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Sexual Act

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

The offence of Sexual Act replaced the offence of Act of Indecency in New South Wales on 1 December 2018. The new offence was introduced as part of a package of reforms designed to modernise and bring greater coherency to sexual offences, particularly those committed against children.

The offence of Sexual Act is punishable by a maximum of 18 months’ imprisonment and a maximum of 3 years’ imprisonment where it is an aggravated offence. These are the same penalties that were applicable for committing an Act of Indecency (where the victim was of or above the age of 16 years) and an Aggravated Act of Indecency respectively.

New offences have also been introduced where the alleged victim is under the age of 10 years or between 10 and 16 years. You will find information about these charges at the bottom of this page.

In NSW, a court can impose any of the following penalties for a Sexual Act.

You can find a brief description of each of these penalties at the bottom of this page.


THE OFFENCE OF COMMIT SEXUAL ACT:

Any person (the alleged offender) who without the consent of another person (the alleged victim) and knowing that the alleged victim does not consent, intentionally:

  • carries out a sexual act with or towards the alleged victim, or
  • incites the alleged victim to carry out a sexual act with or towards the alleged offender, or
  • incites a third person to carry out a sexual act with or towards the alleged victim, or
  • incites the alleged victim to carry out a sexual act with or towards a third person,

is guilty of an offence.

A person who commits the offence of Sexual Act is liable to a maximum of 18 months’ imprisonment.


"Circumstances of aggravation" means circumstances in which:

  • the alleged offender is in the company of another person or persons, or
  • the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
  • the alleged victim has a serious physical disability, or
  • the alleged victim has a cognitive impairment.

WHAT ACTIONS MIGHT CONSTITUTE A SEXUAL ACT?

"Sexual act" is defined as an act (other than Sexual Touching) carried out in circumstances where a reasonable person would consider the act to be sexual.

The matters to be taken into account in deciding whether a reasonable person would consider an act to be sexual include:

  • whether the area of the body involved in the act is a person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or
  • whether the person carrying out the act does so for the purpose of obtaining sexual arousal or sexual gratification, or
  • whether any other aspect of the act (including the circumstances in which it is carried out) makes it sexual.

What the police must prove:

To be found guilty of committing a Sexual Act the prosecution needs to prove beyond reasonable doubt that you:

  • intentionally, did one of the following:
    • carried out a sexual act with or towards the alleged victim, or
    • incited the alleged victim to carry out a sexual act with or towards you, or
    • incited a third person to carry out a sexual act with or towards the alleged victim, or
    • incited the alleged victim to carry out a sexual act with or towards a third person,

and it was done:

  • without consent of the alleged victim; and
  • knowing the alleged victim did not consent; and
  • if the offence is an aggravated offence, that there was a circumstance of aggravation.

If the prosecution does not prove each of the elements above beyond reasonable doubt you will be found not guilty.

POSSIBLE DEFENCES FOR THE OFFENCE OF SEXUAL ACT:

If the prosecution proves each of the above elements beyond reasonable doubt you may still rely on one of the following defences:

  • The Sexual Act occurred while you were under Duress
  • The Sexual Act was a result of Necessity
  • The Sexual Act was done in Self Defence
  • The Sexual Act was done for genuine medical or hygienic purposes

WHICH COURT WILL HEAR THE MATTER?

This charge is a Table 2 offence which means that the DPP can elect to have the matter dealt with in the District Court. However if no election is made, it will remain in the Local Court.

SEXUAL ACTS COMMITTED AGAINST CHILDREN

There are special offences where an alleged victim is under the age of 10 years or between the age of 10 and 16 years. For these offences whether the alleged victim consented and the alleged offender knew the alleged victim consented are irrelevant.

Committing a sexual act against a child under the age of 10 years is punishable by 7 years’ imprisonment.

Committing a sexual act against a child between the ages of 10 and 16 years is punishable by 2 years’ imprisonment.

Where the sexual act is committed against a child between the ages of 10 and 16 years in circumstances of aggravation the offence is punishable by 5 years’ imprisonment. “Circumstances of aggravation” is defined as circumstances in which:

  • at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
  • at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
  • the alleged offender is in the company of another person or persons, or
  • the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
  • the alleged victim has a serious physical disability, or
  • the alleged victim has a cognitive impairment, or
  • the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or
  • the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or
  • the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence.

These charges are Table 2 offences which means that the Director of Public Prosecutions can elect to have the matter dealt with in the District Court. However if no election is made, it will remain in the Local Court.



Types of penalties:

Jail for committing a Sexual Act: This is the most serious penalty for this charge and involves full time detention in a correctional facility. Read more.

Home Detention for committing a Sexual Act: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive correction order for committing a Sexual Act (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended sentence for committing a Sexual Act: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community service order for committing a Sexual Act (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good behaviour bond for committing a Sexual Act: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.

Fines for committing a Sexual Act: When deciding the amount of a fine for this charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10A: A section 10A is a conviction, with no other penalty attached to it. Read more.

Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.

Section 10 for committing a Sexual Act: Avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.


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.

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