A sexual assault charge is serious and can carry with it significant penalties such as life imprisonment.
For this reason, it is imperative that you seek the advice of an experienced criminal law firm to represent you and provide the best possible defence to a sexual assault offence.
Find out what the law states in regards to sexual assault charges below, including what the police must prove, penalties and possible defences.
What the law says
Section 352 of the Criminal Code states:
Any person who-
- (a) unlawfully and indecently assaults another person; or
- (b) procures another person, without the person’s consent-
- (i) to commit an act of gross indecency; or
- (ii) to witness an act of gross indecency by the person or any other person
is guilty of a crime.
Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.
In this section, “circumstances of aggravation” means circumstances in which:
- (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
- (b) at the time of, or immediately before or after, the commission of the offence, 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, or
- (c) the alleged offender is in the company of another person or persons, or
- (d) the alleged victim is under the age of 16 years, or
- (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
- (f) the alleged victim has a serious physical disability, or
- (g) the alleged victim has a serious intellectual disability.
What the police must prove
In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.
The accused had sexual intercourse with a person.
That the accused engaged in sexual intercourse with the victim at the time and place alleged:
Sexual intercourse under the Crimes Act refers to the genital penetration by a person’s body parts and also includes:
- The penetration of a person’s genitals by objects manipulated by another person;
- Cases of oral sex performed on either a male or a female.
There is no need to prove that full penetration occurred, or that the intercourse was for sexual gratification.
That the victim did not consent
Consent in the context of sexual assault refers to the ‘free and voluntary agreement’ of each party.
Consent can be provided verbally or through the victim’s actions. In some cases, consent cannot be given, for example:
- Where the victim does not have the capacity to give consent due to their age;
- Mental impairment;
- Where the victim is unconscious or asleep;
- Where the victim gives consent under threat or duress;
- Where the victim consents as they are being unlawfully detained;
- Where the victim is under a mistaken belief as to the identity of the offender, that the offender is their spouse, that the intercourse is for medical or hygienic reasons;
- Where the victim is severely intoxicated or affected by drugs;
- Where the offender is someone in a position of authority.
That the offender knew that the victim did not consent, or was reckless toward obtaining consent:
The prosecution must prove that the offender knew that the complainant either:
- Did not consent to the act.
- Was reckless with obtaining proper consent.
- Or that you had no reasonable grounds for believing that the complainant consented to the act.
In determining whether you knew that consent was not given, the court will consider the state of mind of the accused at the time of the offence, as well as any steps that you may have taken to determine whether consent was given.
If you’ve genuinely but wrongly believed that consent was freely given, the charges against you may be dismissed.
Recklessness will be established where you failed to consider whether or not consent was being given and acted regardless, or where you acted when there was a possibility that consent was not given.
Burden of Proof
It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence.
The Maximum penalty for the offence of Sexual Assault is life imprisonment.
Which court will hear the matter
This matter is an indictable offence which can only be dealt with in the District Court.
Statistics show the most common penalty for sexual assault offences was imprisonment, with the average sentence being 5 years and 4.5 months.
The average non-parole period in Australia was 3 years and 1 month.
Possible defences to the charge of sexual assault
Possible defences to this offence include but are not limited to
- Self Defence;
- Consent was given;
- Identity dispute;
- Honest and reasonable belief that the complainant was consenting.