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Aggravating circumstances

Legislation should include a description of aggravating circumstances. These circumstances should result in increased penalties upon conviction. (See: UN Handbook, 3.11.1)

Examples of aggravating circumstances include: 

  • the age of the survivor;
  • relationship between perpetrator and survivor;
  • use or threat of use of violence;
  • if the survivor suffered mental or physical injury as a result of the assault; 
  • multiple perpetrators or accomplices;
  • use or threat of use of weapons;
  • if the survivor is physically or mentally impaired; and
  • multiple acts of sexual assault.

(See: UN Handbook 3.4.3.1; Gender-Based Violence Laws in Sub-Saharan Africa, p. 26.)

 

Example: the Crimes Act (1900) of New South Wales, Australia, includes the following description of "aggravated sexual assault."

61J Aggravated sexual assault
(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.

(2) In this section, "circumstances of aggravation" means circumstances in which:

(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
(b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
(c) the alleged offender is in the company of another person or persons, or
(d) the alleged victim is under the age of 16 years, or
(e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(f) the alleged victim has a serious physical disability, or
(g) the alleged victim has a cognitive impairment, or
(h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
(i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence. Article 61J

 

Example: Criminal Code Act (1974) of Papua New Guinea states that circumstances of aggravation may include circumstances not described in the legislation. 349A.