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DEALING WITH SEXUAL ASSAULT CHARGES? WE STAND BY YOU
Coutts provides expert legal representation for individuals accused of Sexual Assault. Our team has deep experience in handling sensitive and complex sexual assault cases, ensuring a respectful and thorough approach. We understand the seriousness and intricacies of these allegations and are dedicated to upholding our clients’ rights while seeking the best possible outcome. Our strategy is comprehensive, focusing on meticulous evidence examination, empathetic legal advocacy, and strategic defence planning.
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The offence of sexual assault is contained in Section 61I of the Crimes Act 1900, which provides that “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”. The Act also defines the acts which constitute sexual intercourse, and Section 61HA provides that sexual intercourse means:
In NSW, consent is a fundamental part of sexual offence laws. A sexual offence only occurs when someone has not consented to the sexual act.
For the purposes of the Act, consent is defined by the act as occurring “if the person freely and voluntarily agrees to the sexual activity at the time of the act” (Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021). Therefore, consent is not presumed but rather requires affirmative confirmation at the time of the sexual activity. The acquisition of sexual consent involves ongoing and mutual communication.
A person is considered to have not consented to a sexual act unless they say or do something that is indicative of consent.
In addition, the Act states that a person knows that the victim did not consent to the sexual activity if:
To determine whether the accused knew that the victim did not consent to the sexual activity, the Court must take into account all the circumstances of the case including any steps taken by the accused to ascertain whether the victim consents to the activity but cannot take into account any self-induced intoxication of the accused (Section 61HE (4) of the Crimes Act 1900).
The legislation also defines the circumstances where any consent is negated, including where the victim does not have the capacity to give consent; where the victim is unconscious or asleep; if the victim consents due to threats of force or terror; because the victim is unlawfully detained; due to a mistaken belief as to identity of the accused; mistaken belief that the victim is married to the accused; mistaken belief that the sexual activity is for health or hygienic purposes; or any other mistaken belief about the nature of the activity induced by fraudulent means.
In order to secure a conviction, the Prosecution must prove beyond reasonable doubt the following elements:
There are a number of defences available to a charge of sexual assault, which include the following: • Maintaining that no sexual intercourse occurred; • Claiming that the victim consented to the sexual intercourse; • Claiming that the accused held a reasonable belief that the victim consented to the sexual intercourse
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Meet Luisa, a Partner at Coutts Lawyers & Conveyancers, and an Accredited Family Law specialist. Luisa is the head of our esteemed Family Law & Criminal Team. Boasting over a decade of expertise, Luisa blends sensitivity with practicality, forging deep connections and trust with her clients. Her reputation as a foremost authority in Criminal and Family law is well-deserved.
Consent, vital to sexual offence laws in NSW, is when someone freely and voluntarily agrees to the sexual act at the time of the act, requiring clear, affirmative, and ongoing communication as per the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021. It is imperative to confirm consent before any sexual act, and as consent can be withdrawn, it is also imperative to confirm consent during any sexual act.
Yes, a person can be found guilty if there are no reasonable grounds for their belief in consent, if they were reckless regarding consent, or if they were aware of the lack of consent, taking into consideration all circumstances, excluding self-induced intoxication. However, an accused person cannot have a reasonable belief that another person consented to a sexual activity unless the accused person said or did anything to find out whether the other person consented.
Consent is nullified in circumstances where victims lack the capacity to consent, are unconscious, are under threats, are unlawfully detained, have a mistaken belief regarding the accused’s identity, or are under any other mistaken belief about the act due to fraudulent means.
To secure a conviction, the prosecution must substantiate, beyond a reasonable doubt, that sexual intercourse occurred without the victim’s consent and that the accused was cognisant of the lack of consent.
If falsely accused, it is crucial to immediately seek legal representation and explore available defences such as asserting that no sexual intercourse occurred, claiming that the victim consented, or demonstrating a reasonable belief in the victim’s consent. Comprehensive consultation with the experienced Criminal Law team at Coutts is paramount before interacting with law enforcement or the court.