Sexual Offences

What is Sexual Assault?

Sexual Intercourse without consent is contained within s61I Crimes Act 1900. To prove a sexual assault the police and prosecution will need to prove 3 main elements:

1. That there was sexual intercourse; and
2. That is was without the other persons consent; and
3. That they knew the other person wasn’t consenting.

The maximum penalty for this offence is 14 years imprisonment. There is also a standard non-parole period of 7 years.

Assaulting someone with the intention to have sexual intercourse, or attempting to have sexual intercourse without consent are very serious, related offences.

You can view our recent results for sexual assault cases or see our pages on:

• Aggravated Sexual Assault
• Indecent Assault
• Sexual Assault
• Sexual Touching
• Sexual Intercourse with Child
• Child Pornography
• Possess Child Abuse Material
• Child Grooming
• Distribute Intimate Image Without Consent
• Record Intimate Image Without Consent

Aggravated Sexual Assault Offences

Sexual offences can be aggravated by certain kinds of conduct, which can be found in s61J and 61JA Crimes Act 1900.

Aggravated Sexual Assault has a maximum of 20 years imprisonment.

Aggravated Sexual Assault in company has a maximum penalty of life imprisonment.

Circumstances of aggravation are:

• 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,
• 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,
• the alleged offender is in the company of another person or persons,
• the alleged victim is under the age of 16 years
• the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender
• the alleged victim has a serious physical disability
• the alleged victim has a cognitive impairment
• 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
• the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

What is consent?

Consent is defined in is defined in section 61HA Crimes Act 1900.

A person is consenting to sexual intercourse if they freely and voluntarily agree to the sexual intercourse.

If it is being alleged that the sexual intercourse wasn’t consensual, then it is the prosecutions burden to prove:

• that the defendant knew the other person wasn’t consenting; or
• that the defendant was reckless as to whether or not they were consenting; or
• there was no reasonable basis to believe the other person was consenting.

What is sexual intercourse?

Sexual intercourse is defined in section 61H Crimes Act 1900 as:

• A sexual connection occasioned by penetration to any extent of the genitals of a female person or the anus of any person
  • By any part of the body of another person
  • Or by any object manipulated by another person
• Oral sex

Will I go to Jail?

If found guilty, or if you plead guilty then full time imprisonment is the most likely outcome. Only in very rare and exceptional cases are people able to avoid jail after a finding of guilt.

Which court will hear the matter?

All matters start in the Local Court. Sexual Assaults are strictly indictable offences which means that after a plea of guilty or not guilty is entered, they must be committed to the District Court for either a sentence hearing or a Trial.

Trials are conducted in front of juries and it can be a long and arduous process.

 

Consent

Consent is a legal defence for sexual assault offences.

Section 61HE of the Crimes Act 1900 sets out the definition of consent for sexual offences:

“A person consents to sexual activity if they freely and voluntarily agree to the sexual activity.”

Other than proving simply that a person did not agree, some other grounds on which it can be established that a person does not consent to sexual contact include:

1. The alleged victim was substantially intoxicated by drugs or alcohol; or,
2. The consent was elicited through intimidation, coercion, or threats of force; or,
3. The consent was elicited through abuse of a position of authority or trust.

 

A person cannot consent to sexual contact if:

1. They do not have capacity to consent because of their age (ie. Under 16 years of age or under 18 years of age if a ‘special care relationship’) or cognitive incapacity;
2. They are asleep or unconscious;
3. They have consented because of threats or they are unlawfully detained.

 

A person has “knowledge” about lack of consent to the sexual contact if:

1. The person knows the alleged victim does not consent; or,
2. The person is reckless as to whether the alleged victim consents; or,
3. the person has no reasonable grounds for believing the alleged victim consents.

 

Importantly, a court will take into account all of the circumstances, including any steps you took to determine whether the alleged victim consented.

Consent is a very complex area of law. The stakes for sexual offences are extremely high – if you are found guilty there is a strong chance you will receive a jail sentence.

That is why it is important that you have Australia’s best criminal lawyers by your side. Our specialist sexual assault lawyers understand the stigma that comes with such allegations and the impact it can have on your employment and family life.

It is crucial to speak to an accredited specialist in criminal law early so that we can begin working on your case. We are regularly able to negotiate with Police and the DPP to have the charges withdrawn.

Contact us now and speak to our friendly team today.