Document ID: chunk:federal_register_of_legislation:C2004A00993:clause:1_2:p24
Version: federal_register_of_legislation:C2004A00993
Segment Type: clause
Provision Reference: sch 1 cl 2 (pt 24/48)
Character Range: 62222–64916

is not effected by a birth‑control measure that has a non‑permanent effect in practice; and
 (c) the perpetrator's conduct is neither justified by the medical or hospital treatment of the person or persons nor carried out with the consent of the person or persons; and
 (d) the perpetrator's conduct takes place in the context of, and is associated with, an international armed conflict.

Penalty: Imprisonment for 25 years.

 (2) In subsection (1):

consent does not include consent effected by deception or by natural, induced or age‑related incapacity.

268.64  War crime—sexual violence

 (1) A person (the perpetrator) commits an offence if:
 (a) the perpetrator does either of the following:
 (i) commits an act or acts of a sexual nature against one or more persons;
 (ii) causes one or more persons to engage in an act or acts of a sexual nature;
  without the consent of the person or persons, including by being reckless as to whether there is consent; and
 (b) the perpetrator's conduct is of a gravity comparable to the offences referred to in sections 268.59 to 268.63; and
 (c) the conduct takes place in the context of, and is associated with, an international armed conflict.

Penalty: Imprisonment for 25 years.

 (2) Strict liability applies to paragraph (1)(b).

 (3) In subsection (1):

consent means free and voluntary agreement.

The following are examples of circumstances in which a person does not consent to an act:

(a) the person submits to the act because of force or the fear of force to the person or to someone else;

(b) the person submits to the act because the person is unlawfully detained;

(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;

(d) the person is incapable of understanding the essential nature of the act;

(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);

(f) the person submits to the act because of psychological oppression or abuse of power;

(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.

threat of force or coercion includes:
 (a) a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power; or
 (b) taking advantage of a coercive environment.

 (4) In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person is consenting to the act or acts of a sexual nature.

268.65  War crime—using protected persons as shields