Victorian Numbered Acts

CRIMES AMENDMENT (SEXUAL OFFENCES) ACT 2016 (NO. 47 OF 2016) - SECT 3

For Subdivision (5) of Division 1 of Part I of the Crimes Act 1958 substitute —

" (5) Corpses

        34B     Sexual activity with the corpse of a human being

    (1)     A person (A) commits an offence if—

        (a)     A intentionally engages in an activity involving the corpse of a human being; and

        (b)     the activity is sexual.

    (2)     A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

    (3)     For the purposes of subsection (1)—

        (a)     an activity is sexual if it would involve sexual penetration as defined by section 35A were the corpse a person;

        (b)     an activity may be sexual due to—

              (i)     the area of A's body or of the corpse involved in the activity, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female, the breasts; or

              (ii)     the fact that A seeks or gets sexual arousal or sexual gratification from the activity; or

              (iii)     any other aspect of the activity, including the circumstances in which it takes place.

Notes

1     Exceptions apply to this offence—see section 34BD.

2     A mistaken but honest and reasonable belief that the activity was not sexual is not a defence to this offence—see section 34BE.

        34BA     Removal of body parts from the corpse of a human being

    (1)     A person (A) commits an offence if A intentionally removes a body part from the corpse of a human being.

    (2)     A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

Note

Exceptions apply to this offence—see section 34BD.

        34BB     Offensive conduct involving human remains

    (1)     A person (A) commits an offence if—

        (a)     A intentionally engages in conduct involving human remains; and

        (b)     the conduct is offensive.

    (2)     A person who commits an offence against subsection (1) is liable to level 7 imprisonment (2 years maximum).

    (3)     An offence against subsection (1) is a summary offence.

    (4)     For the purposes of subsection (1), conduct is offensive if, in all the circumstances,
it is likely to arouse significant anger, resentment, outrage, disgust or repulsion in the minds of reasonable persons.

    (5)     In this section—

"human remains" has the same meaning as in the Cemeteries and Crematoria Act 2003 .

Notes

1     Exceptions apply to this offence—see section 34BD.

2     A mistaken but honest and reasonable belief that the conduct was not offensive is not a defence to this offence—see section 34BE.

        34BC     Location of corpse or human remains immaterial

    (1)     For the purposes of sections 34B and 34BA, it is immaterial whether the corpse is in a public cemetery within the meaning of the Cemeteries and Crematoria Act 2003 or at any other place.

    (2)     For the purposes of section 34BB, it is immaterial whether the human remains are in a public cemetery within the meaning of the Cemeteries and Crematoria Act 2003 or at any other place.

        34BD     Exceptions

A does not commit an offence against a provision of this Subdivision if A's conduct occurs in the course of—

        (a)     a procedure carried out in good faith for the purpose of preparing the corpse or human remains for cremation or for interment within the meaning of the  Cemeteries and Crematoria Act 2003 ; or

        (b)     any other lawful procedure carried out in good faith for medical, hygienic, scientific, forensic or law enforcement purposes.

Note

The reference to A in this section is a reference to the same A referred to in the offence provisions in this Subdivision.

        34BE     No defence of mistaken but honest and reasonable belief that activity was not sexual or conduct was not offensive

It is not a defence to a charge that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that—

        (a)     for an offence against section 34B(1)—the activity was not sexual; or

        (b)     for an offence against section 34BB(1)—the conduct was not offensive.

Note

The reference to A in this section is a reference to the same A referred to in the offence provisions in this Subdivision.".