Aggravated Sexual Assault
aggravated sexual assault has a maximum penalty of 20 years whilst aggravated sexual assault in company has a maximum penalty of life imprisonment.
Sexual assault is an offence that would usually (but not always) result in full-time imprisonment if a person is convicted. This is true even where a person has no previous convictions.
The Offence of Aggravated Sexual Assault
The offence of Sexual Assault is contained in section 61I of the Crimes Act 1900 which states:
Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.
In other words, this means:
- Sexual intercourse
- Without the other person’s consent
- Knowing the other person does not consent
What does sexual intercourse mean?
Sexual intercourse means:
- Penetration of the vagina or anus of a person using a body part or an object or
- Oral sex
What is consent?
Consent in relation to sexual assault offences is defined in the Crimes Act 1900.
The law explains the first person knows that second person is not consenting even if the first person is just reckless as to whether the second person is consenting. This includes circumstances where a person does not know if the second person is consenting, realises they might not be consenting, but goes ahead anyway.
The law also says that a person is taken to “know” that the other person is not consenting if the first person has no reasonable grounds upon which to conclude that the other person was consenting.
What is Aggravated Sexual Assault?
There are a number of circumstances that “aggravate” a charge of sexual assault. This includes, amongst others, where there are any of the following elements to the allegation:
- Infliction of an injury on the alleged victim
- Threat of an injury by the accused by use of a weapon or instrument
- The accused acting along with another person
- An alleged victim aged under 16
- Where the alleged victim is “under the authority” of the accused person
- An alleged victim having a serious physical disability
- An alleged victim having a cognitive impairment
What Actions might Constitute Aggravated Sexual Assault?
- Police can charge you with an offence under this section if you commit the offence of sexual assault in circumstances of aggravation.
- Our web page on sexual assault provides commentary and examples of actions that might constitute sexual assault. That commentary is directly applicable to this charge.
- Subsection (2) provides an exhaustive list of circumstances of aggravation, which are:
- If, at the time of or immediately before or after the offence, you intentionally or recklessly inflicted actual bodily harm on the alleged victim or any other person who was present or nearby;
- If, at the time of or immediately before or after the offence, you threatened to inflict actual bodily harm on the alleged victim or any other person who was present or nearby by means of an offensive weapon or instrument;
- If, at the time of or immediately before or after the offence, you threatened to inflict grievous bodily harm or wounding on the alleged victim or any other person who was present or nearby;
- If you committed the offence in the company of another person or persons;
- If the alleged victim was under 16 years of age;
- If the alleged victim was under your authority;
- If the alleged victim has a serious physical disability;
- If the alleged victim has a cognitive impairment;
- If you break and entered into a dwelling-house or other building with the intention of committing the offence of sexual assault or another other serious indictable offence (that is, an offence that is punishable by imprisonment of five years or more); or
- If you deprived the alleged victim of their liberty before or after the commission of the offence.
What does “Aggravated Sexual Assault In Company” mean?
This is where the accused person commits the offence in the company of another person, and further that one of the following elements is present:
- Infliction of an injury on the alleged victim
- A threat to inflict an injury on the alleged victim
- The alleged victim being denied their liberty before or after the offence
What the Police Must Prove
To convict a person of Sexual Assault, the prosecution must prove each of the following matters beyond a reasonable doubt:
- That the accused had sexual intercourse with another person
- The other person did not consent
- The accused knew or should have known the person did not consent
A person charged with sexual assault may argue in their defence that:
- Sexual intercourse did not occur;
- Sexual intercourse was consensual;
- They had a reasonable belief that the other person was consenting.
Which court will hear your matter?
These matters are strictly indictable, meaning they are finalised in the District or Supreme Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.