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Home » Criminal Law » Criminal Offences » Sexual Assault

Sexual Assault Defense in Sydney

Generally, under section 61I of the Crimes Act 1900, Sexual Assault occurs when a person has sexual intercourse with another person and does not have consent and knows that the other person does not consent.

Consent

Recent amendments to consent laws under section 61HF of the Crimes Act aim to clarify that:

 

  • Consent is not to be presumed; and
  • Consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between the persons participating in the sexual activity.

Under section 61HI of the Crimes Act, consent must be given freely and voluntarily. It should also be noted that:

 

  • Consent can be withdrawn at any time;
  • After consent has been withdrawn, the sexual activity is taken to be sexual assault;
  • Just because there is no verbal or physical resistance, it does not mean that there is consent;
  • Consent on one occasion does not amount to consent on another occasion.

Section 61HJ covers the circumstances in which there is no consent, as follows:

 

  • The person does not say or do anything to communicate consent;
  • The person does not have the capacity to consent;
  • The person is affected by drugs or alcohol;
  • The person is asleep or unconscious;
  • The person participates because of force or fear of force or fear of serious harm to the person, another person, an animal or property;
  • The person participates because of coercion, blackmail or intimidation;
  • The person participates because they are unlawfully detained;
  • The person participates because they are overcome by the abuse of a relationship of authority, trust or dependence; or
  • The person participates because they are mistaken about the nature or purpose of the sexual activity;
  • The person is mistaken as to the identity of the other person;
  • The person is fraudulently convinced to engage in sexual activity.

Knowledge about consent is covered under section 61HK, which states that a person does not consent to sexual activity if:

 

  • The accused knows the person does not have consent;
  • The accused is reckless as to whether the person actually consents;
  • The accused has a belief of consent that is not reasonable in the circumstances.

The onus is on the accused to, either before or at the time of sexual activity, find out whether the person consents to the sexual activity. This requirement does not apply if the accused can show that at the time of the sexual activity, they had:

 

  • A cognitive impairment; or
  • A mental health impairment; and
  • The impairment was the reason why the accused did not say or do anything.

In order to be found guilty of a sexual assault offence, the prosecution must prove:

 

  • That you engaged in sexual intercourse at the time and place alleged;
  • That no consent was given;
  • That you knew no consent was given or you were reckless as to consent.

The maximum penalty for sexual assault is 14 years imprisonment with a 7-year non-parole period. That is, you must serve a minimum of 7 years in prison before you can be released, regardless of what your sentence is.

Available defences to the charge of sexual assault include:

  • Consent;
  • Proper medical purpose;
  • Self-defence;
  • Necessity. 

Aggravated sexual assault – section 61J

A circumstance of aggravation is an additional factor that makes the offence more serious. Circumstances of aggravation with respect to sexual assaults are as follows:

 

  • At the time of or immediately before or after the offence, the accused person intentionally or recklessly inflicts actual bodily harm on the complainant or any other person who is present or nearby; or
  • at the time of, or immediately before or after, the commission of the offence, the accused person threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument, or
  • at the time of, or immediately before or after, the commission of the offence, the accused person threatens to inflict grievous bodily harm or to wound on the complainant or any other person who is present or nearby, or
  • the accused person is in the company of another person or persons, or
  • the complainant is under the age of 16 years, or
  • the complainant is (whether generally or at the time of the commission of the offence) under the authority of the accused person, or
  • the complainant has a serious physical disability, or
  • the complainant has a cognitive impairment, or
  • the accused person breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
  • the accused person deprives the complainant of his or her liberty for a period before or after the commission of the offence.

The maximum penalty for sexual assault in circumstances of aggravation is 20 years with a standard non-parole period of 10 years. That is, you must serve a minimum of 10 years in prison before you can be released, regardless of what your sentence is.

Available defences to the charge of aggravated sexual assault include:

  • Consent;
  • Proper medical purpose;
  • Self-defence;
  • Necessity;
  • Duress.

Aggravated sexual assault in company – section 61JA

Aggravated sexual assault in company occurs when one person engages in the act of sexually assaulting another, and the person does not know there is another person present. The circumstances of aggravation include:

 

  • at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the complainant or any other person who is present or nearby, or
  • at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument, or
  • deprives the complainant of his or her liberty for a period before or after the commission of the offence.

The maximum penalty for aggravated sexual assault in company is life. Life is taken to mean the term of someone’s natural life. There is also a minimum non-parole period of 15 years. That is, you must serve a minimum of 15 years in prison before you can be released, regardless of what your sentence is.

Available defences to the charge of aggravated sexual assault in company include:

  • Consent;
  • Proper medical purpose;
  • Self-defence;
  • Necessity;
  • Duress. 

Assault with intent to have intercourse – section 61K

Under section 61K of the Crimes Act, it is an offence to assault someone with the intent of having sexual assault with them. The offence is made out if the accused:

 

  • Intentionally or recklessly inflicts bodily harm on the other person or a third person who is present or nearby; or
  • Threatens to inflict bodily harm on the other person or a third person who is present or nearby by using an offensive weapon or instrument such as a knife or gun.

The maximum penalty for the offence of assault with intent to have intercourse is 20 years.

Available defences to the charge of assault with intent to have intercourse in:

  • Consent;
  • Proper medical purpose;
  • Self-defence;
  • Necessity;
  • Duress

It is important to note that under section 61KA of the Crimes Act, it is not a defence to any sexual assault-related offence to be married to the person towards whom the sexual activity was carried out.

Sexual touching – section 61KD

Under section 61KD of the Crimes Act, it is an offence to engage in the following conduct without consent:

 

  • Sexually touch another person; or
  • Incite another person to sexually touch you; or
  • Incite a third person to sexually touch the other person; or
  • Incite another person to touch a third person.

