Sexual Assault | Indecent Assault

The Crimes Act now contains many more 'sexual assault offences' then just a few years ago, and the penalties for many offences have increased significantly. 

Many areas of sexual assault law has changed in recent years, including laws about 'consent', 'prior sexual conduct', 'cross-examination of complainants' and 'accessing information about complainants'.

It is therefore vital to get specialist sexual assault lawyers who understand the laws and have the experience to achieve the right result.

Unlike many other criminal law firms, Sydney Criminal Lawyers are vastly experienced in sexual assault cases. 

Our criminal lawyers are always up-to-date with the case-law and legislation.

We will accurately advise you about your particular case, about the legal process, your options, the best path to success and the likely outcome. 

We will use our extensive experience and professional clout to fight for the early withdrawal of charges, so that you can get on with your life.

If your sexual assault case proceeds towards a District Court or Supreme Court Criminal Trial, Sydney Criminal Lawyers can engage the services of the best criminal defence barristers in sexual assault trials, including Mr Stephen Hanley SC, who has successfully worked with Mr U. Nedim in sexual assault trials for well over a decade.

Don't settle for second best.

'Indecent Assault' is any assault where an 'act of indecency' is committed upon the victim, or in the presence of the victim, before, during or after the assault.

The maximum penalty for 'indecent assault' is 5 years imprisonment when dealt with in the District Court or 2 years in the Local Court.

An 'Act of Indecency' is any act involving a 'sexual connotation'; such as touching the buttocks, breasts or genitalia or kissing another person.

Where the alleged offender touches somewhere other than buttocks, breasts or genitalia, the prosecution must prove an 'intention to obtain sexual gratification'.

The types of conduct amounting to 'acts of indecency' can change over time, and are governed by generally accepted community standards.

Defences to 'indecent assault' include 'consent' and 'proper medical procedure'. 

'Aggravated Indecent Assault' is any 'indecent assault' (see above) that is committed 'in circumstances of aggravation'.

'Circumstances of Aggravation' are where:

-    the alleged offender is with another person or persons,

-    the alleged victim is under the authority of the alleged offender, eg is a student or otherwise under care, or

-    the alleged victim is mentally impaired or has a serious physical disability.

The maximum penalty for 'aggravated indecent assault' is 7 years imprisonment when dealt with in the District Court or 2 years in the Local Court.

There is also a 'standard non parole period' of 5 years, which means that a person found guilty should generally be imprisoned for 5 years.

The maximum penalty increases to 10 years imprisonment where the alleged victim is under 16 years of age.

In such cases, there is a 'standard non parole period' of 8 years imprisonment.

'Sexual Assault' is having 'sexual intercourse' with another person without that person's 'consent' and knowing that the other person does not consent.

The terms 'sexual intercourse' and 'consent' are defined below.

The maximum penalty for 'sexual assault' is 14 years imprisonment.

The offence carries a 'standard non parole period' of 7 years, which means that a person found guilty should generally be imprisoned for 7 years.
   

'Aggravated Sexual Assault' is having 'sexual intercourse' with another person without that person's 'consent' and knowing that the other person does not consent, in circumstances where:

-    actual bodily harm is intentionally or recklessly inflicted upon the alleged victim or a nearby person,

-    there are threats to use an offensive weapon or instrument,

-    more than one person is with the alleged offender,

-    the alleged victim is under 16,

-    the alleged victim is under the authority of the alleged offender, eg a student, tenant etc

-    the alleged victim has a mental impairment or serious physical disability,

-    there is 'breaking and entering',

-    the alleged victim is deprived of his or her liberty before or after the 'sexual assault'.

The maximum penalty for 'aggravated sexual assault' is 20 years imprisonment.

The offence carries a 'standard non parole period' of 15  years, which means that a person found guilty should generally be imprisoned for 15 years. 

'Aggravated Sexual Assault in Company' is having 'sexual intercourse' with another person without that person's 'consent' and knowing that the other person does not consent, in circumstances where:

-    the alleged offender is with another person or persons, and either

-    intentionally or recklessly inflicts actual bodily harm on the alleged victim or another person, or

-    threatens to use an offensive weapon or instrument, or  

-    deprives the alleged victim of his or her liberty before or after the offence.

The maximum penalty for 'aggravated sexual assault in company' is life imprisonment.

In New South Wales, life imprisonment means that a person must serve the term of his or her natural life in prison.

The offence carries a 'standard non parole period' of 15 years, which means that a person found guilty should generally be imprisoned for 15 years.

'Production, Dissemination or Possession of Child Abuse Material' is an offence carrying a maximum penalty of 10 years imprisonment when dealt with in the District Court, or 2 years in the Local Court.

'Child Abuse Material' is defined as 'material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive, someone who is, appears to be or is implied to be:

-    a child victim of torture, cruelty or physical abuse,

-    a child engaged in or apparently engaged in a sexual pose or sexual activity,

-    a child in the presence of another or others who are engaged in a sexual pose or sexual activity.

'Child abuse material' also includes any photos that are, or appear to be, those of a child's 'private parts'.

Relevant matters in deciding whether something is 'child abuse material' include:

-    generally accepted moral standards,

-    any literary, artistic, educational or journalistic merit of the material,

-    the general character of the material, including whether it medical, legal or scientific.

'Production' of 'child abuse material' includes filming, photographing, otherwise making, altering, manipulating or entering an agreement or arrangement in respect of such material.

'Dissemination' of 'child abuse material' includes sending, supplying, exhibiting, transmitting, communicating, making available or entering an agreement or arrangement for any of those things in respect of such material.

'Possession' of 'child abuse material' includes being in possession or control of such material or data.

'Defences' to 'child pornography' charges are:

1. Innocent Production, Dissemination or Possession

A person is 'not guilty' if:

-    he or she did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed the material.

