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Being accused of sexual assault can turn a person’s life upside down very quickly. There is the criminal investigation itself, but often there are other worries running alongside it: work, family, relationships and what people might think. And then there is the law, which can be difficult to understand at the best of times.
In NSW, sexual assault is a serious criminal offence governed by the Crimes Act 1900 (NSW). The law looks closely at what happened, whether there was consent and what the accused person knew or believed about consent. Those questions can become complicated, particularly where two people give very different accounts of the same encounter.
So, what actually amounts to sexual assault in NSW, and what does the prosecution have to prove?
What Is Sexual Assault Under NSW Law?
The offence of sexual assault is found in section 61I of the Crimes Act 1900 (NSW).
Broadly, it applies where a person has sexual intercourse with another person without their consent and the accused has the state of mind about consent required by the legislation. The maximum penalty is 14 years’ imprisonment.
“Sexual intercourse” also has a wider legal meaning than some people might assume. It isn’t limited to penile-vaginal intercourse. Under NSW law, it includes penetration of a person’s genitalia or anus by another person’s body part or an object, as well as certain oral sexual activity.
This distinction matters because conduct that someone might describe in everyday conversation using another term can still amount to sexual intercourse for the purpose of a sexual assault charge.
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What Does the Prosecution Have to Prove?
Being charged is not the same as being found guilty. If a sexual assault allegation is contested, the prosecution has to establish the offence beyond reasonable doubt.
In a sexual assault case, this involves proving that sexual intercourse occurred, that the complainant did not consent, and the necessary element concerning the accused person’s knowledge or belief about consent.
Sometimes the dispute isn’t about whether sexual activity happened at all. Both people may agree that it did. The disagreement may instead be about consent.
In other cases, the accused may deny that the alleged sexual intercourse ever occurred. That makes the evidence and the particular circumstances surrounding the allegation especially important.
What Does Consent Mean in NSW?
Consent is often at the centre of a sexual assault case, and NSW law is quite specific about what it means. Under section 61HI of the Crimes Act, a person consents to sexual activity if, at the time of the activity, they freely and voluntarily agree to it.
That sounds straightforward enough, but real situations aren’t always straightforward.
Section 61HJ sets out circumstances where there is no consent. These include situations where a person does not have the capacity to consent, is so affected by alcohol or drugs that they cannot consent, is unconscious or asleep, or participates because of certain forms of force, fear, coercion or intimidation.
Consent to one thing doesn’t automatically mean consent to everything else, either. Agreeing to one sexual activity isn’t necessarily agreement to another. Consent on a previous occasion also doesn’t, by itself, establish consent on a later occasion. And a person can change their mind.
These details matter because consent is assessed in relation to the particular sexual activity and the circumstances at the time.
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What About a Belief That the Other Person Consented?
This is another part of NSW law that is sometimes misunderstood. It isn’t enough in every case for an accused person to simply say, “I thought they consented.”
Section 61HK deals with knowledge about consent. Among other things, the law considers whether an accused person’s belief in consent was reasonable in the circumstances. When deciding that question, regard must be had to what the person said or did to find out whether the other person consented.
This forms part of NSW’s affirmative consent framework. In practical terms, assumptions can be a problem. Silence by itself shouldn’t simply be treated as agreement, nor should a person assume consent because of an existing or previous relationship.
Every case still turns on its own evidence. Messages, conversations, witness accounts, CCTV, forensic material and what happened before and after the alleged incident may all become relevant depending on the circumstances.
Are There Different Sexual Assault Offences?
Yes. “Sexual assault” is sometimes used broadly in everyday conversation, but the Crimes Act contains a number of separate sexual offences.
Alongside sexual assault under section 61I, NSW law includes aggravated sexual assault, aggravated sexual assault in company, sexual touching and sexual acts, among other offences.
Aggravated sexual assault, for example, involves sexual assault accompanied by a “circumstance of aggravation”. Depending on the offence, that may involve matters such as the infliction of actual bodily harm, the use or threatened use of a weapon, or particular characteristics or circumstances of the complainant.
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What Happens After a Sexual Assault Charge?
Sexual assault under section 61I is a strictly indictable offence. Although proceedings generally begin in the Local Court, the charge is ultimately dealt with in the District Court.
Before a trial, there may be several court appearances and procedural steps. The prosecution’s evidence is considered, legal issues may need to be dealt with, and the accused must decide, with legal advice, how to plead.
If the accused pleads not guilty, the matter may eventually proceed to trial. The prosecution then carries the burden of proving the offence beyond reasonable doubt.
A guilty plea takes the matter down a different path, with the court moving towards sentencing rather than a trial on guilt.
What Are the Penalties for Sexual Assault in NSW?
The maximum penalty for sexual assault under section 61I is 14 years’ imprisonment. More serious sexual offences can carry higher maximum penalties.
A maximum penalty doesn’t mean every person convicted will receive that exact sentence. Sentencing is individual. The court looks at the circumstances of the offence along with other relevant factors before deciding the appropriate penalty.
Still, sexual assault is treated as a serious offence and imprisonment can be a very real outcome following conviction. The effects may also go beyond the sentence itself. A conviction can affect employment, professional responsibilities, travel and other areas of a person’s life. Depending on the circumstances of the offence, additional reporting or registration requirements may also arise.
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Facing a Sexual Assault Charge in NSW
Sexual assault cases can be legally and factually complicated. Sometimes there are messages, forensic evidence or witnesses. Sometimes much of the case comes down to competing accounts of what happened behind closed doors.
If you’ve been charged, it is important not to make assumptions about the strength of the case based only on the allegation itself. Equally, these are not charges to treat casually.
Getting legal advice early can help you understand exactly what the prosecution alleges, what evidence exists, how NSW consent laws apply and what options you have as the case moves forward.
This article provides general information only and isn’t legal advice. If you are facing a sexual assault allegation or charge in NSW, advice should be obtained about your individual circumstances. You can get in touch with our sexual assault lawyers at Oxford Lawyers for professional guidance and representation.
