Overview

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.

 

Defining “consent”

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:

 

OffenceMaximum term of imprisonment
Sexual assault14 years
Aggravated sexual assault20 years
Aggravated sexual assault in companyLife imprisonment

 

Frequently Asked Questions

In which court will sexual assault charges be heard?

Sexual assault charges are strictly indictable. This means that the matter will start in the Local Court, but will be heard to finalisation in the District or Supreme Court.

What are the difficulties in defending a sexual assault charge?

Sexual offences are most often committed without witnesses. This makes it particularly difficult for an accused person to defend the allegations. It is often the word of one person against another.

Another difficulty is that the complainant sometimes waits a very long time after the alleged incident to make a report to police. In some cases, they can wait for 10 or 20 years or more. This makes it hard for a sexual assault lawyer to gather evidence for the defence case.

How can I beat a sexual assault charge?

Potential defences to sexual assault charges include:

  • Denying that sexual intercourse occurred.
  • Arguing that the alleged victim consented.
  • Arguing that there were reasonable grounds to believe that the alleged victim consented.

Can a person consent to sex if they are drunk?

Under NSW law there is no clear answer to this question. If the alleged victim was intoxicated, it could be established that they did not consent to sexual intercourse. Many factors will be considered including:

  • How much the alcohol they consumed,
  • Its impact on their decision-making ability, and
  • Whether the accused had reasonable grounds to believe they were consenting.

If the person is so drunk that they can’t walk, or they are unconscious, a court is unlikely to find that they consented to sex or that the accused had reasonable grounds to believe that they consented.

What is the difference between sexual assault and other sexual offences?

Sexual assault involves the non-consensual penetration of the vagina, anus or mouth. It carries a maximum penalty of 14 years imprisonment.

Indecent assault was an offence that dealt with inappropriate touching, however in 2018 this offence was replaced by the offences of “sexual touching” and “sexual act”.

Sexual touching refers to the touching of another person where a reasonable person would consider the touching to be sexual. In determining whether the touching is sexual, the court will consider the area of the body touched and whether the touching was done for sexual arousal or gratification. The maximum penalty is five years imprisonment.

In contrast with sexual touching, the offence of sexual act does not require any physical contact between the offender and victim. The maximum penalty for this offence is 18 months imprisonment.

How can we help?

Our sexual assault lawyers are experienced in successfully defending sexual assault charges in NSW.

Book a free consultation or call us on 1300 668 484 for 24/7 legal advice.

Book a Free Consultation