Sexual Assault

In NSW, sexual assault carries a maximum penalty of 14 years imprisonment. 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 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 is sexual intercourse?

Sexual intercourse means:

Penetration of the vagina or anus of a person using a body part or an object or
Oral sex

What does consent mean?

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 Actions Might Constitute Sexual Assault?

Sexual Intercourse is defined in section 61HA of the Act. This section states that sexual intercourse means:

(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
- any part of the body of another person, or
- any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or

except where the penetration is carried out for proper medical purposes, or

(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
(c) cunnilingus, or
(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

Consent is addressed at length in section 61HE of the Act. This section provides: “A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity.”

The remaining subsections detail scenarios in which a person is deemed to know that there is no consent from another, circumstances in which an alleged victim cannot consent or circumstances where the alleged victim is deemed to have not consented.

For example, an alleged offender is taken to know that there is no consent from the other person if they are reckless as to whether there is consent or if they have no reasonable grounds to believe that the other person is consenting.

This section states that the Judge or Jury must have regard to all the circumstances of the case, including steps taken to ascertain whether or not there is consent to make this determination.

It is important to note that the Judge or Jury cannot take into account your self-induced intoxication in determining whether or not you reasonably believed that the other person had consented to sexual activity.

This section also lists a series of circumstances in which a person cannot consent to sexual activity, for example, if they do not have the capacity to consent, if they are asleep or unconscious or they are under threats of force or terror.

This section also provides that a person who consents to sexual activity but does so under a mistaken belief is not taken to have consented. for example, if the alleged victim believes that you are another person or that the sexual activity is for health or hygienic purposes.