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Criminal Law » Sexual Offences » Assault with Intent to have Sexual Intercourse

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Assault with Intent to have Sexual Intercourse

Assault with intent to have sexual intercourse is an offence under section 61K of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 20 years.

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What the prosecution must prove

To prove this offence, the prosecution must show beyond reasonable doubt that:

  • A person intends to have sexual intercourse with another person;
  • In doing so, the person intentionally or recklessly inflicts, or threatens to inflict, actual bodily harm on that person or a third person by means of an offensive weapon.

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 is “actual bodily harm”?

Actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim, it need not be permanent but must be more than merely transient or trifling.

What is an “offensive weapon or instrument”?

An offensive weapon or instrument is defined in the Crimes Act to mean:

  • A dangerous weapon
  • Any thing that is made or adapted for offensive purposes
  • Any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm.

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.

Defences

You may have a defence if:

  • You did not intend to have sexual intercourse with the complainant
  • You did not cause actual bodily harm, or threaten to cause actual bodily harm, to the complainant

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

Will I go to jail?

Assault with intent to have sexual intercourse is a very serious offence and upon conviction a term of imprisonment is to be expected.