Sexual Assault

What is
Sexual Assault?

In New South Wales, sexual assault is defined under Section 61I of the Crimes Act 1900 (NSW). It is a serious criminal offence involving non-consensual sexual intercourse. A person commits sexual assault if they:

  • Have sexual intercourse with another person,

  • Without the other person’s consent, and

  • Knowingly do so without consent, or are reckless as to whether the other person consents.

Key elements explained

Sexual Intercourse includes:

  • Penetration of the genitalia or anus of a person by any part of the body or an object

  • Penetration of the mouth by the penis

Consent means:

Consent is a free and voluntary agreement and must be actively sought and communicated. Absence of resistance or silence cannot be interpreted as consent. Consent cannot be given if the person is:

  • Coerced, threatened, unconscious, asleep, intoxicated, or mentally impaired

  • Deceived about the nature of the act or the identity of the person

Recklessness:

The accused may still be guilty if they did not care or did not take reasonable steps to confirm consent.

The Penalties of
Sexual Assault

The penalties for sexual assault offences are severe and reflect the seriousness with which the law treats non-consensual sexual acts. Penalties vary depending on the specific offence and its aggravating circumstances, but all carry the potential for significant terms of imprisonment. The penalties involve:

Sexual Assault – Section 61I of the Crimes Act 1900 (NSW)

  • Maximum penalty: 14 years imprisonment

  • Standard non-parole period: 7 years

Aggravated Sexual Assault – Section 61J

A more serious form of sexual assault that occurs when the offence involves aggravating factors such as violence, use of a weapon, infliction of physical injury, committing the act in company, or where the victim is under the authority of the offender.

  • Maximum penalty: 20 years imprisonment

  • Standard non-parole period: 10 years

Aggravated Sexual Assault in Company – Section 61JA

Sexual assault carried out by two or more people or with intent to inflict actual bodily harm, or where the victim suffers grievous bodily harm, or deprives the victim of liberty.

  • Maximum penalty: Life imprisonment

  • Standard non-parole period: 15 years

When determining the appropriate sentence for a sexual assault offence, the court will consider a range of aggravating and mitigating factors. These include the age and vulnerability of the victim, the level of violence or coercion used during the offence, and whether the offender has shown genuine remorse or entered an early guilty plea, which may reduce the sentence. The offender’s prior criminal history is also relevant. These factors collectively guide the court in assessing the seriousness of the offence and the offender’s level of culpability.

In addition to imprisonment, there are serious long-term consequences for individuals convicted of sexual assault. Offenders are typically required to register as sex offenders, which carries ongoing restrictions on travel and employment opportunities. In some cases, the court may impose extended supervision orders after release to monitor the individual’s behaviour. Beyond legal penalties, a conviction can have a lasting impact on an offender’s reputation, relationships, and future prospects.

The Possible
Defence Strategies

Defending a sexual assault charge requires a careful and strategic approach tailored to the specific facts of the case. The goal is to either secure an acquittal, reduce the severity of the charge, or minimise sentencing if a conviction is likely. Defence strategies focus on challenging the prosecution’s case or raising a legal defence that creates reasonable doubt. Some of the possible defence strategies include:

Consent

  • Argues that the sexual activity was consensual and that the complainant freely and voluntarily agreed.

Denial or Factual Dispute

  • The accused denies the allegation entirely, stating that the alleged assault did not occur or that they were not the person involved.

  • May include an alibi or challenge to the complainant’s version of events or credibility.

Mental Illness Defence

  • Argues the accused was suffering from a mental illness at the time of the offence and did not understand the nature or wrongfulness of their actions.

  • May result in a special verdict of not guilty by reason of mental illness and diversion to a mental health facility.

Evidentiary Challenges

  • Challenging the credibility or reliability of the complainant’s testimony.

  • Highlighting inconsistencies, delays in reporting, or lack of physical evidence.

  • Disputing the admissibility of evidence obtained unlawfully or prejudicial to the accused.

Choosing Sydney Defenders to represent you in a sexual assault matter ensures you receive the highest level of legal expertise, discretion, and strategic defence. Sexual assault charges carry severe penalties and life-altering consequences, including imprisonment and mandatory sex offender registration. Our firm understands the immense pressure clients face in these circumstances and provide strong, confidential support from the outset. We offer access to an exclusive network of seasoned criminal defence barristers, regularly briefed in complex matters held in both District and Supreme Court. Our robust legal team conducts meticulous case preparation, critically analyses the prosecution’s evidence, and develops tailored defence strategies designed to maximise the individual’s chances of acquittal or sentence reduction. Sydney Defenders are committed to always providing sound legal advice and preparing a strong defence case to achieve the best possible outcome for the specific situation.