Sexual Assault and Consent
The Crimes Act (NSW) 1900 makes it an offence for anyone to have sexual intercourse with another person, without that person's consent, knowing that the person does not consent to the sexual intercourse. If a person is found guilty of such offence, they will face a penalty of imprisonment for fourteen (14) years.
What is "sexual intercourse"?
Sexual intercourse includes:
sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female, or the anus of a person by:
- any part of the body of another person, or
- any object manipulated by another person,
except where the penetration is carried out for proper medical purposes, or
- sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person or
- cunnilingus i.e. oral sex performed by a person on the vulva or vagina of a female, or
- the continuation of sexual intercourse as defined in paragraph (a), (b), or (c).
When is there consent?
A person is taken to have consented to sexual intercourse if he or she freely and voluntarily agrees to the sexual intercourse.
When is there NO consent?
A person does not consent to sexual intercourse if:
- the person does not have the capacity to consent, including because of age or cognitive incapacity (e.g. intellectual disability, developmental disorder including an autistic spectrum disorder, etc.), or
- the person does not have the opportunity to consent because he or she is unconscious or asleep, or
- the person consents because of threats of force or terror, or
- the person consents because he or she is unlawfully detained.
Furthermore, a person who consents under the following mistaken belief does not consent to the sexual intercourse:
- A mistaken belief as to the identity of the other person, or
- A mistaken belief that the other person is married to the person, or
- A mistaken belief that the sexual intercourse is for medical or hygienic purposes.
The following are grounds on which it may be established that a person does not consent to sexual intercourse:
- if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or
- if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
- if the person has sexual intercourse because of the abuse of a position of authority or trust.
It is very important to remember that simply because a person did not offer any actual physical resistance to the sexual intercourse it is not, by reason only of that fact, to be regarded as consent.
Knowledge of consent
A person who has sexual intercourse with another person without the consent of the other person knows that there is no consent if:
- the person knows that the other person does not consent to the sexual intercourse, or
- the person is reckless as to whether the other person consents, or
- the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.
Victims of sexual assault are often ashamed, afraid and confused. If you are a victim of sexual assault, contact our Criminal Law solicitors for immediate legal advice. We will assist you from reporting the offence to the police, to prosecuting the perpetrator.These articles are intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this article without first obtaining specific professional advice.