Affrimative Consent and Sexual Assault

In recent years, there has been an increase of media attention on sexual assault cases in concurrence with the rise of movements such as ‘Me Too’ and evolving ideas of what truly constitutes consent. In response, the NSW Government enacted legislation in June 2022 aimed at both simplifying and strengthening the laws regarding affirmative consent.

Sexual intercourse is defined as the penetration of a person’s genitalia to any extent by any part of the body of another person or any object manipulated by another person. This definition extends beyond the typical understanding of what constitutes sexual intercourse and includes cunnilingus and digital penetration.

Consent is the free and voluntary agreement to engage in sexual activity. The Court may consider the following in determining whether a person engaged in sexual activity freely and voluntarily:

  • A person may retract their consent at any time verbally or by action and demeanour.
  • The fact that a person does not verbally or physically resist does not mean they have consented to the sexual activity.
  • When a person consents to a particular activity, they are not regarded to have consented to any other activity that may ensue.
  • When a person has consented on one occasion does not mean they have consented to sexual activity with that person on another occasion.
  • It is not the case that consent with one person amounts to consent with another person on the same occasion or on an alternate occasion.
 
A person is taken to have not consented to sexual activity if any of the following circumstances exist:
 
  • A mistaken belief as to the identity of the alleged offender.
  • A mistaken belief that the alleged offender is married to the person.
  • A mistaken belief that the sexual activity is for health or hygienic purposes.
  • Any other mistaken belief about the nature of the activity induced by fraudulent means.
  • If the person consents to the sexual activity while substantially intoxicated by alcohol or any drug.
  • If the person consents to the sexual activity because of intimidatory or coercive conduct.
  • If the person consents because of the abuse of a position of authority or trust.
  • If the person is underage or lacks cognitive capacity.
  • If the person is unconscious or asleep.

Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for a maximum of 14 years with a Standard Non-Parole Period of 7 years imprisonment.

The maximum penalty increases to 20 years with a Standard Non-Parole Period of 10 years if the sexual assault occurs in the following circumstances:

  • The alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby.
  • 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 threatens to inflict grievous bodily harm or wounding on the alleged victim or any other person who is present or nearby.
  • 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 under the authority of the alleged offender.
  • The alleged victim has a serious physical disability.
  • The alleged victim has a cognitive impairment.
  • The alleged offender breaks and enters into a 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.
 
The alleged offender will be liable for life imprisonment with a Standard Non-Parole Period of 15 years imprisonment if the sexual assault occurs while in company with another person and at the time of the act, the alleged victim receives actual bodily harm, there is a threat to inflict actual bodily harm by use of an offensive weapon or instrument, or the alleged victim is deprived of their liberty.
 
To be found guilty, the Prosecution must prove the “essential elements” of the offence beyond reasonable doubt. In other words:
 
  1. That alleged offender engaged in sexual intercourse with the alleged victim;
  2. That there was no consent; and
  3. That alleged offender knew that there was no consent, or was reckless as to whether there was consent.
 
If there is an alleged circumstance of aggravation, such as the act was committed in company with another person, the Prosecution must also prove that element beyond reasonable doubt.
 
Beyond reasonable doubt is a very high threshold, and often, cases that appear insurmountable at the outset, can be overcome with effective defence strategy, including consideration of relevant defences available such as similar age or duress. Should you find yourself charged with any form of sexual assault, it is critical you seek the advice of an experienced criminal defence lawyer. The team at Jackson John Defence Lawyers can guide you through the Court process and assist you mount a defence.

Another commonly charged sexual offence involves the sexual touching of another person. An accused person who, without consent and knowing the alleged victim does not consent, intentionally:

  • Sexually touches the alleged victim;
  • Incites the alleged victim to sexually touch the alleged offender;
  • Incites the alleged victim to sexually touch a third person, is guilty of an offence and liable to imprisonment for 5 years.

The penalty is increased to 7 years imprisonment with a Standard Non-Parole Period of 5 years imprisonment if any of the following circumstances exist:

  • The alleged offender is in company with someone else;
  • The alleged victim is under the authority of the alleged offender; or
  • The alleged victim has a serious physical disability or cognitive impairment.

Sexual touching means a person touches another person with any part of the body with anything else or through anything, including anything being worn by the person doing the touching or by the person being touched in circumstances where a reasonable person would consider the touching to be sexual.

There are many variables that are relevant to a determination about whether a touching is sexual, such as the area touched and the context of the touching, which is why obtaining legal advice in response to charges of this nature is of critical importance. At Jackson John, we have the necessary expertise to assist in your defence. 

SPEAK TO OUR CRIMINAL Defence LAWYERS

or Call our 24 Hour legal Hotline 131-law (131 529)

Facebook-f Linkedin-in Twitter Instagram

© 2024 JACKSON JOHN DEFENCE LAWYERS – Privacy Policy 

Liability limited by a scheme approved under Professional Standards Legislation.
Legal Practitioners employed by this entity are members of the scheme and participate in the Discretionary Higher Cap.

Acknowledgement of Country

In the spirit of reconciliation, Jackson John Defence Lawyers acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community. 

We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander Peoples today.

  • Services
Facebook-f Instagram Twitter Linkedin-in

© 2024 JACKSON JOHN DEFENCE LAWYERS – Privacy Policy 

Liability limited by a scheme approved under Professional Standards Legislation.

Acknowledgement of Country

In the spirit of reconciliation, Jackson John Defence Lawyers acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community. We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander Peoples today.