-    the material came into his or her possession unsolicited and he or she took reasonable steps, as soon as practicable, to get rid of it.

Examples are where the material is downloaded onto a computer accidentally or by another user.

2. Public Benefit and Law Enforcement 

A person is 'not guilty' if the conduct was of 'public benefit' and did not extend beyond that benefit.

Conduct is of 'public benefit' if it is necessary for the enforcement of laws or the administration of justice.

It is also a defence if the material was necessary for police work.

Examples may include policy makers advising or drafting laws, or police officers prosecuting offences.

3. Classified Material  

A person is 'not guilty' if the material was classified; which means it was given a rating such as M, MA or R.

4. Approved Research

A person is 'not guilty' if it was necessary for scientific, medical or educational research approved by writing by the Attorney General for the purposes of the section, and did not go beyond that approval.

'Sexual Intercourse - Child Under 10' - Section 66A of the Crimes Act

'Sexual Intercourse' with a child under the age of 10 years carries a maximum penalty of 25 years imprisonment.

If there are 'circumstances of aggravation', the maximum penalty is life imprisonment.

'Circumstances of aggravation' are where:

 -   the alleged offender inflicts actual bodily harm,

-    the alleged offender threatens to inflict actual bodily harm with an offensive weapon or instrument,

-    the alleged offender is with another person or persons,

-    the alleged victim is under the alleged offender's authority, eg student, foster child etc,
 
-    the alleged victim has a mental impairment or serious physical disability,

-    the alleged offender takes advantage of the alleged victim's intoxication,

-    the alleged offender  deprives the alleged victim of his or her liberty before or after the offence.

Section 66A offences carry a 'standard non parole period' of 15 years, which means that a person found guilty should generally be imprisoned for 15 years.

'Sexual Intercourse - Child Between 10 and 16' - Section 66C of the Crimes Act

'Sexual Intercourse' with a child between 10 and 14 years carries a maximum penalty of 16 years imprisonment.

If there are 'circumstances of aggravation' (see above), the maximum penalty is 20 years.

'Sexual Intercourse' with a child between 14 and 16 years carries a maximum penalty of 10 years imprisonment.

If there are 'circumstances of aggravation', the maximum penalty is 12 years.

'Procuring, Grooming or Meeting Child Under 16 for Unlawful Sexual Activity' - Section 66EB of the Crimes Act

'Procuring' is obtaining or getting a child for unlawful sexual activity.

The maximum penalty is 15 years imprisonment where the child is under 14, or 12 years imprisonment in any other case.

'Grooming' is exposing a child to indecent material or an intoxicating substance with the intention of making it easier to procure (or get) the child to engage in unlawful sexual activity.

The maximum penalty 12 years imprisonment where the child is under 14, or 10 years imprisonment in any other case.

Grooming can occur 'in person, by telephone, the internet or other means' or 'by providing any computer image, video or publication'.

'Meeting Child Following Grooming' is intentionally meeting a child, or travelling with the intention of meeting a child, who the adult has groomed for sexual purposes with the intention of procuring the child for unlawful sexual purposes.

The maximum penalty is 15 years imprisonment where the child is under 14, or 12 years imprisonment in any other case.

'Sexual Intercourse with Child Between 16 and 18 Under Special Care' 

Having 'sexual intercourse' with a person aged between 16 and 18 who is under a person's 'special care' carries is an offence.

The maximum penalty is 8 years imprisonment where the child is between 16 and 17 years, or 4 years imprisonment where the child is between 17 and 18.

A child is under a person's 'special care' if the alleged offender:

-    is the child's step-parent, guardian, foster parent or school teacher,

-    has established a personal relationship with the child through religious, sporting, musical or other instruction,

-    is a custodial offender where the child is an inmate, or

-    is the child's health care professional.
      

'Sexual Intercourse' is defined by section 61H of the Crimes Act 1900 as:

-    any penetration of a female's genitalia, or anus of any person, by any part of another person or by an object,

-    any penetration of any person's mouth by any part of another's penis, or

-    cunnilingus.

A defence to 'sexual assault' is where the penetration was for 'proper medical purposes'.

Consent is defined by section 61HA of the Crimes Act as when a person 'freely and voluntarily agrees to the sexual intercourse'.

More specifically, the law says that sexual intercourse can only amount to sexual assault if:
 
(1) the alleged victim does not consent, and  

(2) the alleged offender knows there is no consent.

The prosecution must prove both of those things for someone to be found guilty of sexual assault.

The two important questions are:

(1) When does an alleged victim not consent? and

(2) When does an alleged offender know there is no consent? 

1. When does an alleged victim not consent?

There is no consent if the alleged victim:

-    does not have the capacity to consent due to lack of age or mental ability, or

-    is unconscious or asleep, or

-    is threatened with force or terror, or

-    is under a mistaken belief as to:

(i)   the identity of the other person, or

(ii)  that they are married, or

(iii) that the intercourse is for medical or hygenic purposes.

Relevant factors

It may be established that a person does not consent if he or she is:

-    substantially intoxicated,

-    being intimidated, coerced or threatened, even without a threat of physical force,

-    under the authority of the alleged offender who is abusing a position of trust.        

2. When does an alleged offender know there is no consent?

An alleged offender knows there is no consent if he or she:

-    knows the other person does not consent, or 

-    is reckless as to whether or not the other person consents, or

-    has no reasonable grounds for believing the other person consents, or

-    knows that the other person is under a mistaken belief as to identity, marriage or that the intercourse is for medical or hygenic purposes.

Relevant factors

In deciding whether or not the alleged offender 'knows' there is no consent, the court must consider all circumstances, including:

-    any steps taken to ascertain whether the other person consents,

But not including:

-    any self-induced intoxication of the other person.