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Sexual Assault

Sexual Assault is an offence under section 61I of the Crimes Act 1900, which carries a maximum penalty of 14 years in prison.

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

  1. You had sexual intercourse with another person
  2. Without the consent of the other person
  3. Knowing the other person did not consent, or being reckless as to whether the other person consented, or having no reasonable grounds to believe the other person consented

You must be found not guilty if the prosecution is unable to establish all three of those ‘elements’.

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, or
  2. Introduction of a penis into the mouth of another person, or
  3. Cunnilingus, or
  4. The continuation of any of the mentioned activities

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 taking by the defendant to determine whether there was consent but it cannot consider any self-induced intoxication by the defendant.

The grounds upon which it can be established there was no consent include where a person consents whilst:

  1. Substantially intoxicated
  2. Intimidated or coerced, or under the authority or trust of the defendant

A person does not consent if:

  1. Under the age of 16 years
  2. Over 16 but under 18 and in the ‘special care’ of the defendant
  3. Lacking the cognitive capacity
  4. Unconscious of asleep
  5. Unlawfully detained
  6. Under a mistake belief as to the identity of the defendant, or that he or she was married to the defendant, or that the intercourse was for the health or hygienic purposes, or
  7. Consent was acquired through threats of force or terror

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