In New South Wales, engaging in sexual activity without the explicit and willing agreement of the other person is a criminal offence. This crime is often referred to as sexual assault or rape and is outlined in Section 61I of the Crimes Act 1900 (NSW).
According to the law, an individual can face up to 14 years imprisonment if they engage in sexual intercourse with another person without their consent, and are aware that the other person does not agree to it.
This type of offence centres on non-consensual sexual acts, particularly those involving penetration, and can form the foundation for more severe charges involving aggravating factors.
Consent to engage in sexual activity is recognised under the law only when a person clearly and willingly agrees to participate at the time the act occurs. This agreement can be revoked at any point, whether verbally or through actions.
A lack of resistance, whether spoken or physical, does not, on its own, indicate that the person agreed to the act. Additionally, agreeing to one type of sexual behaviour does not automatically imply agreement to any other form of sexual activity.
Key aspects of consent include:
Silence or lack of resistance does not imply agreement.
Agreement to one act does not automatically extend to others (e.g., agreeing to protected sex does not mean agreeing to unprotected sex).
A person can retract their consent at any point.
To convict someone of sexual assault, the prosecution must establish three essential elements beyond a reasonable doubt:
There was sexual intercourse between the accused and the complainant.
The complainant did not consent to the act.
The accused either knew, ignored, or failed to reasonably consider whether consent was present.
If any of these components cannot be proven, a conviction cannot be secured.
Under NSW legislation (Section 61HA), sexual intercourse includes:
The penetration to any extent of the genitalia or anus of a person by –
Any part of the body of another person, or
Any object manipulated by another person, or
The introduction of any part of the genitalia of a person into the mouth of another person, or
The application of the mouth or tongue to the female genitalia, or
The continuation of sexual intercourse as outlined above, without the consent of the other person.
The law in NSW requires affirmative consent, meaning that a person must say or do something positive to show they are agreeing to the sexual activity at that moment. Consent must be given freely and voluntarily, and it can be withdrawn at any time during the interaction.
Key aspects of consent include:
Silence or lack of resistance does not imply agreement.
Agreement to one act does not automatically extend to others (e.g., agreeing to protected sex does not mean agreeing to unprotected sex).
A person can retract their consent at any point.
The law provides several scenarios where consent is deemed absent (Section 61HJ), such as when the individual:
Is asleep, unconscious, or heavily intoxicated
Does not clearly express agreement
Is underage or mentally incapable of giving valid consent
Is threatened, coerced, or manipulated into participating
Is misled about the nature or purpose of the act
Believes they are engaging with someone else due to deception
Consent is also invalid if it was obtained through abuse of power, intimidation, or unlawful restraint. The list in the legislation is not exhaustive, meaning other situations could also invalidate consent.
A person may be considered to have known that there was no consent if:
They knew the other person didn’t agree
They proceeded despite doubts about the other person’s willingness
They did not attempt to check whether consent was present when it was reasonable to do so
Even if the accused believed there was consent, this belief must be objectively reasonable. Failing to say or do anything to confirm consent may be used as evidence that no such reasonable belief existed.
Self-inflicted intoxication (e.g. from drugs or alcohol) cannot be used to excuse this failure. However, in certain situations, a diagnosed mental or cognitive condition might be relevant if it contributed significantly to the accused’s misunderstanding.
Sexual assault offences carry substantial custodial penalties ranging from a maximum sentence of 14 years imprisonment to a maximum sentence of life imprisonment. The seriousness of the offence and the presence of any aggravating circumstances will impact the maximum penalty and can significantly influence the outcome.
If you have been accused of a sexual assault-related offence, it is essential to seek legal advice immediately. ED Legal is equipped to assess the facts of your case and explore potential legal or factual defences that may be available. Sexual assault allegations often hinge on the evidence of a single complainant, with little to no corroborative or objective evidence. It is critical that you are fully aware of the specific allegations at the earliest possible stage to enable our legal team to determine whether any time-sensitive evidence should be obtained to support your defence.
There are various defences that may be applicable, depending on the circumstances of your case, including:
The sexual activity did not occur
The other person gave valid consent
The accused had a reasonable belief that the other person consented
A mistaken belief in consent (if the mistake was both honest and reasonable)
The accused was subjected to duress or coercion
Necessity, in exceptional and specific cases
Each of these defences can be utilised to challenge the prosecution’s case and potentially prevent a conviction. It is imperative that you contact our office without delay to preserve any evidence that could assist in your defence, including CCTV footage from locations near the alleged incident, text messages, or evidecnce from defence witnesses.
