What is sexual assault?
Sexual assault includes a wide range of sexual offences, not only rape.
Sexual assault is a crime under section 61I of the Crimes Act 1900 (NSW). It occurs when a person has:
- Sexual intercourse with a person,
- Without that person’s consent, and
- They know that the other person does not consent.
If a sexual assault takes place in “circumstances of aggravation” or “in company”, a person may instead by charged with aggravated sexual assault under section 61J or aggravated sexual assault in company under section 61JA of the Act.
Elements of sexual assault charges in NSW
Defining “sexual intercourse”
Sexual intercourse is “sexual connection” caused by the penetration of the vagina or anus by any part of another person’s body, or any object. It also includes oral sex.
A person consents to a sexual activity if they freely and voluntarily agree. The Crimes Act lists situations where an individual does not consent. These include where the person:
- Does not have the capacity to consent (this includes if they are under the age of 16 or have a cognitive incapacity).
- Is unconscious or asleep.
- Consents because of threats of force or terror.
- Consents to the sexual activity because they have been restrained.
Knowledge of consent
The prosecution also needs to prove that the accused knew their victims did not consent. But again, this is defined broadly. Knowledge of consent includes where the accused:
- Knew that the person did not consent,
- Was reckless about whether the person consented, or
- Had no reasonable grounds for believing that the other person consented.
Being reckless would include where the accused was aware that the other person might not be consenting, but performed the sexual act anyway.
The prosecution does not have to prove that the victim explicitly said “no”. Rather, they must show that the accused didn’t have “reasonable grounds” to think that the other person was consenting.
What are the charges for sexual assault?
Most people convicted of a sexual assault offence receive a prison sentence. Representation by an experienced sexual assault lawyer is highly recommended.
The maximum penalties are as follows:
|Offence||Maximum term of imprisonment|
|Sexual assault||14 years|
|Aggravated sexual assault||20 years|
|Aggravated sexual assault in company||Life imprisonment|