The Law, Defences and Penalties for Sexual Assault in New South Wales

by Ugur Nedim & Sonia Hickey
Dating apps

A man is facing 135 criminal charges, including 46 sexual assault charges against 31 women that he met via dating apps, whom he allegedly drugged and filmed as he was sexually assaulting them.

Police say the 30 year old man from Brisbane used his position as a nurse to steal sedatives from the hospital where he was working, in order to drug the women.

The offences are alleged to have spanned a four year period dating back to 2016.

Ongoing investigation

Police say they have not identified all of the victims as yet, and their investigations are ongoing.

The man first appeared in court facing 10 charges over the alleged sexual assault of a woman in August 2020.

He was refused bail and had his registration as a health practitioner suspended by the Queensland Health Ombudsman.

As part of that investigation, police received information which led them to search a property in Brisbane, where they allegedly found several mobile phones as well as video recording equipment, prescription and illicit drugs.

They say 31 victims were identified as a result of that search and subsequent data analysis, but many of the identities remain unknown.

Additional charges

In addition to sexual offences, the man has been charged with 38 counts of observations or recordings in breach of privacy, which is punishable by a maximum prison term of two years.

He has also been charged with 14 counts of stupefying in order to commit an offence, which in Queensland is punishable by life imprisonment, as well as seven counts of unlawful possession of restricted drugs.

The man is also facing charges relating to computer hacking, distributing intimate images, impersonation and stalking.

Once again, dating apps are in the spotlight, with Tinder recently coming under fire for not doing enough to support victims, or to stop perpetrators.

Women urged to take care when meeting strangers

Dating apps are becoming increasingly popular during COVID-19, with Tinder growing in popularity amid the loneliness and isolation of lockdowns.

Subscriptions to the app have increased almost 20 percent in the year to June and, with cafes and pubs reopening around the country, many are using dating apps to make new connections.

At the same time, women are being urged to look after their own safety when meeting those who they have only previously known online.

A recent survey conducted jointly by the ABC’s Four Corners and Hack programmes received 400 responses, with the majority reporting that they had experienced sexual assault or harassment.

Sexual assault in New South Wales

Sexual assault is an offence under section 61I of the Crimes Act 1900 (NSW) (‘the Act’) which carries a maximum penalty of 14 years’ imprisonment.

It is defined as where a person “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”.

What is sexual intercourse?

‘Sexual intercourse’ is defined by 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, or

(d) the continuation of sexual intercourse…”

What is consent?

Section 61HE of the Act provides that a person consents to sexual activity if he or she freely and voluntarily agrees to it.

The section proceeds to state that an alleged offender knows there is no consent if he or she engages in sexual activity, or incites anyone to do so, in circumstances where he or she:

  • knows the alleged victim does not consent, or
  • is reckless as to whether the alleged victim consents, or
  • has no reasonable grounds to believe the alleged victim consents.

In deciding whether there is consent, the court must consider any steps taken by the alleged offender to ascertain whether there is consent.

The court cannot take into account any self-induced intoxication by the alleged offender.

The section makes clear there is no consent where the alleged victim:

  • does not have the capacity to consent due to factors such as their age (outlined above) or cognitive ability, or
  • does not have the opportunity to consent because they are unconscious or asleep, or
  • consents because of threats of force or terror, or
  • consents due to being unlawfully detained, or
  • consents because of a mistaken belief:

(a) as to the identity of the alleged offender,

(b) that the two are married,

(c) that the activity is for health or hygienic purposes, or

(d) that arises through any fraud.

The grounds upon which it may be established that the alleged victim did not consent include that he or she:

  • was substantially intoxicated,
  • was intimidated, coerced or threatened in any way, or
  • was under the authority or trust of the alleged offender.

The section further makes clear that a failure to resist the activity not in itself to be regarded as establishing consent.

What are the defences?

In addition to the requirement that the prosecution must prove each element of the relevant offence, it must also disprove beyond reasonable doubt any of the following defences if properly raised:

  • Duress, which is where you were threatened or coerced,
  • Necessity, where the act was necessary to avert danger, and
  • Self-defence, where you engaged in the act to defend yourself or another.

Charged with a sexual offence?

If you have been accused of a sexual offence and require the assistance of lawyers who are vastly experienced and have an outstanding track record of defending these cases, call Sydney Criminal Lawyers® 24/7 on (02) 9261 8881 to arrange a free first conference.

Authors

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Your Opinion Matters