In December 2018, the offence of aggravated sexual act replaced aggravated act of indecency in New South Wales.
The new offence is meant to better describe the conduct that is considered to be against the law when it comes to non-consensual acts towards other persons that do not involve touching, but are nevertheless sexual in nature.
The offence of aggravated sexual act is considered to be less-serious than aggravated sexual touching, although it is still treated seriously by the courts.
If you have been charged with aggravated sexual act, call Sydney Criminal Lawyers anytime on 02 9261 8881 to arrange a free first conference with an experienced criminal defence lawyer who will review the allegations and advise you of your options and the best way forward.
Read on for more information about the offence of aggravated sexual act, including what the law says, what the prosecution is required to prove, your options, the available legal defences and the applicable penalties.
What is the Offence of Aggravated Sexual Act?
Aggravated sexual act is an offence under Section 61KF of the Crimes Act 1900.
The section states that a defendant is guilty of a sexual act if he or she, without the consent of the complainant and knowing the complainant does not consent, intentionally and in circumstances of aggravation:
- carries out a sexual act with or towards the complainant, or
- incites the complainant to carry out a sexual act with or towards the defendant, or
- incites a third person to carry out a sexual act with or towards the complainant, or
- incites the complainant to carry out a sexual act with or towards a third person.
A ‘sexual act’ is defined by Section 61HC as any act – other than sexual touching – which is carried out in circumstances where a reasonable person would consider it to be sexual.
The section provides that the matters to be taken into account when deciding if the act is sexual include whether:
- the area of the body involved in the act is the person’s genital area, anal area or – in the case of a female person, or a transgender or intersex person identifying as female – the person’s breasts, or
- the defendant’s actions are for sexual arousal or sexual gratification, or
- any other aspect of the act, or the circumstances surrounding the act, make it sexual.
An act is not considered to be sexual if it is done for genuine medical or hygienic purposes.
Conduct which may constitute a sexual act includes:
- masturbating in front of the complainant,
- inciting the complainant to masturbate,
- carrying out a simulated sexual act, or
- inciting the complainant to carry out a simulated sexual act.
‘Circumstances of aggravation’ means where:
- the defendant is with at least one other person, or
- the complainant is under the authority of the defendant, or
- the complainant has a serious physical disability, or
- the complainant has a cognitive impairment.
What are the Penalties?
The maximum penalty for carrying out an aggravated sexual act is 3 years’ imprisonment.
The maximum penalty increases to two years if the offence was committed against a child who was at least 10 years of age but less than 16; see Section 66DE. In that event, additional factors that can be considered as aggravation are the infliction of actual bodily harm and threatening to inflict actual bodily harm by means of an offensive weapon or instrument.
It is important to bear in mind that these are maximums and the court can impose any of the following penalties for:
- Section 10 Dismissal
- Conditional Release Order
- Community Correction Order
- Intensive Correction Order
However, an Intensive Correction Order is not available where the sexual act involved a person who was under the age of 16 years.
What Does the Prosecution Have to Prove?
For a defendant to be found guilty of aggravated sexual act, the prosecution must establish each of the following elements of the offence:
- That the defendant carried out a sexual act towards the complainant, incited a third person to do so or incited the complainant to carry out a sexual act,
- That the complainant did not consent,
- That the defendant knew consent was not given, or was reckless as to whether consent was given.
- That at least one circumstance of aggravation existed.
A prosecution for the offence of aggravated sexual act will fail if each of these elements cannot be proved beyond reasonable doubt.
However, an alternative verdict of guilty of sexual act can be returned if each element except for that of aggravation is established.
What are the Defences?
In addition to the requirement that the prosecution must prove each element of the offence, it must also disprove any of the following defences if properly raised:
Your Options in Court
Pleading Not Guilty
Before you can be found guilty of committing an aggravated sexual act, the prosecution must prove beyond reasonable doubt that:
- You carried out a sexual act in the presence of the complainant or incited another to do so,
- You did not have consent to carry out the act,
- You knew that consent was not given, or were reckless as to whether it was given, and
- That at least one circumstance of aggravation existed.
There are a number of ways to defend the charge, including raising the fact that:
- The prosecution cannot prove there was a sexual act,
- The prosecution cannot prove an act was carried out towards or by the complainant,
- The prosecution cannot prove you were the person who carried out any such act or that you incited the complainant or another to do so,
- The prosecution cannot prove you acted intentionally or recklessly,
- The prosecution cannot prove a lack of consent;
- You were coerced or threatened into commit or it was undertaken in self-defence or out of necessity, or
- The prosecution cannot prove that a circumstance of aggravation existed.
If any of these matters prevail, you must be found not guilty of aggravated sexual act.
However, you may be found guilty of the alternative offence of sexual act if each element except for a circumstance of aggravation is established.
A good lawyer will be able to make written submissions to the prosecution with a view to having the case against you withdrawn, or fight to have it thrown out of court if it proceeds to a defended hearing or trial.
Where the prosecution evidence is very strong, you may decide to plead guilty to the offence.
In that case, your lawyer may be able to negotiate a lesser charge – such as sexual act (not aggravated) – as well as the amendment of the ‘agreed facts’ that are handed-up to the court, which can significantly reduce the seriousness of the offence, including the applicable penalties.
Your lawyer can also guide you on obtaining materials which can be handed-up to the court during your sentencing – including a letter of apology, character references and any documents from counsellors or health care professionals you have consulted.
These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.
By pleading guilty at an early stage, you will also be entitled to a ‘discount’ of up to 25% on your sentence – which can lead to a less serious type of penalty being imposed; for example, a section 10 dismissal or a conditional release order rather than a more serious penalty.
You will also be spared the time, expense and stress of a defended hearing or trial.
Frequently Asked Questions
Does there need to be any touching?
No. Unlike the offence of ‘sexual touching’, a sexual act does not involve physical contact.
What if the other person consented but later changed their mind?
The time of the act is what’s important. The prosecution must prove beyond reasonable doubt that:
- The other person did not consent at the time of the act, and
- You knew the other person did not consent, or you were reckless as to whether or not they consented.
This means a person cannot consent and later, after the conclusion of the act, claim they did not consent.
That said, it should be noted that certain people are incapable of giving consent including those under the age of 16, and those with a cognitive impairment when the other person is responsible for their care.
What’s the difference between sexual act and an act of indecency?
Sexual act has replaced the offence of act of indecency in NSW.
The new offence attempts to better describe and clarify the acts that are prohibited under the law, both with the naming of the offence and the definition of sexual acts and the matters relevant to determining whether an act is sexual.
What does ‘aggravated’ mean?
This means one or more of the following situations exist:
- the defendant was with at least one other person when the alleged sexual act occurred, or
- the complainant was under the authority of the defendant at that time or generally, or
- the complainant was suffering from a serious physical disability, or
- the complainant had a cognitive impairment.
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Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.
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Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.
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If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at firstname.lastname@example.org.
Recent Success Stories
- Client Not Guilty of Sexual Touching and Police Ordered to Pay Costs
- Not Guilty of Two Counts of Sexual Assault and Two of Indecent Assault
- Not Guilty of Multiple Sexual Assault and Aggravated Indecent Assault Charges
- Not Guilty of Indecent Assault Allegations
- Mental Health Application Successful for Indecent Exposure
- Defence Strategy Forces DPP to Drop Sexual Assault Trial
- Not Guilty of Indecent Assault
- All Indecent Assault Charges Dropped and Costs Ordered Against Police
- Indecent Assault Charges and AVO Dismissed
- Another Sexual Assault Case Dropped