Sexual
Offences

There are a large number of complex laws that deal with sexual conduct. This page does not attempt to cover them all or provide a comprehensive description of those it does cover. A selection of common offences are described for informational purposes. 

If you are charged with any sexual offence, you should immediately contact an experienced defence lawyer for advice. Christian Hearn has extensive experience dealing with people charged with all kinds of sexual offence.

SEXUAL ASSAULT

The basic offence of sexual assault is committed where a person has sexual intercourse with another person without the consent of that person, knowing that person was not consenting.

Sexual intercourse includes any time that a person penetrates the vagina of a female, or the anus of any person with any part of their body, or with an object. It also includes oral sex, both felatio and cunnilingus.

While occasionally sexual assault cases turn on whether sexual intercourse took place, far more often the question is about consent. There are two parts to the question of consent. Firstly, the offence requires that the complainant was not in fact consenting. Secondly, if the complainant was not consenting, the accused must have known that he or she was not consenting.

The first question is conceptually straightforward and is really just a question of whether the complainant is believed when he or she says that there was no consent. The second question is much more complex and hard to prove. This is because it requires the prosecution to prove what was going on in the mind of the accused.

While the offence states that the accused must have ‘known’ that the complainant was not consenting, knowledge in this context has a wider meaning than it does in common usage. It includes being reckless about consent and lacking reasonable grounds to believe the other person is consenting. Often a conclusion can be drawn about the accused’s state of mind from the circumstances in which sexual intercourse took place.

The law provides some specific situations in which there cannot be consent including where a person is unconscious or asleep, where he or she agrees to have sex after threats or where he or she lacks the cognitive capacity to consent.

This is a large and complex area of law. If you are charged with sexual assault you should immediately contact a skilled and experienced defence lawyer for advice.

Maximum penalty: 14 years imprisonment

AGGRAVATED
SEXUAL ASSAULT

An aggravated offence is a more serious version of the offence described above. Factors that make the offence more serious include (among other things) the following things:
 

  • Actual bodily harm inflicted on the victim

  • Two or more people were invovled in the offence

  • The victim was under 16 years of age

  • The victim had a physical disability or cognitive impairment


Maximum penalty: 20 years imprisonment

AGGRAVATED SEXUAL
ASSAULT IN COMPANY

An offence of sexual assault committed by two or more persons acting in company with each other will be elevated to the utmost seriousness by the addition of any of the following circumstances:
 

  • Actual bodily harm was inflicted on the victim

  • A threat was made to inflict actual bodily harm on the victim, or any other person who was nearby, with an offensive weapon

  • The victim was deprived of his or her liberty


The sentence for an offence falling into this category can include natural life in gaol. While the court can choose to impose a lesser sentence, in any case where there is a plea of guilty or a conviction, the punishment will be severe.

Maximum penalty: Life imprisonment

INDECENT ASSAULT

There are two basic ways in which this offence can be committed:
 

  • The commission of an assault which is in and of itself indecent

  • A regular assault preceded by or followed by an act of indecency in the presence of the victim


Indecent means ‘contrary to the ordinary standards of respectable people in this community.’ For an assault to be indecent it must have a sexual connotation or overtone. Sometimes this will be clear; for instance, where the accused touches the breasts or bottom of a woman. Where the type of touching does not of itself have a sexual connotation, it may still be indecent if the intention of the accused was to attain sexual gratification. For instance, touching of feet may be indecent if the accused obtains sexual gratification from it.

How serious an offence is will depend on the nature of the act. For instance, touching breasts may be considered less serious than touching genitalia.

Maximum penalty: 5 years imprisonment

AGGRAVATED
INDECENT ASSAULT

Where an offence of indecent assault is accompanied by certain other circumstances, it is considered to be more serious. The relevant circumstances are as follow:
 

  • The offence was committed by 2 or more persons acting together

  • The victim was under the authority of the accused

  • The victim had a physical disability

  • The victim had a cognitive impairment


If the victim was under the age of 16 the offence is more serious again and carries a maximum penalty of 10 years imprisonment.

Maximum penalty: 7  years imprisonment

Maximum penalty: 10 years imprisonment (if the victim is under 16)

ACT OF INDECENCY
WITH CHILD

This offence can only be committed where the victim is under 16 years of age. It is different from indecent assault in that it does not require any touching of the victim. The offence is committed if the accused engages in an act of indecency toward the child, or with the child. The offence can be committed even if the child is a willing participant.

The offence can also be committed by inciting the child to engage in an act or indecency. In either case this charge is regularly dealt with in the Local Court. Having said that, the Courts take such conduct seriously and gaol sentences can be imposed.

Maximum penalty: 2 years imprisonment

ACT OF INDECENCY WITH
PERSON AGED 16 OR ABOVE

This offence is the same as that described above, except it applies where the victim is 16 years old or above. For this reason the applicable maximum penalty is lower.


Maximum penalty: 18 months imprisonment

AGGRAVATED
ACT OF INDECENCY

There are number of circumstances in which an act of indecency is considered substantially more serious. The following are factors that will aggravate (make more serious) an offence:
 

  • The offence was committed by 2 or more persons acting together

  • The victim was under the authority of the accused

  • The victim had a physical disability

  • The victim had a cognitive impairment
     

In the case of an act of indecency with or toward a person aged 16 or above, the presence of any one of these factors will increase the maximum penalty to 3 years imprisonment. Where the victim is a child the maximum penalty increases to 5 years.
 

If the child is under the age of 10 the maximum penalty increases to 7 years imprisonment.
 

If the act of indecency is committed with / toward a child, and the accused knows that the act is being filmed for the purpose of created child abuse material the maximum penalty jumps to 10 years imprisonment.


Maximum penalty: 3 years imprisonment
Maximum penalty: 5 years imprisonment (where the victim is under 16)
Maximum penalty: 5 years imprisonment (where the victim is under 10)

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