Sexual Offences
A wide range of offences are included under the heading of "sexual offences", including variations of sexual assault (rape), indecent assault and acts of indecency.
Our lawyers are well versed in this complex area of law, especially when it comes to defending serious allegations in criminal trials.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
Sexual Assault
When it comes to offences that fall under the category of sexual assault NSW law relies on legislation, rather than the old common law notions. If you are charged with a form of sexual assault or are aware that allegations have been made in NSW, then it is important to speak to a Sexual Assault Lawyer Sydney or NSW based for assistance.
The Law
The concept of sexual assault (or rape) and its various forms, involve the following elements as set out in section 61I of the Crimes Act:
a) Sexual intercourse
b) Lack of consent
c) Knowledge of the lack of consent
Unlike the old common law offence of “rape”, sexual intercourse is defined in section 61H of the Act as:
(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
(i) any part of the body of another person; or
(ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes; or
(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person; or
(c) cunnilingus.
Penalties
The maximum penalty for the standard sexual assault NSW offence is a term of imprisonment for 14 years, with a standard non-parole period of 7 years.
Commentary
For consent to be present, a person must freely and voluntarily agree to have sexual intercourse. However, it is not necessary for a victim to actively say “no” for there to be a lack of consent. An accused person can have knowledge of lack of consent if the accused person is reckless as to whether consent exists or if there aren’t any reasonable grounds to believe that there is consent.
Legislative changes, such as the extension of the concept of consent (or lack thereof), mean that people must be cautious even in scenarios where it may appear that the other person is consenting, particularly, for example, when the other person has been consuming alcohol or drugs. For more detailed commentary on the concept of consent in sexual assault matters, read here. If you or someone you know has been charged with sexual assault, our experts at Prime Lawyers - Criminal Law Division can help. Contact us to make an appointment with a criminal lawyer at your nearest Prime Lawyers office.
Call today to speak with a Sexual Assault Lawyer Sydney, Parramatta, Chatswood, Sutherland or Wollongong.
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Indecent Assault
Indecent assault charges and the circumstances where one may be charged can vary. There are gradations in the level of seriousness, however, one always faces the prospect of severe penalties if found guilty of this type of charge, particularly if charged with the more serious version, being aggravated indecent assault. When charging someone with indecent assault NSW Police have to take into account whether there may be aggravated factors that make the offence more serious.
The Law
An assault that has the additional element of the offender committing an act of indecency upon or in the presence of the victim is referred to as indecent assault.
Pursuant to section 61L of the Crimes Act 1900, any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, has committed the offence of indecent assault.
Penalties
The maximum penalty upon conviction for the charge of indecent assault is a term of imprisonment of 5 years. (Read more on the charge and penalties for aggravated indecent assault.)
The maximum penalty when the matter is being dealt with in the Local Court is a term of imprisonment of 2 years.
It must be noted that the maximum penalty, particularly when the matter is dealt with in the District Court, is reserved for the worst type of offender and offending conduct. Further, the Court still has available to it alternative penalties to full time imprisonment, such as a good behaviour bond, community service and a suspended gaol sentence.
Commentary
The essential ingredients that are required to prove a charge of indecent assault are:
1. That the accused person assaulted the victim,
2. That the assault was indecent, (or, that immediately before or after the assault the accused person committed an act of indecency on/in the presence of the victim,
3. That the assault was without the consent of the victim,
4. That the accused person knew that the victim was not consenting, (or, that the accused person was reckless as to consent)
What is the meaning of "assault"?
An assault can be committed in one of two ways - by way of physical contact or by placing the victim in fear.
To be an assault by way of physical contact, it is enough that the contact is intentional, unwanted and uninvited. The physical contact does not have to be with any particular force and does not need to be in anger or with the intention of hurting the other.
The other form of assault is where there is not physical contact, but the accused person has placed the victim in fear of imminent personal violence.
An example and further explanation of the two forms of assault can be read in our article on common assault. What is the meaning of "indecent"?
In essence, a charge of indecent assault requires that the assault (or act thereafter) must have a sexual connotation. The sexual connotation may derive directly from the area of the body of the person to which the assault is directed, or it may arise because the assailant uses the area of his or her body which would give rise to a sexual connotation in the carrying out of the assaults (Harkin (1989)). However, just because an assault is carried out on a particular area of a person, it does not automatically mean that it is "indecent" for the purposes of this charge.
Where it is not clear that a sexual connotation exists, the prosecution must prove that the act was done with the intention to obtain sexual gratification.
It must also be noted that the "assault" and "act of indecency" do not have to be separate acts. The prosecution can also rely on the same act as amounting to an assault and an act of indecency.
