Document ID: chunk:federal_register_of_legislation:C2004A00993:clause:1_2:p35
Version: federal_register_of_legislation:C2004A00993
Segment Type: clause
Provision Reference: sch 1 cl 2 (pt 35/48)
Character Range: 89948–92667

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.

 (3) 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.

268.85  War crime—forced pregnancy

 (1) A person (the perpetrator) commits an offence if:
 (a) the perpetrator unlawfully confines one or more women forcibly made pregnant; and
 (b) the perpetrator intends to affect the ethnic composition of any population or to destroy, wholly or partly, a national, ethnical, racial or religious group as such; and
 (c) the perpetrator's conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.

Penalty: Imprisonment for 25 years.

 (2) In subsection (1):

forcibly made pregnant includes made pregnant by a consent that was affected by deception or by natural, induced or age‑related incapacity.

 (3) To avoid doubt, this section does not affect any other law of the Commonwealth or any law of a State or Territory.

268.86  War crime—enforced sterilisation

 (1) A person (the perpetrator) commits an offence if:
 (a) the perpetrator deprives one or more persons of biological reproductive capacity; and
 (b) the deprivation 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 armed conflict that is not an international armed conflict.

Penalty: Imprisonment for 25