What the law states

The offence of sexual assault is outlined in s 61I of the Crimes Act 1900 (NSW). The main requirements of this offence include:

a) Sexual intercourse

b) No consent

c) Knowledge of the lack of consent

Sexual intercourse is defined by the Act as

– the penetration to any extent of the genitalia of a female (including a surgically constructed vagina);
– the penetration to any extent of the anus of any person by any part of the body of another person;
– the penetration to any extent of the anus of any person or the genitalia of a female by any object manipulated by another person except for medical purposes;
– a sexual connection occasioned by the introduction of any part of the penis into the mouth of another person;
– cunnilingus (oral sex performed on the genitals of a female).

Consent is defined as free and voluntary agreement of a person to have sexual intercourse. It is important to realise that the absence of consent is not confined to a person actively saying ‘no’. A person can be unable to consent due to being asleep, unconscious, under the relevant age of consent, suffering from a cognitive incapacity, is under duress or unlawfully detained. This means that although the person may not actively indicate that they are not consenting, the absence of such indication cannot be taken for consent. For more information on consent click here.

An accused can be said to have knowledge of the lack of consent if they actually know that there is no consent, they are reckless as to whether or not there was consent or there are no reasonable grounds for believing that there is consent.

Defences to this offence

Defences to sexual assault include but are not limited to: duress. Simply being unaware that the other person does not consent may not be a defence to this offence.

Penalties

The maximum penalty for this offence is 14 years imprisonment and the standard non-parole period is 7 years. If you have been charged with this offence, you may be able to defend it, and thus be found not guilty. Any attempt to commit sexual assault will result in the same penalty as that provided for the commission of the offence.

Although this offence attracts heavy maximum penalties, lesser penalties are always an option that the court may consider (such as good behaviour bonds, community service orders, suspended sentences or weekend detention). In the event that you plead or are found guilty, there may be factors that make it possible for the court to sentence you to a lesser penalty and our criminal lawyers are experienced at drawing this to the attention of the court.

How can Prime Lawyers help you?

Our criminal lawyers at Prime are experienced in defending sexual assault charges. If you have been charged with sexual assault, they can assist you in determining the direction of your matter and should you choose to defend the charge, will exercise all options available to achieve the best outcome for you.

Author Bio: Emmanuel Apokis has many years experience in Criminal Law working with the experienced Criminal Lawyers at Prime Lawyers in Sydney.

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