Sexual Offences Against Adults (NSW)
The New South Wales Crimes Act 1900 contains a number of sexual offences against adults. All sexual offences against adults have terms of imprisonment as the maximum penalty. Unlike sexual offences against children, sexual offences against adults generally involve non-consensual sexual contact. The exception to this is incest, which is an offence regardless of whether the parties consented.
Consent and sexual offences against adults
Section 61HE of the Crimes Act 1900 defines consent for the purposes of sexual offences against adults as free and voluntary agreement. The act states that consent is not valid if the person:
- Lacks capacity to consent because of their age or because of a cognitive incapacity;
- Is unconscious or asleep;
- Consents because of threats or terror;
- Consents because they are unlawfully detained.
Sexual intercourse and sexual offences
In the past, the law of rape applied only to the penetration of a vagina by a penis. Over the last 30 years, all Australian states and territories have broadened the definition to cover anal and oral intercourse and penetration with an object or by a body part other than a penis. The law now recognises that any non-consensual sexual penetration amounts to rape and that men and boys can also be the victims of rape.
Section 61I of the Crimes Act states that a person who has sexual intercourse with another person without their consent commits sexual assault, which is punishable by up to 14 years imprisonment. This crime is also known as rape or sex without consent in other jurisdictions.
If sexual assault is committed under circumstances of aggravation, the maximum penalty that applies is 20 years imprisonment. Circumstances of aggravation include the infliction or threatened infliction of bodily harm, the offender being in company with another person or the victim having a serious physical disability or cognitive impairment.
Under Section 61KC, a person commits a criminal offence if, knowing that another person does not consent, they:
- sexually touch the person;
- incite the other person to sexually touch them;
- incite a third person to sexually touch the person;
- incite the victim to sexually touch a third person.
The maximum penalty for this offence is five years imprisonment.
The offence is aggravated where the victim is under the offender’s authority, if the offender is in company with another person or if the victim has a serious disability (physical or cognitive).
Under Section 61KE of the Crimes Act a person commits an offence if they carry out a sexual act with another person without the other person’s consent. A sexual act can be carried out with or towards the alleged victim or with or towards a third person. The maximum penalty for this offence is 18 months imprisonment.
Assault with intent to have sexual intercourse
Under Section 61K of the Crimes Act a person commits an offence if they inflict, or threaten to inflict, actual bodily harm on a person intentionally or recklessly with intent to have sexual intercourse. The maximum penalty for this is 20 years imprisonment.
Under Section 78A of the Crimes Act, it is an offence for a person to have sexual intercourse with a close family member (a parent, child, sibling, grandparent or grandchild). The maximum penalty for this, when the offender is over 16, is imprisonment for eight years.
It is a defence to incest if the offender did not know that the other person was a close family member. However, the other person’s consent cannot be used as a defence. Incest is the only sexual offence against an adult where the consent of the parties is irrelevant.
If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Armstrong Legal.