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Sexual Assault

Sexual assault is one of the most serious offences in the criminal law. For a conviction of sexual assault, an accused will almost certainly receive a full-time jail sentence.

Procedures for sexual assault trials are different from most other proceedings. Pre-recorded evidence, restrictions and regulated cross-examination, as well as changes to laws on consent and sentencing, make this one of the most complex and changing areas.

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If you are under investigation for an allegation of sexual assault, you should seek immediate legal advice. Often, decisions made in the first hours and days of an investigation can be critical to the final outcome.

An offence under section 61I of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 14 years. The standard non-parole period is imprisonment for seven years.

What the prosecution must prove

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

  • A person had sexual intercourse with another person,
  • That person did not consent to the sexual intercourse, and
  • The person knew they were not consenting to the sexual intercourse.

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.

Defences

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

You may have a defence if:

  • The complainant consented to the sexual intercourse; or
  • You did not know, or were not reckless as to their consent; or
  • You did not have sexual intercourse with the complainant.

Will I go to jail?

The offence is regarded by the courts as a serious offence and upon conviction it would be exceptional for an offender to receive a sentence other than full-time imprisonment. The Crimes (Sentencing Procedure) Act 1999 (NSW) prescribes a standard non-parole period of seven years.