 

The matters to be considered when deciding if an act is sexual touching whether:

  • the area of the body touched or doing the touching is the person’s genital area, anal area or – in the case of a female person or a transgender or intersex person identifying as female – the person’s breasts, or
  • the defendant’s actions are for sexual arousal or sexual gratification, or
  • any other aspect of the touching, or the circumstances surrounding the touching, make it sexual.

Touching is not sexual if it was carried out for genuine medical or hygienic purposes.

 

For a person to be guilty of sexual touching, the prosecution must prove:

  • That the defendant touched the complainant or incited another to do so,
  • That the touching was sexual,
  • That consent was not given to the touching, and
  • That the defendant knew consent was not given or was reckless as to whether consent was given.

The maximum penalty for the offence of sexual touching is 5 years imprisonment. If the matter is dealt with in the Local Court, the maximum penalty is 2 years imprisonment and/or 50 penalty units ($5,500.00).

Defences for the offence of sexual touching include:

  • Self-defence;
  • Necessity;
  • Duress;
  • Proper medical purpose;
  • Lawful correction of a minor.

Aggravated sexual touching – section 61KC

Under section 61KF it is an offence to engage in the following in circumstances of aggravation:

 

  • Sexually touch another person; or
  • Incite another person to sexually touch you; or
  • Incite a third person to sexually touch the other person; or
  • Incite another person to touch a third person.

Circumstances of aggravation for the purposes of this section include:

  • Being in the presence of at least one other person; or
  • The other person was under the authority of the accused;
  • The person who was touched has a serious physical disability;
  • The person who was touched has a cognitive impairment.

In order to be found guilty of aggravated sexual touching, the prosecution must prove:

  • The accused touched the person or incited another to do so;
  • The touching was sexual;
  • The consent was not given to the touching;
  • The defendant knew that consent was not given or was reckless as to whether consent was given; and
  • One circumstance of aggravation exists.

The maximum penalty for aggravated sexual touching is 7 years imprisonment with a 5 year non-parole period. That is, you must spend a minimum of 5 years in prison before you can be released. If your matter is dealt with in the Local Court the maximum penalty is 2 years imprisonment and/or 100 penalty units ($11,000.00).

Defences for the offence of aggravated sexual touching include:

  • Self-defence;
  • Necessity;
  • Duress;
  • Proper medical purpose;
  • Lawful correction of a minor.

Sexual Act – Section 61KE

Under section 61KE of the Crimes Act, it is an offence to engage in the following conduct without consent:

 

  • Carrying out a sexual act without the consent of the other person;
  • Incite the other person to carry out a sexual act with or towards you;
  • Incite a third person to carry out a sexual act with or towards the other person;
  • Incite the other person to carry out a sexual act, with or towards the other person.

 

Under section 61HC of the Crimes Act, a sexual act is defined as an act carried out in circumstances where a reasonable person would consider the act to be sexual. Matters for the Court to consider when deciding whether a reasonable person would consider an act to be sexual include:

 

  • the area of the body touched or doing the touching is the person’s genital area, anal area or – in the case of a female person or a transgender or intersex person identifying as female – the person’s breasts, or
  • the defendant’s actions are for sexual arousal or sexual gratification, or
  • any other aspect of the touching, or the circumstances surrounding the touching, make it sexual.

Touching is not sexual if it was carried out for genuine medical or hygienic purposes.

 

Conduct that may constitute a sexual act includes:

 

  • masturbating in front of the other person;
  • inciting the other person to masturbate;
  • carrying out a simulated sexual act; or
  • inciting the other person to carry out a simulated sexual act.

In order to be found guilty of sexual touching, the prosecution must prove:

 

  • That the accused carried out a sexual act towards the other person, incited a third person to do so or incited the other person to carry out a sexual act,
  • That the other person did not consent, and
  • That the accused knew consent was not given or was reckless as to whether consent was given.

The maximum penalty for carrying out a sexual act is 18 months imprisonment.

Defences for the offence of a sexual act include:

  • Self-defence;
  • Necessity;
  • Duress;
  • Proper medical purpose;
  • Lawful correction of a minor.

Aggravated sexual act – section 61KF

Under section 61KF of the Crimes Act, it is an offence to engage in the following under circumstances of aggravation:

 

  • Carrying out a sexual act without the consent of the other person;
  • Incite the other person to carry out a sexual act with or towards you;
  • Incite a third person to carry out a sexual act with or towards the other person;
  • Incite the other person to carry out a sexual act, with or towards the other person.

 

For the purposes of this section, circumstances of aggravation include:

 

  • Being in the presence of at least one other person; or
  • The other person was under the authority of the accused;
  • The person who was touched has a serious physical disability;
  • The person who was touched has a cognitive impairment.

 

In order to be found guilty of aggravated sexual touching, the prosecution must prove:

 

  • That the accused carried out a sexual act towards the other person, incited a third person to do so or incited the other person to carry out a sexual act;
  • That the other person did not consent; and
  • That the accused knew consent was not given or was reckless as to whether consent was given.
  • One circumstance of aggravation exists.

The maximum term of imprisonment for an aggravated sexual act is 3 years imprisonment. If the matter is dealt with in the Local Court, the maximum penalty is 2 years imprisonment and/or 50 penalty units ($5,500.00).

Available defences for the offence of aggravated sexual touch include:

 

  • Self-defence;
  • Necessity;
  • Duress;
  • Proper medical purpose;
  • Lawful correction of a minor.

If you have been charged with a sexual assault offence in NSW, you should speak to our sexual assault lawyer in Sydney. 

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