicating substance/s or with any financial or other material benefit;

(b) do so with the intention of making it easier to procure the child for unlawful sexual activity with them or any other person.

They are also grooming if they:

(a) provide a person (other than a child) with any financial or other material benefit, and

(b) Do so with the intention of making it easier to procure a child who is under the authority of the person for unlawful sexual activity with the adult person or any other person (Crimes Act,1900).

Child abuse material:

(Sometimes mistakenly called 'child pornography')

This is material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:

(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or

(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or

(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or

(d) the private parts of a person who is, appears to be or is implied to be, a child

(Crimes Act,1900)

Civil law:

Civil law addresses disputes between two private parties. The burden of proof in civil proceedings is on the plaintiff (the person who is seeking action) bringing the case in front of the court.

This person must prove their allegations on the balance of probabilities (i.e. they must prove that something is more likely than not to have happened). AVOs come under civil law and therefore do not form part of a person’s criminal record. Breaches of AVO, however, are criminal acts and would be dealt with under criminal law.

Criminal law:

Sexual assault and some domestic and family violence offences (e.g. breach of a domestic and family violence protection order or assault charges) are crimes in Australia.

Most sexual assault and/or domestic and family violence related offences are dealt with under criminal laws (The Crimes Act 1900). In criminal proceedings, the prosecution must prove the person accused is guilty beyond reasonable doubt (i.e. there is no other reasonable or logical explanation other than that the accused is guilty).

* Crimes Act, 1900 N 40 (NSW), Division 10, Sexual Crimes Against Adults and Children