Charged with Sexual Assault (Intercourse without consent)?

Sexual Assault offences, sadly, are among the most prevalent sexual offences in NSW, and they can significantly alter the trajectory of your future. The repercussions of a sexual assault charge extend far beyond the courtroom, affecting your reputation, livelihood, personal relationships and so much more. 

Times like these can leave you in a state of disbelief and uncertainty, which is why swift action is crucial. It is imperative to secure immediate legal representation from experienced professionals who will tirelessly advocate for your rights and defend your innocence. 

At Faraj Defence Lawyers, we offer compassionate support and expert legal guidance to navigate you through this difficult period. Don't face these allegations alone, contact one of our specialised sexual assault lawyers today at (02) 8896 6034, and allow our team to listen, advise and fight for your justice.

Why Choose Faraj Defence Lawyers for your Sexual Assault Charge?

When facing the weight of a sexual assault charge, choosing the right legal representation can be the difference between a future filled with unfair consequences or one where your innocence is fiercely protected. At Faraj Defence Lawyers, we stand as your beacon of hope and unwavering support with unparalleled expertise in navigating the intricacies of sexual assault offences. Here's why choosing us is your best course of action:

What is Sexual Assault (Intercourse without consent/rape)?

Sexual Assault, also known as rape or intercourse without consent is a punishable crime in NSW and is defined under Section 61I of the Crimes Act 1900 (NSW), “

Any person who has sexual intercourse with another person without the consent of the other person who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years”. 

It encompasses any non-consensual sexual activity, including sexual intercourse. Essentially, any sexual act forced upon an individual without their explicit consent constitutes sexual assault.

More so, sexual assault also includes various other offences, such as aggravated sexual assault, aggravated sexual assault in company, and sexual assault of a child. Each offence carries its own set of legal implications and potential consequences, however having that base offence present within the crime.

What does the prosecution need to prove?

To establish guilt in a sexual assault case, the prosecution must prove the following 3 key elements to a standard of beyond reasonable doubt:

• Sexual Intercourse: The prosecution must demonstrate that sexual intercourse occurred between the accused and the alleged victim.

• Absence of Consent: It must be shown that the sexual activity took place without the consent of the other person involved. This means that the alleged victim did not willingly agree to engage in sexual intercourse.

• Knowledge of Lack of Consent: The prosecution needs to establish that the person accused of the offence was aware or knew that the other person did not consent to the sexual activity. 

If the prosecution is unable to establish any of the three elements mentioned above, the charge may be dismissed. Identifying this early on with the help of your lawyer allows for negotiation aimed at receiving early dismissal. Seeking experienced advice in such matters is highly recommended.

What is Sexual Intercourse?

Sexual intercourse is defined in section 61HA of the Crimes Act 1900 as: 

• The 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,

• The introduction of a penis into the mouth of another person,

• Cunnilingus (i.e., the application of the mouth or tongue to the female genitalia), or

• The continuation of any of the mentioned activities.

Penetration carried out solely for proper medical or hygienic purposes will not be considered sexual intercourse.

What is consent

The law seeks to reflect a model of ‘affirmative consent’ which means that a person must do or say something to indicate that they consent before sexual activity.Consent is defined as where a person freely and voluntarily agrees to sexual activity, at the time of the sexual activity, as per section 61HI of the Act.

It is important to note that a person may, by words or conduct, withdraw consent to sexual activity at any time during the interaction. Sexual activity that occurs after consent has been withdrawn is deemed to occur without consent.

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.

Furthermore, just because a person consents to a particular sexual activity, this does not mean they 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.

A lack of consent can occur where a person does not give their consent, is incapable of giving consent, or gives their consent because of the use of force, fear, or a threat.

Section 61HJ outlines various circumstances in which there are no consent, including 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:

• the person or another person is unlawfully detained,

• the person is coerced by an abuse of a relationship of authority, trust, or dependence,

• the person is 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

• the person is mistaken about the identity of the other person, or whether the person is married to the other person, or 

• 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.

There will also be no consent where the person participates in the sexual activity because of coercion, blackmail, intimidation, or a fraudulent inducement. Notably, fraudulent inducement will not be considered if it is purely based on the person mispresenting their income, wealth, or feelings. This list is not conclusive and is stated to not limit the grounds on which it may be established that a person does not consent.

