Aggravated Sexual Act

Aggravated Sexual Act is an offence under section 61KF of the Crimes Act 1900 which carries a maximum penalty of 3 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. Without the consent of the other person (the complainant), and
2. Knowing the complainant did not consent
3. You intentionally carried out a sexual act with or towards the complainant, or incited the complainant to carry out a sexual act with or towards you, or incited a third person to carry out a sexual act with or towards the complainant, or incited the complainant to carry out a sexual act with or towards a third person.

‘Sexual act’ is any act, other than sexual touching, carried out in circumstances where a reasonable person would consider it sexual.

Matters considered when deciding whether an act was sexual include:

1. Whether the genital or anal area was involved, or in the case of a female, or a transgender or intersex person identifying as female, whether the breasts were involved, or
2. Whether the act was for sexual arousal or sexual gratification, or
3. Whether any other aspect or circumstance made it sexual.

Conduct which may amount to 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’ are present where:

1. You were with another person or persons, or
2. The complainant was under your authority, or
3. The complainant had a serious physical disability, or
4. The complainant had a cognitive impairment

An act is not sexual if it was carried out for a genuine medical or hygienic purpose.

Defences to the charge include:

1. Self-defence
2. Duress
3. Necessity, and
4. Lawful correction of a minor