Sexual assault is one of the most serious offences under the Crimes Act 1900 (NSW). It carries a maximum penalty of 14 years imprisonment. Elite Defence Lawyers provides discreet, confidential, and highly experienced legal support. We are available 24/7. Organise a confidential free initial consultation today.
Most commonly referred to as ‘sexual assault’, the offence of sexual intercourse without consent is contained under section 61I of the Crimes Act 1900 (NSW). This offence is committed when a person engages in sexual intercourse with another person without their consent.
The definition of ‘sexual intercourse’ is broad in that it refers to penetration, to any extent, of a female’s genitalia or the anus of any person by any part of, or object used, by the other person. It also includes the introduction of a penis into the mouth of another person and cunnilingus (i.e., the application of the mouth or tongue to the female genitalia).
An offence of sexual assault may be considered aggravated in circumstances where actual bodily harm is inflicted in the course of the incident or threatened, the accused person is in the company of others, the complainant is under the age of 16 years, is under the authority of the accused person, has a serious physical disability, or cognitive impairment. It will also be considered aggravated where the incident involves the accused breaking and entering, or depriving the complainant of their liberty.
Sexual assault can be distinguished from other sexual offences, such as indecent assault, in that it involves penetration. Matters such as indecent assault may involve touching someone on the buttocks, grabbing a woman's breast or kissing them, without consent.
Sexual assault is a serious charge that needs to be dealt with in the District Court as it is classified as ‘strictly indictable’.
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In New South Wales, the law supports ‘affirmative consent’. This means that a person must do or say something to indicate that they consent before sexual activity occurs.
Consent is defined as where a person freely and voluntarily agrees to sexual activity at the time of the sexual activity. It also notes that a person may, by words or conduct, withdraw consent to a sexual activity at any time. A person who does not offer physical or verbal resistance to a sexual activity is not to be taken to consent, by reason only of that fact.
The law specifies that a person consenting to a particular sexual activity does not mean they then consent to any other sexual activity, by reason only of that fact. An example provided includes that a person who consents to a sexual activity using a condom is not, by reason only of that fact, to be taken to consent to it without using a condom.
Circumstances in which it will be deemed there was ‘no consent’ include where the complainant:
does not say or do anything to communicate consent,
does not have the capacity to consent to the sexual activity (i.e., where they are under 16 years old or have a cognitive incapacity),
is so affected by alcohol or another drug and is thus incapable of consenting, or
is unconscious or asleep.
There will also be no consent where the person participates in the sexual activity because they are:
unlawfully detained,
coerced by an abuse of a relationship of authority, trust, or dependence,
blackmailed or intimidated,
induced to do so by fraud,
mistaken about the nature of the sexual activity, or the purpose of the sexual activity (i.e., where it is purported to be for health, hygienic or cosmetic purposes), or
mistaken about the identity of the other person, or whether the person is married to the other person.
It also includes circumstances where a complainant participates in sexual activity due to force, or fear of force or serious harm of any kind to the person, another person, an animal, or property, regardless of when the force or the conduct giving rise to the fear occurs, or whether it occurs as a single instance or as part of an ongoing pattern.
Fraudulent inducement will not be considered if it is purely based on the person misrepresenting their income, wealth, or feelings.
This list is not exhaustive and is stated not to limit the grounds on which it may be established that a person does not consent.
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The prosecution are required to prove, beyond a reasonable doubt, that:
You had sexual intercourse with the complainant,
The complainant did not consent,
You knew the complainant did not consent, were reckless as to whether the other person consented, or had no reasonable grounds to believe the other person consented.
Each element of the offence is required to be proven by the prosecution. Common disputes include whether consent existed, that the accused genuinely and reasonably believed there was consent, or where the matter does not actually involve penetration (i.e., there was no intercourse).
It is integral to obtain early and professional advice from an experienced lawyer who deals with sexual assault cases.
The maximum penalty for sexual intercourse without consent is 14 years’ imprisonment. If the offence is committed in circumstances of aggravation, the maximum penalty applicable increases to 20 years imprisonment. Both types of the charge are required to be finalised in the District Court.
It is important to remember that the actual penalty imposed by the court will depend on the objective seriousness of the offence, your personal circumstances, rehabilitative efforts, and criminal history, among other factors. However, most cases of sexual assault will involve some term of full-time imprisonment.
It is also possible to receive a Community Corrections Order is a good behaviour bond, with conviction. This sentence does not involve going to jail and instead includes conditions such as community service work or supervision by a Community Corrections Officer.
Sentencing factors that the court will consider include any ‘aggravating’ factors such as the seriousness of the offence (i.e., if it went for a prolonged period of time, involved violence, or a vulnerable victim) and an offender’s criminal history if it involves repeat offending.
Mitigating factors (which may make a matter less serious) include an early guilty plea, remorse, insight into the offending, having prior good character and no criminal history, as well as rehabilitative efforts. Rehabilitative efforts may include counselling, seeing a psychologist, or participating in treatment programs.
Common defences to sexual assault include:
Where no intercourse occurred,
Highlighting that there actually was consent,
Proving that the accused had reasonable grounds to believe that the complainant consented,
Mistaken identity.
False allegation.
In terms of defending a sexual assault charge, it will be critical for the brief of evidence to be carefully analysed. This may involve challenging DNA evidence, pointing out any inconsistencies in the complainant’s statement, and analysing CCTV as well as phone and digital records. Many cases will turn on the credibility of witnesses - primarily the complainant and the accused.
Being accused or charged with sexual assault is one of the most serious and confronting experiences a person can face. The consequences are life-changing—ranging from imprisonment and a criminal record to lasting damage to your reputation, career, and family relationships. In these situations, early legal advice is not just helpful, it is critical.
From the moment an allegation is made, every decision you take matters. Speaking to police without guidance, misunderstanding your rights, or failing to preserve evidence can seriously affect the outcome of your case. By seeking advice early, you give your defence team the best opportunity to prepare a strategy, gather supporting material, and challenge weaknesses in the prosecution’s case.
At Elite Defence Lawyers, we have extensive experience representing clients in sexual assault matters across NSW. We provide confidential, non-judgmental advice and guide you through police interviews, bail applications, and court proceedings. Our focus is on protecting your rights, minimising risks, and securing the best possible outcome.
If you are under investigation or have been charged, don’t delay. Contact Elite Defence Lawyers immediately to ensure your case is handled with the care and skill it demands.
If you have been charged with sexual assault, it will be integral to:
Contact Elite Defence Lawyers immediately,
Take careful note of your version of events,
Compile any evidence (i.e., text messages, photos, videos),
Do not contact the complainant.
Ensure you are following any bail or AVO conditions carefully.
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