What knowledge about consent is required?

The Court will deem that a person knew that another did not consent to a sexual activity if they ‘actually knew’ or were ‘reckless’ as to whether the other person consented to the sexual activity.

A person is reckless where they realise the possibility that the other person was not consenting but go ahead regardless of whether the other person was consenting or not.

It is also reckless where the defendant failed to consider whether the other person was consenting, and went ahead, even though the risk that the other person was not consenting would have been obvious. 

Furthermore, a person will be taken to know that another does not consent if any belief that they had, or may have, that the other person consented is not reasonable in the circumstances.

An example of an ‘unreasonable’ belief includes where the defendant did not, within a reasonable time before or at the time, say or do anything to determine whether the other person consents.

However, this will not be applicable where the accused had a cognitive or mental health impairment at the time, which was a substantial cause of them not saying or doing anything. 

The duty to prove this impairment is on the defence, on the balance of probabilities.

The Court will consider all the circumstances of the matter including what the defendant said or did, if anything. It is important to note that the Court will be unable to consider any self-induced intoxication of the defendant.

What are the possible defences to beat Sexual Assault charges?

When faced with sexual assault charges, defendants may have several potential defences to contest the allegations. These defences include:

• Proving intercourse did not happen: The defendant may argue that sexual intercourse did not occur between them and the alleged victim, thereby challenging the core element of the offence.

• Proving that consent was given: If the defendant can demonstrate that the alleged victim willingly consented to the sexual activity, it could serve as a defence against the charges. 

• Proving that there were reasonable grounds to believe that the alleged victim consented: The defendant might assert that they had reasonable grounds to believe that the alleged victim consented to the sexual activity. This defence relies on whether the defendant's belief in consent was objectively reasonable given the circumstances. 

• Honest and reasonable mistake: If the defendant honestly and reasonably believed that the alleged victim consented to the sexual activity, they may argue that their actions were based on this mistaken belief, which could negate the intent required for the offence.

• Duress: In cases where the defendant engaged in the sexual activity under duress or coercion, they may argue that their actions were not voluntary and, therefore, should not be deemed criminal. 

• Necessity: In cases where the defendant engaged in the sexual activity under duress or coercion, they may argue that their actions were not voluntary and, therefore, should not be deemed criminal.

These defences aim to challenge the prosecution's case and raise doubts about the defendant's culpability. Depending on the specifics of the case, one or more of these defences may be applicable in fighting sexual assault charges.

What are the penalties for Sexual Assault?

Sexual assault is a serious offence carrying significant penalties, including a maximum penalty of 14 years imprisonment and a standard non-parole of 7 years if heard in a district court. This means that convicted individuals must serve a minimum full-time jail term before being eligible for parole, allowing them to serve the remainder of their sentence within the community.

It's important to note that the standard non-parole period is applicable only to certain offences that fall within the mid-range of objective criminality for their type. While it serves as a guideline for judges in determining appropriate sentences, its imposition is not mandatory in every case.

Other more serious sexual assault cases including aggravated sexual assault, prohibited under section 61L of the Crimes Act 1900 (NSW) has a maximum penalty of 20 years imprisonment and a non-parole time of 10 years. Depending on your case and your offence, the penalties can change drastically, changing the favorability of the outcomes of your specific case. Here are some examples:

While imprisonment is the most common penalty applicable to Sexual Assault offences, other penalty alternatives for this offence may include: 

• Section 10 dismissal 

• Conditional release order without conviction 

• Fine

• Conditional release order with conviction 

• Community corrections order 

• Intensive corrections order 

Let Faraj Defence Lawyers defend against your sexual assault charge

Facing a sexual assault charge can be overwhelming and frightening, but you don't have to navigate it alone. Seeking legal representation is crucial in such situations to ensure your rights are protected and your case is vigorously defended. 

At Faraj Defence Lawyers, we understand the gravity of sexual assault allegations and the impact they can have on your life. With our expert legal advice and strategic defence strategies, we can make a real difference in your case. Our experienced team will provide you with compassionate support, calculated guidance, and relentless advocacy to fight for the best possible outcome.

If you or someone you love has been charged with the offence of Sexual Assault, contact us for a free initial consultation by calling (02) 8896 6034, or by booking a meeting at our Parramatta Office.