What is Sexual Assault?

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:

1. “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 —
   1. Any part of the body of another person, or
   2. Any object manipulated by another person,
2. Except where the penetration is carried out for proper medical purposes, or
3. Sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
4. Cunnilingus, or
5. The continuation of sexual intercourse as defined in paragraph (a), (b) or (c).”

What is consent?

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:

• The person knows that the alleged victim does not consent to the sexual activity, or
• The person is reckless as to whether the alleged victim consents to the sexual activity, or
• The person has no reasonable grounds for believing that the alleged victim consents to the sexual activity. (Section 61HE (3) of the Crimes Act 1900).

For the purposes of determining 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.

What do you need to secure a conviction?

In order to secure a conviction, the Prosecution must prove beyond reasonable doubt the following elements:

1. That the accused had sexual intercourse with the victim;
2. That the victim did not consent; and
3. That the accused knew that the victim did not consent.

What to do if you are accused of sexual assault?

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 consent to the sexual intercourse

How can we help you

Our Criminal Law team has the expertise and experience to defend a sexual assault claim. It can be a very complex process and it is important to know your rights and seek independent advice before providing an interview to Police or attending court. Contact us Today!