Sexual Assault


In the ACT, it is an offence to sexually assault a person. The maximum penalty ranges from 12 years to 20 years imprisonment, depending on the offence.

Sexual assaults in the first, second and third degree are offences which are intended to capture assaults used as coercion for sexual intercourse; that is, inflicting harm or threatening to inflict harm if someone does not engage in sexual intercourse. The harm can be inflicted on the person who it is intended will engage in sexual intercourse, or on a third person.

The degree is determined by the seriousness of assault that accompanies the intended sexual intercourse. Sexual assault in the third degree is the least serious of the three, requiring an unlawful assault or mere threat of grievous/actual bodily harm. Meanwhile, the most serious, being sexual assault in the first degree, requires grievous bodily harm to actually be inflicted.

Penalties the court can impose:

What is Sexual Intercourse?

To understand why you may be charged with an act of indecency, 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.

The Offence of Sexual Assault in the First Degree:

Sexual assault in the first degree can be committed while the accused is acting alone or in company with someone else, contained in section 51(1) and 51(2) of the Crimes Act 1900, respectively.

If the offence is committed while the accused is acting alone, the relevant provision is section 51(1) of the Crimes Act 1900 which states that the accused commits an offence if they:-

  • Inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
  • Inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with a third person who is present or nearby.

This offence carries a maximum penalty of imprisonment for 17 years.

If the offence is committed while the accused is acting in company with someone else, the relevant provision is section 51(2) of the Crimes Act 1900 which states that the accused commits an offence if they, while acting in company of someone else do any of the following:-

  • Inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
  • Assist in inflicting grievous bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
  • Inflict grievous bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with the complainant; or
  • Assist in inflicting grievous bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with the complainant; or
  • Inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with any other person who is present or nearby; or
  • Assist in inflicting grievous bodily harm on the complainant with intent to engage in sexual intercourse with any other person who is present or nearby; or
  • Inflict grievous bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with any other person who is present or nearby; or
  • Assist in inflicting grievous bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with any other person who is present or nearby.

This offence carries a maximum penalty of imprisonment for 20 years.

What is Grievous Bodily Harm?

In order to be guilty of sexual assault in the first degree, the harm inflicted must amount to grievous bodily harm. The dictionary contained in the Crimes Act 1900 states that grievous bodily harm to a person includes:-

  • Any permanent or serious disfiguring of a person; and
  • For a pregnant woman, loss of or serious harm to the pregnancy other than in the course of a medical procedure (whether or not the woman suffers any other harm).

Grievous bodily harm is also described in case law as a ‘really serious injury’.

The Offence of Sexual Assault in the Second Degree:

Sexual assault in the second degree can be committed while the accused is acting alone or in company with someone else, contained in section 52(1) and 52(2) of the Crimes Act 1900, respectively.

If the offence is committed while the accused is acting alone, the relevant provision is section 52(1) of the Crimes Act 1900 which states that the accused commits an offence if they:-

  • Inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
  • Inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with a third person who is present or nearby.

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

If the offence is committed while the accused is acting in company with someone else, the relevant provision is section 52(2) of the Crimes Act 1900 which states that the accused commits an offence if they, while acting in company of someone else do any of the following:-

  • Inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
  • Assist in inflicting actual bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
  • Inflict actual bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with the complainant; or
  • Assist in inflicting actual bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with the complainant; or
  • Inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with any other person who is present or nearby; or
  • Assist in inflicting actual bodily harm on the complainant with intent to engage in sexual intercourse with any other person who is present or nearby; or
  • Inflict actual bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with any other person who is present or nearby; or
  • Assist in inflicting actual bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with any other person who is present or nearby.

This offence carries a maximum penalty of imprisonment for 17 years.

What is Actual Bodily Harm?

In order to be guilty of sexual assault in the second degree, the harm inflicted must amount to actual bodily harm. This broadly requires that a visible injury be present to show that bodily harm occurred, for example a bruise or scratch. The case law also states that 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 other than in the course of a medical procedure (whether or not the woman suffers any other harm).

The Offence of Sexual Assault in the Third Degree:

Sexual assault in the third degree can be committed while the accused is acting alone or in company with someone else, contained in section 53(1) and 53(2) of the Crimes Act 1900, respectively.

If the offence is committed while the accused is acting alone, the relevant provision is section 53(1) of the Crimes Act 1900 which states that the accused commits an offence if they:-

  • Unlawfully assault the complainant with intent to engage in sexual intercourse the complainant; or
  • Threaten to inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
  • Threaten to inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
  • Unlawfully assault the complainant with intent to engage in sexual intercourse with a third person who is present or nearby; or
  • Threaten to inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with a third person who is present or nearby; or
  • Threaten to inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with a third person who is present or nearby.

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

If the offence is committed while the accused is acting in company with someone else, the relevant provision is section 53(2) of the Crimes Act 1900 which states that the accused commits an offence if they, while acting in company of someone else do any of the following:-

  • Unlawfully assault the complainant with intent to engage in sexual intercourse with the complainant; or
  • Threaten to inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
  • Threaten to inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
  • Unlawfully assault the complainant with intent that any person in the accused’s company should engage in sexual intercourse with the complainant; or
  • Threaten to inflict actual bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with the complainant; or
  • Threaten to inflict grievous bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with the complainant; or
  • Unlawfully assault the complainant with intent to engage in sexual intercourse with any other person who is present or nearby; or
  • Threaten to inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with any other person who is present or nearby; or
  • Threaten to inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with any other person who is present or nearby; or
  • Unlawfully assault the complainant with intent that any person in the accused’s company should engage in sexual intercourse with any other person who is present or nearby; or
  • Threaten to inflict actual bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with any other person who is present or nearby; or
  • Threaten to inflict grievous bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with any other person who is present or nearby.

