UNDERSTANDING CONSENT WITH A SEXUAL ASSAULT CHARGE

The law aims to uphold a model of 'affirmative consent,' meaning an individual must actively indicate their agreement to engage in sexual activity through words or actions. Consent is defined as a person's free and voluntary agreement to sexual activity at the time it occurs, as outlined in section 61HI of the Act.

It's crucial to understand that consent can be withdrawn at any time during sexual activity, through words or conduct. Any sexual activity occurring after consent has been withdrawn is considered non-consensual.

Simply not offering physical or verbal resistance to sexual activity does not imply consent.

Moreover, consent to one type of sexual activity does not automatically imply consent to other types of sexual activity. For instance, consenting to sex with a condom does not mean consent to sex without one.

A lack of consent may arise if a person does not give their consent, is incapable of giving consent, or is coerced into giving consent through force, fear, or threats.

Section 61HJ details circumstances where consent is absent, including when the complainant:

• Does not communicate consent verbally or through actions.

• Lacks the capacity to consent due to being under 16 years old or having a cognitive incapacity.

• Is too intoxicated by alcohol or drugs to consent.

• Is unconscious or asleep.

Additionally, consent is absent if participation in sexual activity is due to:

• Unlawful detention.

• Coercion through an abuse of authority, trust, or dependence.

• Misunderstanding the nature or purpose of the sexual activity, such as believing it to be for health, hygiene, or cosmetic reason (although fraudulent inducement based solely on misrepresentation of an individual income, wealth, or feeling is not considered)

• Misunderstanding the identity of the other person or marital status.

• Force, fear of force, or serious harm to themselves, others, animals, or property, regardless of when these threats occur or whether they are part of a pattern.

There is also no consent if participation is due to coercion, blackmail, intimidation, or fraudulent inducement. This list is not exhaustive and does not limit other potential grounds for establishing a lack of consent.

ASSAULT WITH INTENTION TO HAVE INTERCOURSE

If the sexual assault occurs under aggravating circumstances, the penalty increases to a maximum of 20 years of imprisonment. Aggravating circumstances may include inflicting or threatening to inflict bodily harm, the victim having a serious physical disability or cognitive impairment, or kidnapping, among other factors.

PENALTIES FOR CONVICTION

Any individual who engages in sexual intercourse with another person without their consent is liable for the crime of sexual assault, punishable by up to 14 years of jail.

If the sexual assault occurs under aggravating circumstances, the penalty increases to a maximum of 20 years of imprisonment.

THE DEFENCE

Sydney Defenders employ various defence strategies to secure optimal outcomes for our clients. Some defences offer a complete exoneration, resulting in their dismissal. Other strategies constitute partial defences, potentially leading to a reduced sentence or a milder consequence than without our representation.

• Actual Innocence: Simply asserting innocence is insufficient to counter sexual assault allegations. Evidence such as CCTV footage placing you elsewhere during the alleged offence can create reasonable doubt, potentially resulting in a not guilty verdict.

• Consent: The concept of consent is complex therefore, making it challenging to prove. In New South Wale’s law, consent is not valid if the person is asleep, unconscious, intoxicated, mentally incapable of understanding the situation, coerced, unlawfully detained, or subjected to abuse of trust. If any of these circumstances can be established, a consent defence cannot be used. Establishing that the accused received voluntary consent from the victim is crucial for this defence, however often require concrete evidence to support the claim.

• Mental Health Application: This defence applies when it can be demonstrated that the accused had a significant mental impairment and did not comprehend that their actions were morally wrong. It must be shown that their actions resulted from a mental illness that impaired their understanding of the assault and it's consequences.