Although most people in the community use the term “rape” when referring to non-consensual sex, there is no offence called “rape” in New South Wales.
Instead, there are a number of other offences which cover rape and non-consensual sexual acts in NSW.
The main offence that covers “rape” is the offence of “Sexual Assault”, which is found in Section 61I of the Crimes Act 1900 (NSW).
A Sexual Assault occurs if the following elements are present:
- A person has sexual intercourse with another person.
- Without the consent of the other person.
- Knowing that the other person does not consent.
The prosecution must prove all three elements beyond reasonable doubt for a person to be found guilty.
Let’s take a closer look at these elements.
What is sexual intercourse?
Although most people think of sexual intercourse as penile – vaginal penetration, sexual intercourse at law is much broader.
Sexual intercourse is defined in Section 61HA of the Crimes Act 1900 (NSW) as:
- Any penetration of the vagina (whether or not this a real or constructed vagina) using ANY part of the body or ANY object that is being controlled by a person (Unless it is for a proper medical purpose);
- Any penetration of the anus using ANY part of the body or ANY object that is being controlled by a person (Unless it is for a proper medical purpose);
- The connection of any part of the penis inside a person’s mouth;
- The connection of any part of the vagina with a person’s mouth;
If the allegation in question falls within any of the above categories then the allegation amounts to “sexual intercourse”.
The next element of Sexual Assault is consent.
What is Consent in Sexual Assault?
This is the most contested element in Sexual Assault cases – Did the person making the allegation consent to having sexual intercourse?
In order for a person to be guilty of Sexual Assault, the prosecution must prove, beyond reasonable doubt, that the person making the allegation did not consent to sexual intercourse.
Consent is defined in Section 61HE of the Crimes Act 1900 (NSW). A person consents to sexual intercourse if the person:
“freely and voluntarily agrees to sexual activity”.
We consider some of the most common questions regarding consent below:
Does consent to sexual intercourse have to be verbal or can it be implied through actions?
Consent doesn’t only have to be given verbally, it can also be expressed by physical actions.
If things are hot and heavy and it is very clear that both parties are consenting, there is no need to stop midway and undertake a verbal agreement.
The law doesn’t intend on making binding contractual agreement between people engaging in consensual sexual intercourse.
What if consent is obtained through persuasion or begging?
Consent which is obtained after persuasion or begging is still consent, provided that ultimately, it is given freely and voluntarily.
What if the person asks to stop during sexual intercourse?
The moment a person says stop and withdraws their consent, any further sexual intercourse from that point forward will amount to Sexual Assault.
For example, two people might be engaged in sexual intercourse for an entire hour. However, the moment a person changes their mind and says stop, anything from that point forward will amount to Sexual Assault.
What if the person does not physically resist sexual intercourse?
Sexual Assault law is that, just because a person does not physically resist or try to fight a person off, does not mean that the person is consenting to the sexual intercourse.
However, the absence of physical resistance, can in some cases, be used as evidence that the person was consenting to sexual intercourse or that the accused did not know that the other person was not consenting.
Can a person consent to sexual intercourse if they are intoxicated?
Intoxication with alcohol and/or drugs can be a relevant consideration in determining whether a person consented to sexual intercourse.
A person cannot consent to sexual intercourse if they were “substantially intoxicated” by alcohol or any drug.
Substantially intoxicated applies when the level of alcohol or drugs consumed by the person makes them unable to freely and voluntarily agree to sexual intercourse.
What if the person consents based on mistaken identity?
Unsurprisingly, consent is not valid if it is obtained by: a mistaken belief about the identity of the other person.
For example, if a twin brother were to get in bed with his brother’s wife and she, under the mistaken belief, agreed to have sexual intercourse with him. If the brother knew that she was under such a mistaken belief and continued, he will be guilty of Sexual Assault.
Can a person consent to sexual intercourse if they are asleep?
A person cannot consent to sexual intercourse, if they are asleep or unconscious.
This can become interesting when a husband or wife engages in sexual intercourse while the other person is asleep. Whether this is Sexual Assault, depends on the factual scenario of the sexual intercourse and the nature of the marriage.
Does marriage mean that there is consent to all sexual intercourse between the husband and wife?
Contrary to what some people believe, just because two people are married does not mean that they consent to all sexual intercourse with the other person.
There are many circumstances in which married people have been found guilty of sexual assault against their spouses.
Can a person consent to sexual intercourse if they have a mental impairment?
A person who does not have cognitive capacity (the ability to understand and make rational decisions) cannot give consent to sexual intercourse.
What if the person consents to a type of sexual intercourse but another is performed?
Consent is also invalid when a person performs an act that is different than the one that was consented to.
Let’s say, that a person agreed to oral sex, however, made it clear that they did not want their vagina to be penetrated. While down there, if the person undertaking the oral sex got carried away and penetrated the vagina using a finger, that penetration will be Sexual Assault.
What if a person takes a condom off during sex without telling the other person?
Commonly referred to as “Stealthing”, where a person agrees to sexual intercourse using a condom and part way through the other person discreetly removes the condom.
If the other person is not informed of the removal of the condom, then consent from that point will be invalid and it will amount to Sexual Assault.
Can a person under the age of 16 consent to sexual intercourse?
A person under the age of 16 cannot consent to sexual intercourse.