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

What Actions Might Constitute Sexual Assault in the First, Second or Third Degree?

Examples of sexual assault in the first, second and third degree include:-

  • You are involved in a home invasion. You shoot one of the occupants and demand that his wife perform fellatio on you, while still pointing the gun at her husband. This would constitute a sexual assault in the first degree, where you have inflicted grievous bodily harm on the husband with the intention of engaging in sexual intercourse with the wife.
  • You try to initiate sex with your boyfriend and he turns you down. You grab his wrists so hard your fingers leave bruises and tell him to give in. This would constitute a sexual assault in the second degree, where you have inflicted actual bodily harm with the intent to engage in sexual intercourse with him.
  • You are at a house party. You and your mate walk into a room where two girls are talking. You grab one of the girls, hold a knife to her throat and threaten to cut her if her friend does not have sex with your mate. This would constitute a sexual assault in the third degree as you have threatened to inflict grievous/actual bodily harm. You would be liable to imprisonment for 14 years as you were acting in company.

What the Police Must Prove:

To convict you of sexual assault in the first degree while acting alone, the prosecution must prove each of the following matters beyond reasonable doubt:-

  • That you inflicted harm on another person; or
  • That harm amounted to grievous bodily harm; and
  • That you either:
    • Did this with intent to engage in an act with that person; or
    • Did this with intent to engage in an act with a third person who is present or nearby; and
  • That the act you intended to engage in constituted sexual intercourse.

To convict you of sexual assault in the first degree while acting in company with someone else, the prosecution must prove each of the following matters beyond reasonable doubt:-

  • That you either:
    • Inflicted harm on another person; or
    • Assisted in inflicting harm on another person; and
  • That harm amounted to grievous bodily harm; and
  • That you either:
    • Did this with intent to engage in an act with that person; or
    • Did this with intent to engage in an act with a third person who is present or nearby; or
    • Did this with intent that anyone in your company should engage in an act with that person; or
    • Did this with intent that anyone in your company should engage in an act with any other person who is present or nearby; and
  • That the act intended constituted sexual intercourse; and
  • That you were acting in company with someone else.

To convict you of sexual assault in the second degree while acting alone, the prosecution must prove each of the following matters beyond reasonable doubt:-

  • That you inflicted harm on another person; or
  • That harm amounted to actual bodily harm; and
  • That you either:
    • Did this with intent to engage in an act with that person; or
    • Did this with intent to engage in an act with a third person who is present or nearby; and
  • That the act you intended to engage in constituted sexual intercourse.

To convict you of sexual assault in the second degree while acting in company with someone else, the prosecution must prove each of the following matters beyond reasonable doubt:-

  • That you either:
    • Inflicted harm on another person; or
    • Assisted in inflicting harm on another person; and
  • That harm amounted to actual bodily harm; and
  • That you either:
    • Did this with intent to engage in an act with that person; or
    • Did this with intent to engage in an act with a third person who is present or nearby; or
    • Did this with intent that anyone in your company should engage in an act with that person; or
    • Did this with intent that anyone in your company should engage in an act with any other person who is present or nearby; and
  • That the act intended constituted sexual intercourse; and
  • That you were acting in company with someone else.

To convict you of sexual assault in the third degree while acting alone, the prosecution must prove each of the following matters beyond reasonable doubt:-

  • That you either:
    • Unlawfully assaulted another person; or
    • Threatened to inflict grievous bodily harm on another person; or
    • Threatened to inflict actual bodily harm on another person; and
  • That you either:
    • Did this with intent to engage in an act with that person; or
    • Did this with intent to engage in an act with a third person who is present or nearby; and
  • That the act you intended to engage in was sexual intercourse.

To convict you of sexual assault in the third degree while acting in company with someone else, the prosecution must prove each of the following matters beyond reasonable doubt:-

  • That you either:
    • Unlawfully assaulted another person; or
    • Threatened to inflict grievous bodily harm on another person; or
    • Threatened to inflict actual bodily harm on another person; and
  • That you either:
    • Did this with intent to engage in an act with that person; or
    • Did this with intent to engage in an act with a third person who is present or nearby; or
    • Did this with intent that anyone in your company should engage in an act with that person; or
    • Did this with intent that anyone in your company should engage in an act with any other person who is present or nearby; and
  • That the act intended constituted sexual intercourse; and
  • That you were acting in company with someone else.

Possible Defences for Sexual Assault in the First, Second or Third Degree:

The common ways to defend these charges are:-

  • To maintain your innocence if you did not commit the offence; or
  • To argue that the level of harm inflicted or threatened was less than that required for the offence with which you have been charged, for example you are charged with sexual assault in the first degree but the harm you inflicted was actual bodily harm (not grievous bodily harm, which is required for an offence in the first degree); or
  • To argue that when you inflicted the harm you did not intend to engage in sexual intercourse; or
  • To argue that the act you intended to engage in did not constitute sexual intercourse; or
  • If the offence is alleged to have been committed while acting in company with someone else, to argue that the act was not committed while acting in company with that person.

Which Court Will Hear Your Matter?

Sexual assaults in the first, second and third degrees are strictly indictable matters and will be dealt with in the ACT Supreme Court.

 

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
4.4
Based on 255 reviews
×
Legal Hotline.
Open 7am - Midnight, 7 Days
Call 1300 038 223