Sexual Assault

Generally speaking, a person who touches or applies force of any kind to another person directly or indirectly without their consent is said to assault the other person.   

Where that touching is sexually motivated, or involves touching the other person’s genitals, or other private parts of their body (for ex: breasts, buttocks, upper thigh) without the other person’s consent, the assault will generally be categorised as a sexual or indecent assault.  

What is Sexual Assault?

Under section 352 of the Criminal Code, a person commits the offence of Sexual Assault when they:

• Unlawfully and indecently assault another person; or

• Procure another person, without the person’s consent; –

• • To commit an act of gross indecency; or
  • To witness an act of gross indecency by the person, or any other person

The maximum penalty for this offence (without any circumstances of aggravation) is 10 years imprisonment.

Consent

 In 2024, the laws in Queensland around sexual offending changed to bring Queensland in line with other Australian states under a new “affirmative consent” model.  

This means that the consent a person receives from another to engage in a sexual act must be:

• Free and voluntary – where all parties want to engage in the sexual activity, and no one is forced, pressured, or intimidated to agree to partake 
• Specific and informed – parties should discuss and agree before any sexual activity what sexual acts they agree to part in on that specific occasion
• Ongoing and mutual – consent can be withdrawn at any time, and parties should keep checking in and respect a person’s decision if they no longer wish to participate in any particular sex act. 
• From a person with capacity to consent – All parties engaging in the sexual activity must have the capacity to communicate or withhold consent.  A person cannot consent to sexual activities with a person when they are unconscious or asleep, or if they are particularly vulnerable and do not have the cognitive or mental capacity to understand the nature of the sexual act, and to communicate their consent.

In Queensland, the legal definition of “consent” for a sexual offence means free and voluntary agreement and the following rules apply to consent given for sexual acts:

• A person may withdraw consent to an act at any time.

• A person who does not offer physical or verbal resistance to an act is not, by reason only of that fact, to be taken to consent to the act.

•  A person does not consent to an act just because they consented to—

• • a different act with the same person; or
  • the same act with the same person at a different time or place; or
  • the same act with a different person; or
  • a different act with a different person.

The following acts can constitute a Sexual Assault:

• Groping of a person’s breasts or buttocks over their clothes without their consent.
• Forcing someone to witness you exposing your genitals or masturbating in front of them without their consent.
• Showing sexually images or videos to a person without their consent

What Must be Proven?

For a person to be found guilty of Sexual Assault under s352(1)(a) the Prosecution must prove each of the following matters:

• That a person has been assaulted (in other words, that some force has been applied directly or indirectly to the other person without that other person’s consent)

• That the assault was unlawful (in other words, there is no lawful reason for the application of the force, or legal defence which operates to justify or excuse the act); and

• The assault was indecent. (The word indecent bears its ordinary meaning and covers any assault the nature of which would offend currently accepted community standards of decency.  Most commonly an assault will be indecent where there is some sexual connotation to the act, or where evidence indicates the person has assaulted the other person in this way, to gain some form of sexual experience, pleasure or satisfaction.  

For a person to be found guilty of Sexual Assault under s352(1)(b) the Prosecution must prove each of the following matters:

• That a person has procured (enticed, induced, persuaded) another person
• To commit or witness being committed 
• An act of gross indecency 
• Without the other person’s consent 

If the Prosecution is unable to prove all of the above elements of the offence to the relevant standard (beyond a reasonable doubt) the accused person should be found not guilty.

Maximum Penalties- Sexual Assault Simpliciter v Aggravated Sexual Assault

The objective seriousness of each Sexual Assault matter will vary on a case-by-case basis. However, there are certain features which constitute a circumstance of aggravation under the law, and, if proven, will attract heavier sentences, because of their added seriousness.  In Court you will often hear charges without circumstances of aggravation referred to as “simpliciter” offences, and charges with circumstances of aggravation referred to as “aggravated” offences. 

Generally, a Sexual Assault will be a simpliciter offence unless it involves one of the legislatively identified circumstances of aggravation.  If one of these circumstances of aggravation feature in the alleged facts for the Sexual Assault charge, the offence will be categorised as an “aggravated” Sexual Assault, and the maximum penalty that the offender is liable to serve increases, to reflect the added seriousness of the matter. 

The maximum penalty for a charge of Sexual Assault simpliciter is 10 years’ imprisonment.

The following are circumstances of aggravation for the offence of Sexual Assault, under Queensland law:

• Where the indecent assault includes bringing into contact any part of the genitalia or the anus of a person with any part of the mouth of a person (maximum penalty increases from 10 years to 14 years imprisonment); or 
• Where before, during or after the offence, the offender is, or pretends to be armed with a dangerous or offensive weapon, or is in company with another person (maximum penalty increases from 10 years to life imprisonment); or
• Where an indecent assault includes the Complainant penetrating the offender’s vagina, vulva, or anus to any extent with a thing or part of the person’s body that is not a penis (maximum penalty increases from 10 years to life imprisonment); or
• Where the alleged act of gross indecency includes the procured Complainant penetrating the vagina, vulva or anus of the person who is procured or another person to any extent with a thing or a part of the body of the person who is procured that is not a penis (maximum penalty increases from 10 years to life imprisonment).
• Under the s 161Q of the Penalties and Sentences Act 1992 (QLD), it is a circumstance of aggravation to the charge, if, at the time the offence was committed, or at any time during the course of the commission of the offence, the offender: 

• Was a participant in a criminal organisation; and 
• they knew or ought reasonably to have known the offence was being committed
  • at the direction of the criminal organisation or one of its participants, or

• • in association with 1 or more persons who were participants of the criminal organisation at the time the offence was committed; or

• • for the direct or indirect benefit of a criminal organisation 

The above circumstance of aggravation was introduced some years ago to specifically target and more substantially punish the illegal conduct of motorcycle gangs and other criminal organisations. The impact of this circumstance of aggravation is that, if convicted of this offence with this circumstance of aggravation, the Court must impose a base component (sentence of imprisonment imposed under the law) and a mandatory 7 years’ imprisonment, to be served cumulatively (or on top of) the base component and served wholly in a corrective services facility. 

