Sexual Intercourse Without Consent


In the ACT, there are a number of charges that relate to sexual intercourse, the most common of which is ‘sexual intercourse without consent’. The maximum penalty for this offence ranges from 12 years to 14 years imprisonment, depending whether the sexual intercourse was engaged in while acting alone or in company with someone else.

The Offence of Sexual Intercourse Without Consent

Sexual intercourse without consent can be committed while the person is acting alone or in company with someone else, contained in section 54(1) and 54(2) of the Crimes Act 1900, respectively.

If the offence is committed while the person is acting alone, the relevant provision is section 54(1) of the Crimes Act 1900 which states that the accused commits an offence if they engage in sexual intercourse with the complainant without the complainant’s consent, being reckless as to whether the complainant consents to the sexual intercourse.

This offence carries a maximum penalty of imprisonment for 12 years.

If the offence is committed while the person is acting in company with someone else, the relevant provision is section 54(2) of the Crimes Act 1900 which states that the accused commits an offence if they, acting in company with someone else, engage in sexual intercourse with the complainant without the complainant’s consent, being reckless as to whether the complainant consents to the sexual intercourse.

This offence carries a maximum penalty of imprisonment for 14 years.

For the purpose of each of the above offences, section 54(3) of the Crimes Act 1900 states that proof of knowledge or recklessness is sufficient to establish the element of recklessness. That is, if the prosecution proves that either:-

  • The accused knew that the complainant did not consent; or
  • The accused was reckless as to whether the complainant consented

then it will be established that the accused was reckless as to whether or not the complainant consented to the sexual intercourse.

What Is ‘Sexual Intercourse’?

To understand why you may be charged with sexual intercourse without consent, it is important to acknowledge the broad interpretation given to ‘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 Actions Might Constitute Sexual Intercourse Without Consent?

Examples of sexual intercourse without consent include:-

  • You are in bed with a girl you met in a club. You ask her if she wants to give you head and she says no. You disregard her protests and push her head down until your penis is in her mouth.
  • Your mate passes out at a party. You insert a pen into his anus.
  • Your friend’s sister stays with you and your housemate while she is in town. One evening while you are watching television you insert a finger in her vagina while your housemate fondles her breasts. Because you were acting in company with someone else, you would be liable to imprisonment for 14 years.

What the Police Must Prove

To convict you of sexual intercourse without consent, the prosecution must prove each of the following matters a beyond reasonable doubt:

  • That you engaged in an act with a person; and
  • That act constituted sexual intercourse; and
  • The person did not consent to engaging in sexual intercourse; and
  • That you were reckless as to whether the person consented to engaging in sexual intercourse.

If you are charged with an offence under section 54(2) then, in addition to the above, the prosecution has to prove that you were acting in company with someone else when you engaged in sexual intercourse.

Possible Defences for Sexual Intercourse Without Consent

The common ways to defend this charge are:

  • To maintain your innocence if you did not commit the act; or
  • To argue that the act did not constitute sexual intercourse; or
  • To argue that the person consented to engaging in sexual intercourse; or
  • To argue that 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.

Which court will hear your matter?

These matters are strictly indictable matters and will be dealt with in the ACT Supreme Court.

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

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

WHY CHOOSE ARMSTRONG LEGAL?

Armstrong Legal
Social Rating
4.5
Based on 274 reviews
×
Legal Hotline.
Open 7am - Midnight, 7 Days
Call 1300 038 223