Sexual Assault

In the ACT, it is an offence to sexually assault a person. The maximum penalties for sexual assault vary depending on the type of conduct alleged to have been committed. The relevant sexual assault offence is determined by whether the assault (or infliction of harm) is in the first, second, or third degree. 

The maximum penalty for each offence is also increased if the offence involves family violence (aggravated) or carried out in the company of another person, or persons. 

The penalties for each type of sexual assault offence are categorised as follows:

What is Sexual Assault?

Pursuant to sections 51, 52 and 53 of the Crimes Act 1900 (ACT), an offence of sexual assault is categorised in the first, second and third degree. 

Sexual assault is the act of engaging in sexual intercourse with another person who does not consent, and at the time of, or immediate before the intercourse, a person inflicts, or threatens to inflict, harm on a person to engage in the sexual intercourse. The harm can be inflicted, or threatened, on the person who it is intended to engage in the sexual intercourse, or a third person. 

First Degree 

Sexual assault in the first degree occurs where a person inflicts grievous bodily harm on another person with the intent to engage in sexual intercourse with that other person, or on a third person who is present or nearby. 

Second Degree

Sexual assault in the second degree occurs where a person inflicts actual bodily harm on another person with the intent to engage in sexual intercourse with that other person, or on a third person who is present or nearby. 

Third Degree

Sexual assault in the third degree occurs where a person assaults, or threatens to inflict grievous or actual bodily harm on, another person with the intent to engage in sexual intercourse with that other person, or on a third person who is present or nearby. 

The following acts constitute sexual assault:

• Breaking a person’s arm in order to engage in sexual intercourse with that person (sexual assault in the first degree); 
• Punching someone in the face, and causing a black eye, in order to have sexual intercourse with a person (sexual assault in the second degree); 
• Threatening to burn a person with fire if they do not engage in sexual intercourse (sexual assault in the third degree) 

What must be proven?

For a person to be found guilty of sexual assault the prosecution must prove each of the following matters beyond a reasonable doubt:

Sexual assault in the first degree:

• You inflicted an injury on a person; and 
• The injury amounts to grievous bodily harm; and 
• You intended to engage in sexual intercourse with that person; and 
• You engaged in sexual intercourse. 

Sexual assault in the second degree:

• You inflicted an injury on a person; and 
• The injury amounts to actual bodily harm; and 
• You intended to engage in sexual intercourse with that person; and 
• You engaged in sexual intercourse. 

Sexual assault in the third degree:

• You assaulted, or threatened to inflict harm on, another person; and 
• The threat of harm amounted to grievous or actual bodily harm; and 
• You intended to engage in sexual intercourse with that person; and 
• You engaged in sexual intercourse. 

If the prosecution do not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

These offences are Strictly Indictable, which means that they must be finalised (either by way of a trial or sentence) in the Supreme Court. The matter will still start in the Magistrates Court and will then eventually be Committed to the Supreme Court.

Possible Defences to sexual assault

The following defences may be available for a sexual assault charge:

• To maintain your innocence that you did not commit the act; or 
• You did not harm or assault the person to engage in sexual intercourse; or
• The harm suffered did not amount to grievous or actual bodily harm; or
• The act did not constitute sexual intercourse; or 
• The person consented to engaging in sexual intercourse; or
• You were not reckless as to whether the person consented. 

Common Questions about sexual assault

Will I receive a criminal conviction?

A conviction and criminal record for this offence is almost certain.

In the ACT, a court can impose any of the following penalties for a sexual assault charge:

• Full-time imprisonment
• Intensive Corrections Order (ICO)
• Suspended Sentence 
• Fine
• Good Behaviour Order 
• Non-conviction 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for sexual assault might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover, a conviction for an offence of a sexual nature can completely rule out certain career paths such as teaching and a range of government employment options. Sexual offences also often result in sentences that include imprisonment even where a person has no previous convictions. 

Will I go to gaol for a sexual assault charge?

The offence carries a maximum penalty of full-time imprisonment. It is almost certain that you will be sentenced to a term of imprisonment if you are found guilty of, or plead guilty to, this offence, even if you do not have any prior criminal convictions. 

What is Sexual Intercourse?

Sexual intercourse is defined in section 50 of the Crimes Act 1900 as:

• The penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
• The penetration, to any extent, of the genitalia or anus of a person by an object, being penetration carried out by another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
• The introduction of any part of the penis of a person into the mouth of another person; or
• Fellatio; or
• Cunnilingus; or
• The continuation of sexual intercourse as defined in any of the above.

Where:

• ‘Genitalia’ includes surgically constructed or altered genitalia; and
• ‘Object’ includes an animal.

What is Grievous Bodily Harm?

Grievous bodily harm generally refers to an injury that results in the permanent or serious disfiguration of a person or “really serious injury”. For example: a fractured eye socket involving surgical intervention. For a pregnant woman, it can also include loss or serious harm to the pregnancy. 

What is Actual Bodily Harm?

Actual bodily harm requires that a visible injury be present, for example a bruise or scratch. The injury does not need to be permanent, but “must be more than merely transient or trifling”.

The dictionary contained in the Crimes Act 1900 extends the definition to include actual bodily harm to a pregnant woman, which includes harm to the pregnancy. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.