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Aggravated Sexual Assault

Aggravated sexual assault is an offence under section 61J of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 20 years. The standard non-parole period is imprisonment for 10 years.

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What the prosecution must prove

To prove an aggravated sexual assault, the prosecution must show beyond reasonable doubt that:

  • A person had sexual intercourse with another person;
  • That person did not consent;
  • The person knew they did not consent;
  • The sexual intercourse occurred in circumstances of aggravation.

What is “sexual intercourse”?

Sexual intercourse is defined as the penetration of the genitals of a female or the anus or mouth of any person by the body of another person or an object manipulated by another person. Sexual intercourse also includes cunnilingus.

What constitutes “without consent”?

A person knows that the other person does not consent to sexual intercourse if:

  • The person knows that the other person does not consent to the sexual intercourse;
  • The person is reckless as to whether the other person consents to the sexual intercourse;
  • The person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

What are “circumstances of aggravation”?

The Crimes Act 1900 (NSW) defines circumstances of aggravation to mean circumstances in which:

  • at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby
  • at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument
  • the alleged offender is in the company of another person or persons
  • the alleged victim is under the age of 16 years
  • the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender
  • the alleged victim has a serious physical disability, or
  • the alleged victim has a cognitive impairment, or
  • the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence
  • the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

Defences

You may have a defence if:

  • You did not have sexual intercourse with the complainant
  • The complainant consented to the sexual intercourse

The onus is on the prosecution to prove all the elements of the offence, including the circumstance of aggravation, beyond reasonable doubt.

Will I go to jail?

Upon conviction a full-time custodial sentence is highly likely. The Crimes (Sentencing Procedure) Act 1999 (NSW) prescribes a standard non-parole period of 10 years.