In addition to the above, the act of indecency does not necessarily need to be committed on the victim and it can be enough (as long as there is also an assault proved) that the act of indecency is committed in the presence of the victim.
The issue of "consent"
The prosecution must prove that the victim did not consent to the assault or being touched in a particular way and that the accused person knew the victim was not, or was reckless as to whether the victim was, consenting.
It is to be noted that consent is not a defence to an indecent assault charge when the victim is a child under 16 years.
The above is only a brief outline of the main concepts that relate to indecent assault charges. The criminal law relating to sexual offences is complex and the ramifications of a conviction for this type of offence can be severe; so it is important to obtain competent legal advice and representation when facing this sort of charge. Importantly, when facing the prospect of being charged with an indecent assault offence or other sexual offence, immediate advice from a competent criminal lawyer should be obtained before speaking to police or any other witness or person about the allegations.
If you have been charged with indecent assault (NSW) and require legal assistance, our experts at Prime Lawyers - Criminal Division can help. Contact us to obtain confidential legal advice from a criminal lawyer at your nearest Prime Lawyers office.
We have offices in the Sydney CBD, Parramatta, Chatswood, Sutherland and Wollongong.
Aggravated Indecent Assault
An assault that has the additional element of the offender committing an act of indecency upon or in the presence of the victim is referred to as indecent assault.
Pursuant to section 61L of the Crimes Act 1900, an indecent assault involves the assault of a person and, at the time of or immediately before or after the assault, a person committing an act of indecency on or in the presence of the person they assaulted.
In order to be an indecent assault, the assault must have a sexual connotation. The sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assaults (Harkin (1989)).
The term "aggravation" in criminal law denotes a more serious version of the particular offence and of course, an aggravated indecent assault is a more serious version of the offence.
The Law
Pursuant to section 61M of the Crimes Act (NSW) a person has committed the offence of aggravated indecent assault where an indecent assault has been committed and the victim is under the age of 16 or, the indecent assault has been committed in "circumstances of aggravation".
"Circumstances of aggravation" means circumstances in which:
(a) the alleged offender is in the company of another person or persons, or
(b) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(c) the alleged victim has a serious physical disability, or
(d) the alleged victim has a cognitive impairment.
Penalties
The maximum penalty for the offence where it is committed in "circumstances of aggravation" is 7 years' imprisonment. If the victim of the indecent assault is under the age of 16 (whether or not any other circumstances of aggravation exist) the maximum penalty for the offence is 10 years' imprisonment.
If you have been charged with aggravated indecent assault, and require legal assistance, our experts at Prime Lawyers - Criminal Law Division can help. Contact us to make an appointment with a criminal lawyer at your nearest Prime Lawyers office.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
The Concept of Consent
As noted on our “sexual assault” page a person "consents" to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
Often an experienced criminal lawyer is faced with the difficult task of advising a client as to whether or not there is an issue as to consent.
The law states that a person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:
(a) the person knows that the other person does not consent to the sexual intercourse, or
(b) the person is reckless as to whether the other person consents to the sexual intercourse, or
(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.
For the purpose of making any such finding, a Magistrate, Judge or Jury of fact must have regard to all the circumstances of the case:
(a) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but
(b) not including any self-induced intoxication of the person.
From the other point of view, the law states that a person does not consent to sexual intercourse:
(a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or
(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or
(c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
(d) if the person consents to the sexual intercourse because the person is unlawfully detained.
Further, a person who consents to sexual intercourse with another person:
(a) under a mistaken belief as to the identity of the other person, or
(b) under a mistaken belief that the other person is married to the person, or
(c) under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means),
does not consent to the sexual intercourse. Even though there is a mistaken belief, the other person must know that such a mistaken belief exists.
The grounds on which it may be established that a person does not consent to sexual intercourse include:
(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or
(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
(c) if the person has sexual intercourse because of the abuse of a position of authority or trust.
Most importantly, a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.
The law also states that the above scenarios do not limit the grounds on which it may be established that a person does not consent to sexual intercourse.
There are also some offences where consent cannot be used as a defence. Some of these include:
- indecent assault where child is under 16- aggravated indecent assault where child under 16;- act of indecency where child is under 16;- aggravated act of indecency where child is under 16;- sexual intercourse where child is under 16;- sexual intercourse with child between 16-18 years and under special care.If you have been charged with a sexual offence and require assistance, our experts at Prime Lawyers - Criminal Law Division can help. Contact us to make an appointment with a criminal lawyer at your nearest Prime Lawyers office.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