Which Court Will Hear the Matter?

An accused person can have their charge of Sexual Assault finalised in the Magistrates Court of Queensland if:

•  they do not elect to have a trial by Jury in the District Court
•  they are pleading guilty, and
•  the victim of the offence was 14 years or older at the time of the offence; and
•  they are not charged with any circumstances of aggravation

In all other cases, because of the nature and seriousness of the charge, the matter must proceed on indictment and be finalised before the District Court of Queensland.

Possible Defences to Sexual Assault

The following defences may be available to a person charged with Sexual Assault, depending on the facts and circumstances of their particular case:

1. Consent was given to the accused by the complainant prior to the alleged act
2. The person charged held an honest and reasonable but mistaken belief that the complainant was consenting  (Mistake of fact – Section 24 of the Criminal Code))
3. The person charged had a mental illness which deprived them of their capacity to understand what they were doing at the time of the offence, or to control their actions, or to know that they ought not do the act. (Insanity/ Unsoundness of mind – Section 27 of the Criminal Code); and
4. The person charged was involuntarily intoxicated (for example they were drugged by another)  and their level of intoxication at the time of the alleged offence was to such an extent that they did not have the capacity to understand what they were doing at the time of the offence, or to control their actions, or to know that they ought not indecently assault the Complainant (Non-voluntary Intoxication – Section 28 Criminal Code)

Common Questions about Sexual Assault charges

Will the jury take into account that I was drunk when the event occurred when considering if I am guilty?

In some cases, a jury is entitled to take into account your intoxication when determining whether they believe you held an honest belief that the complainant was consenting.  However, since the amendments in 2024, a jury cannot have regard to your voluntary intoxication when deciding whether your belief as to the complainant’s consent was reasonable.  In short, voluntary intoxication is not, in and of itself, a defence to the charge and the fact that you were intoxicated cannot turn what would otherwise be an unreasonable belief into a reasonable one.  

Are the media allowed to publish my name and picture and details about my charge of Sexual Assault, even if I haven’t been found guilty?

Yes. In Queensland, anyone charged with Rape, Attempted Rape, Assault with Intent to Commit Rape, or Sexual Assault may be named in any form of media coverage (including print, online, or television) at any stage of the legal proceedings.  However, a person charged with one of these offences can apply to the Court for a non-publication order (also known as a ‘suppression order’). 

The Court will only make such an order if one of the following three grounds is met:

1. The order is necessary to prevent prejudice to the proper administration of justice; or
2. The order is necessary to prevent undue hardship or distress to a complainant or witness in relation to the charge; or
3. The order is necessary to protect the safety of any person.

There are numerous considerations for a Court hearing such an application, but the principle of ‘open justice’ (which dictates that judicial proceedings should occur in open Court, publicly and in open view, and with no restriction on reporting) is usually of paramount consideration.  These applications can be complex and can actually draw media attention in circumstances where they may not have been aware or interested in your matter before. If you are needing assistance with one of these applications, you should get legal advice.

Will I go to Gaol or have a criminal record if I am convicted of this offence?

The following is a list of potential sentences a Queensland Court can make (in order of seriousness, from least serious to most serious):

• Convict and not further punish
• Release upon entering into a recognisance, with no conviction recorded (also known as a Good Behaviour Bond)
• A monetary fine
• Probation 
• Community Service
• An Intensive Corrections Order
• Suspended Orders of Imprisonment
• Imprisonment 

Sexual Assault is a serious criminal charge. If a person pleads guilty to this offence, or is found guilty after a trial, there is a very real chance the Court will consider sentencing the person to a period of imprisonment, or lengthy supervision order (even if the accused person has never been in trouble before.)   

In Queensland, any time the Court orders a term of imprisonment for an offence (even if the imprisonment is wholly suspended, or the person is granted immediate parole) the Court must record a conviction. This means the offence will appear on the person’s Court outcomes, and the person will have recorded criminal history. 

The consequences of a conviction being recorded for any type of offence can be serious if you have a job or type of employment where you need to have no prior criminal convictions. It may also jeopardise your employment and/or make it difficult to obtain visas for overseas travel.  A conviction for an offence of a sexual nature can completely rule out certain career paths, particularly those vocations which require a blue card, where you are working with children, or other vulnerable communities. If you are convicted of an offence of this nature, you can expect to have your blue-card taken away from you. 

If you are contacted by Police and they want to talk to you about a charge of Sexual Assault, or if you are charged with this offence or any other criminal matter, it’s important you receive good advice at the earliest opportunity and before speaking with Police or anyone else about the matter.  Armstrong Legal provides expert legal advice and representation for offences of this nature.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.