Sexual Intercourse Without Consent

In the ACT, it is a very serious criminal offence to engage in non-consensual sexual intercourse with another person. The maximum penalty for an offence of sexual intercourse without consent is 12 years’ imprisonment. 

However, the maximum penalty for an offence is increased in the following circumstances:

1. If the person is in the company of another when they engage in the sexual intercourse the maximum penalty is increased to 14 years’ imprisonment. 
2. If it is an aggravated offence, which is where the offence involves family violence, the penalty is increased to 15 years’ imprisonment. 
3. If it is an aggravated offence, and the person acted in the company of another, the maximum penalty is increased to 18 years’ imprisonment.  

What is sexual intercourse without consent?

Pursuant to section 54 of the Crimes Act 1900 (ACT), sexual intercourse without consent is committed when a person has sexual intercourse with another person and they know that the other person was not consenting to the intercourse. 

Sexual intercourse is defined in the legislation as the penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person, or with an object, or the introduction of any part of the penis of a person into the mouth of another person. The definition also includes fellatio and cunnilingus. 

Consent is also defined under section 50B of the Crimes Act 1900 as “informed agreement to the sexual act that is freely and voluntarily given and communicated by saying or doing something”. 

The following acts constitute sexual intercourse without consent:

• Inserting a finger into a person’s vagina after they have said no;
• Having penile-vaginal intercourse with a person who is asleep; 
• Inserting an object into a person’s anus when they said that they did not want to. 

What must be proven?

For a person to be found guilty of sexual intercourse without consent the prosecution must prove each of the following matters beyond a reasonable doubt:

• You engaged in an act with another person; and 
• The act constituted sexual intercourse; and
• The complainant did not consent to the intercourse; and 
• You knew the complainant did not consent, or were reckless as to whether the complainant consented, to the 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?

This offence is Strictly Indictable, which means that it 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 for Sexual Intercourse Without Consent

The following defences may be available for a sexual intercourse without consent charge:

• To maintain your innocence if you did not commit the act; 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;
• If the sexual intercourse is alleged to have been engaged in while acting in company with someone else, to argue that the sexual intercourse was not engaged in while acting in company with that person.

Common Questions about sexual intercourse without consent

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 intercourse without consent 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 incest 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 intercourse without consent charge?

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