Sexual offences are extremely serious in nature, like most other categories of offences, the scope of sexual offences in New South Wales is extremely broad and the punishment varies significantly.

In these serious and highly complex matters, it is crucial that you get advice from an experienced criminal lawyer to help you get the best result possible.

SEXUAL ASSAULT

THE OFFENCE:

Section 61l of the Crimes Act 1900 (NSW) provides that any person who has sexual intercourse without the consent of another person and knows that the other person does not consent is guilty of an offence.

The prosecution must prove the following elements beyond a reasonable doubt in order to convict a person of this offence:

  • That the accused person engaged in sexual intercourse with the alleged victim
  • That the alleged victim did not consent; and
  • That the offender knew that the victim did not consent or was reckless as to consent

AGGRAVATED SEXUAL ASSAULT

THE OFFENCE:

Section 61J of the Crimes Act 1900 (NSW) provides an aggravated offence. The prosecution must prove the following elements beyond a reasonable doubt in order to convict a person of this offence:

  • That the accused person engaged in sexual intercourse with the alleged victim
  • That the alleged victim did not consent; and
  • That the offender knew that the victim did not consent or was reckless as to consent
  • That the sexual intercourse without consent was committed in a circumstance of aggravation.

THE DEFINITIONS OF SEXUAL ASSAULT

SEXUAL INTERCOURSE

Sexual Intercourse is defined by section 61HA of the Crimes Act 1900 (NSW) as any of the following:

  • Sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
  • Any part of the body of another person; or

ii.    Any object manipulated by another person

    Except where the penetration is carried out for proper medical purposes, OR

  • Sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
  • Cunnilingus; or
  • The continuation of sexual intercourse as defined in paragraphs (a), (b), or (c)

CONSENT

Consent is perhaps one of the most complex legal definitions of law. The legal definition is comprehensively provided by section 61HE of the Crimes Act 1900 (NSW) at the most basic level, consent is a free and voluntary agreement to engage in sexual activity.

Section 61HE (5) of the Crimes Act 1900 (NSW) provides a list of matters which would automatically negate consent. Therefore, if the prosecution can establish that one of the following circumstances existed then the alleged victim is taken to have not consented to the sexual intercourse.

  • If the person did not have the capacity to consent to the sexual activity including because of age or cognitive incapacity, or
  • If the person does not have the opportunity to consent to the sexual activity because they are unconscious or asleep, or
  • If the person consents to the sexual activity because of threats of force or terror (whether the threats are against or the terror is instilled in that person or another person), or
  • If the person consents to the sexual activity because the person is unlawfully detained

Further to this, section 61HE (6) of the Crimes Act 1900 (NSW) provides a list of matters which under any of the following mistaken beliefs would automatically prove that consent did not occur

  • A mistaken belief as to the identity of the other person
  • A mistaken belief that the other person is married to the person
  • A mistaken belief that the sexual activity is for health or hygienic purposes
  • Any other mistaken belief about the nature of the activity induced by fraudulent means

It should be noted also that a person who does not offer any physical resistance to a sexual activity is not by reason of only that fact to be regarded as consenting to the sexual activity (section 61HE (9) Crimes Act 1900 (NSW))

KNOWLEDGE OF CONSENT

The third element of the offence of sexual assault provides that an accused must know that the victim did not consent or was reckless as to consent. Section 61HE(3) provides that an accused person is taken to have knowledge of the alleged victim’s lack of consent if

  • The person knows that the alleged victim does not consent; or
  • The person is reckless as to whether the alleged victim consents; or
  • The person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.

It is also important to note that the accused person is taken to know that the alleged victim does not consent to the sexual activity if the accused knows the person consents to the sexual activity under such a mistaken belief (Section 61HE(7) Crimes Act 1900 (NSW).

CIRCUMSTANCE OF AGGRAVATION

For the purposes of the offence of aggravated sexual assault, there is a requirement that the offence be committed in circumstances of aggravation, section 61J(2) of the Crimes Act 1900 (NSW) provides nine different circumstances of aggravation for the purpose of this offence. They are:

  • The accused intentionally or recklessly inflicts actual bodily harm on the alleged victim
  • The accused person threatens to inflict actual bodily harm on the alleged victim or another person by means of an offensive weapon

B1) The accused person threatens to inflict grievous bodily harm or wounding on the

       alleged victim or anyone nearby

  • The accused person commits the offence in company
  • The alleged victim is under the age of 16 years
  • The alleged victim is 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 or other building with the intention of committing the offence or any other serious indictable offence
  • The alleged offender deprives the alleged victim of their liberty.