Therefore even if the person under the age of 16 agrees to have sexual intercourse, by virtue of their age, it will be deemed that there is no consent.
If an adult engages in sexual intercourse with a person under the age of 16 they will be guilty of an offence of under either Section 66A or Section 66C of the Crimes Act 1900 (NSW) depending on the age of the child.
What if the person is under the mistaken belief that sexual intercourse is for health or hygienic purposes?
If a person agrees to have sex under the mistaken belief that it is for health or hygienic purposes then it is deemed that they do not consent.
Obviously the accused person will need to be aware of this mistaken belief.
For example, if a person were under the mistaken belief that having sex with Mr X would make them immune to the Corona Virus, and Mr X knew they were under such a mistaken belief, then consent will be invalid.
What if consent is obtained through threats or force or terror?
Consent that is obtained by threat, force or terror is invalid.
A further interesting fact, is that a person cannot consent to sexual intercourse if they are being unlawfully detained. For example if a person is kidnapped.
However, all of the above matters regarding consent in Sexual Assault are subject to the final element. That is – Did the accused person have knowledge of the lack of consent?
Knowledge of Consent
As well as establishing a lack of consent, the prosecution must also prove that the accused person knew that the victim did not consent.
Knowledge for the purposes of Sexual Assault is also defined more broadly. The element of knowledge will be satisfied in the following circumstances:
The accused actually knew that the victim was not consenting
This is fairly straightforward. It covers circumstances where the accused actually knew that the victim was not consenting. For example, if the victim told them to stop.
The accused was reckless to the possibility that the victim wasn’t consenting
This occurs in circumstances where, the accused person knew that it was a possibility that the victim was not consenting, but proceeded with sexual intercourse regardless.
For example, if sexual intercourse were occurring with someone who was intoxicated and the accused knew it was a possibility that the person might not be able to consent due to their intoxication.
The accused had no reasonable grounds to believe the victim was consenting
The prosecution can prove the element of knowledge, if they can prove that there was no reasonable grounds for the accused to believe that the victim had consented to sexual intercourse.
If for example, someone was a sleep and the accused had no reason to believe that they would consent if they were awake.
What if the accused was under a mistaken belief about consent?
If an accused has a genuine (but wrong) belief that a victim was consenting, they cannot be convicted of Sexual Assault. Knowledge is a crucial element of Sexual Assault.
In determining whether the accused person had knowledge, the jury must consider what active steps the accused took to determine whether the victim was consenting.
Importantly, the consumption of alcohol and other drugs by the accused cannot be taken into account unless the accused did not voluntarily consume the substances (in cases of drink spiking for example).
What is the maximum penalty for Sexual Assault?
Sexual Assault carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 7 years.
Which Court determines Sexual Assault cases?
Sexual Assault is a strictly indictable offence which means that it must ultimately be heard and finalised in the District Court of NSW.
What does the Court take into account when sentencing for Sexual Assault?
If a person pleads guilty or is found guilty of Sexual Assault, the Court will have to sentence them accordingly.
An important step in determining the appropriate sentence, is to assess where the particular Sexual Assault lies on the spectrum or scale of seriousness.
Whilst every offence of Sexual Assault is taken very seriously by the Courts, some instances are more serious than others.
There are many factors that the Court will have to consider when determining the seriousness of the Sexual Assault. This includes the following factors:
The length of time over which the Sexual Assault occurred
For example, a Sexual Assault that occurred over an extended period is generally considered to be more serious than a Sexual Assault that occurred over a very short period.
The vulnerability of the victim
This is also relevant to how serious the Sexual Assault offence is. For example, if the victim is cognitively impaired and unable to protect themselves.
Humiliation of the victim
If during the Sexual Assault the victim was humiliates. For example, by spitting and swearing at the victim.
The amount of planning involved
The seriousness of the Sexual Assault will also increase proportionately to the amount of planning involved. Generally, spontaneous acts are considered to be less serious.
Emotional harm caused to the victim
If there is evidence that the victim suffered more emotional harm than the ordinary person would.
The knowledge of the accused
This has also been deemed to be a relevant factor in considering how serious the Sexual Assault is. Actual knowledge can, in some circumstance, be considered to be more serious than recklessness.
The type of Sexual Intercourse involved
Most people, for example, will consider penetration using a finger to be less serious than using a penis. However, recently this has been a matter of some debate, as Two out of three Judges of the Highest Court in the State of NSW found that all acts of sexual intercourse were to be considered the same.
In sentencing, the Court must also consider the personal circumstances of the accused.
This includes their age, criminal history, their upbringing, their mental health, their education and employment, their attitude towards their offence, any rehabilitation that they have undertaken and the support networks that they have.
If you have been charged with a sexual offence it is important that you seek legal advice immediately.
We are experts when it comes to Sexual Assault offences. Our experienced Sydney Criminal Lawyers have years of experience dealing with Sexual Assault cases.
We provide a 24 hour, 7 day a week free legal advice hotline to anyone who needs urgent criminal law advice. If someone you know has been arrested, here are the immediate things you need to know.
Alternatively, we also offer a free first legal conference to anyone that has been charged with a Sexual Assault offence.
Get in touch with Australian Criminal and Family Lawyers immediately on 1300SILENT (1300-745-368) .