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Aggravated Sexual Assault

Aggravated Sexual Assault is an offence under Section 61J of the Crimes Act 1900 which carries a maximum penalty of 20 years in prison.

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

  1. You had sexual intercourse with another person
  2. You did not have the other person’s consent
  3. You knew the other person did not consent, or were reckless as to whether he or she consented, or had no reasonable grounds to believe he or she consented, and
  4. At least one circumstance of aggravation existed

Sexual intercourse is defined by Section 61HA as:

  1. Penetration to any extent of a female’s genitalia, or the anus of any person, by any part of, or object used by, another person
  2. Introduction of a penis into the mouth of another person
  3. Cunnilingus, or
  4. Continuation of any of the mentioned acts

‘Consent’ is defined by Section 61HE as freely and voluntarily agreeing to sexual intercourse.

When determining whether consent exists the court must look at all relevant circumstances, including any steps you took to determine whether consent existed but it cannot consider your self-induced intoxication.

Grounds upon which it can be established that consent did not exist include where the other person consented whilst:

  1. Substantially intoxicated
  2. Intimidated or coerced, or
  3. Under your authority or in your trust

The other person did not consent if:

  1. They were under the age of 16 years
  2. They were over 16 but under 18 and in your ‘special care’
  3. They lacked cognitive capacity
  4. They were unconscious or asleep
  5. They were been unlawfully detained
  6. They were under a mistaken belief as to your identity
  7. They were under a mistaken belief that they were married to you
  8. They were under a mistaken belief the act was for health or hygienic purposes, or
  9. You acquired consent through threats of force or terror

Circumstances of aggravation are where:

  1. You intentionally or recklessly inflicted actual bodily harm
  2. You threatened to inflict actual bodily harm by means of an offensive weapon or instrument
  3. You threatened to wound or inflict grievous bodily harm
  4. You were in the company of another person or persons
  5. The complainant was under 16 or under your authority
  6. The complainant had a serious physical disability or cognitive impairment
  7. You broke into and entered a premises with the intention to commit a serious indictable offence, or
  8. You deprived the complainant of his or her liberty

Defences to the charge include:

  1. Duress
  2. Necessity
  3. Self Defence, and
  4. Mental illness

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