SEXUAL TOUCHING

THE OFFENCE

Section 61KC of the Crimes Act 1900 (NSW) prescribes an offence for sexual touching, this offence is a less serious offence than sexual assault but is still extremely serious, it aims to criminalise conduct that is non-consensual physical contact of a sexual nature with another person. The prosecution must prove the following elements beyond a reasonable doubt in order to convict a person of this offence:

  • The accused person did one of the following:
    • Sexually touches the alleged victim
    • Incites the alleged victim to sexually touch the accused person
    • Incites a third person to sexually touch the alleged victim; or
    • Incites the alleged victim to touch a third person
  • The touching was sexual
  • That consent was not given to the touching
  • That the defendant knew consent was not given or was reckless as to whether consent was given.

THE DEFINITIONS OF SEXUAL TOUCHING

Sexual touching is defined by section 61HB of the Crimes Act 1900 (NSW), It means a person touching another person either:

  • with any part of the body or something else, or
  • Through anything including anything worn by the person doing the touching or the person being touched

In circumstances where a reasonable person would consider the touching to be sexual

The matters that are taken into account in deciding whether a reasonable person would consider the touching to be sexual include:

  • Whether the area of the body touched or doing the touching is the person’s genital area or anal area or in the case of a female, the person’s breasts
  • Whether the person doing the touching does so for the purpose of obtaining sexual arousal
  • Whether any other aspect of the touching makes it sexual.

THE PENALTIES FOR SEXUAL ASSAULT

The offences as described above are extremely serious in nature, each offence carries with it a different penalty. For all offences dealt with in the local court, the maximum penalty is 2 years imprisonment. For matters dealt with in the District or Supreme Court (on indictment), the maximum penalty is as displayed below.

OFFENCE

Summarily dealt with

Dealt with on Indictment

Sexual Touch

2 years imprisonment; AND/OR

$5,500 fine

5 years imprisonment

Sexual Assault

N/A

14 years imprisonment

Aggravated sexual assault

N/A

20 years imprisonment

The maximum penalties are reserved for the “worst category” of offenders (Veen v The Queen (No 2) (1988) 164 CLR 465 at 478) and are not commonly utilised by the court. A court has the discretion to sentence an offender in accordance with the Crimes (Sentencing Procedure) Act 1998 (NSW).

SEXUAL ASSAULT DEFENCES

CONSENT

The most substantive issue in most cases where sexual offences are alleged is the issue of consent. If an accused person can create reasonable doubt that the alleged victim consented to the sexual intercourse, then they will be found not guilty of the offence.

DURESS

The defence of duress is available in circumstances where the accused person is threatened in a way where they are forced to commit a crime against their will. It requires four things to be shown, once the defence is raised, the prosecution must disprove beyond reasonable doubt that the defendant was not acting under duress:

  • An actual threat was made to the accused
  • The threat was serious enough to justify the accused’s actions
  • The threat was acting on the mind of the accused at the time of the offence
  • The threat was continuing

NECESSITY

The defence of necessity is available in circumstances where the accused is incited in some way (often by a threat or identification of potential harm) to break the law to avoid even more dire consequences. The defendant must show the following (R v Loughnan [1981] VR 443 at [448]:

  • The criminal act must have been done in order to avoid consequences of irreparable evil upon the accused or others whom they were bound to protect
  • The accused must honestly have believed on reasonable grounds that they were placed in a situation of imminent peril; and
  • The acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided

SEXUAL ASSAULT CASE STUDIES

  • Our client was charged with the sexual assault of his daughter and was facing a life term of imprisonment. Our client denied the allegation and the matter proceeded to trial at the Sydney District Court. After a 7-day trial, the jury delivered a unanimous verdict of NOT GUILTY.
  • Our client was charged with the sexual assault of a friend and was facing a term of 14 years imprisonment. Our client denied the allegation. On the morning of the matter listed for Trial at Penrith District Court, the Director of Public Prosecution agreed with our proposal to withdraw the charge. The charge was withdrawn and dismissed.
  • Our client was charged with the sexual assault of his girlfriend. Our client denied the allegation and the matter proceeded to trial at Parramatta District Court.  Our client was acquitted of the charge by a jury of 12 members after a 5-day trial.

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