Sexual Assault – an overview
Sexual assault is a serious criminal offence which carries a maximum penalty of 14 years imprisonment. If the offence is committed in circumstances of aggravation (aggravated sexual assault) the maximum penalty is 20 years imprisonment. If the offence is committed in company and in circumstances of aggravation the maximum penalty is life imprisonment. If you have been charged with sexual assault it is imperative that you seek advice from an experienced sexual assault lawyer. The law of sexual assault is complex and nuanced.
What does the prosecution have to prove?
In order to be convicted of the basic offence of sexual assault, found in s. 61I of the Crimes Act 1900 (NSW), the prosecution must prove beyond reasonable doubt that you had sexual intercourse with the complainant, that you knew the complainant did not consent, or were reckless as to whether the complainant was consent, or had no reasonable grounds for believing that the complainant was consenting – that is, that you did not honestly believe that the complainant was consenting, or if you did have an honest belief, that you had no reasonable grounds for that belief.
An accused person cannot rely on an honest but mistaken belief that the complainant was consenting unless that belief is based on reasonable grounds. The prosecution can rely on a lack of any positive steps taken to ascertain whether the complainant consented.
Sexual assault with an underage person
In NSW the age of consent is 16 years. That is, a person who is under the age of 16 years by law does not consent to sexual intercourse. If you have been charged with sexual assault with a person under the age of 16 years the prosecution does not have to prove that the person did not consent. Consequently, the prosecution isn’t required to prove your knowledge as to the complainant’s lack of consent. All the prosecution has to prove is that you had sexual intercourse with a person, and that that person was under 16 years.
However, the High Court case of CTM v The Queen [2008] HCA 25 establishes that the defence of honest and reasonable mistake of fact is available. The defence may be available if you believed that the complainant was above the age of 16 years and that belief was reasonable. Once the defence is raised by the accused, the prosecution must prove beyond reasonable doubt that you did not honestly believe, on reasonable grounds, that the other person was above the age of 16 years. This defence commonly arises when people meet on dating or hook-up applications such as tinder, grindr, bumble and the complainant has been dishonest about his, her or their age.
This article is of a general nature and is not intended to be relied on in any particular circumstances