The Crimes Act (NSW) creates numerous offences relating to sexual or indecent assaults. The Act now codifies these offences. The offences relating to Sexual assault were reformed in 1989 when the government brought in new offences to replace the then existing offences.

The Act now provides for numerous offences for sexual misconduct and now includes aggravated forms of these offences. An example of an aggravated form of a sexual offence would be for example a teacher who forces a student to have sexual intercourse with him. Because the teacher is a person in authority to the victim and in a position of trust, then this is seen as an aggravating feature. These aggravated offences then carry larger penalties under the Crimes Act to deter this unlawful conduct.

The Crimes Act not only regulates "Rape" offences ( which are now referred to in the Act as "Sexual Assault") but also other forms of sexual misconduct. For example the Crimes Act creates offences for Indecent Assault, Assault with intent to have sexual intercourse, Committing acts of indecency, Procuring sexual intercourse by intimidation or coercion, Procuring carnal knowledge by fraud (e.g. pretending you are the victim's spouse), Sexual assaults upon children, Incest, Bestiality, Forced self manipulation and Misconduct relating to corpses. 

DEFINITIONS

Sexual Intercourse means:

Sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

Consent means:

A person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse.

1. A person who consents to sexual intercourse with another person:

• under a mistaken belief as to the identity of the other person; or
• under a mistaken belief that the other person is married to the person,

is to be taken not to consent to the sexual intercourse; and

2. A person who consents to sexual intercourse with another person under a mistaken belief that the sexual intercourse is for medical or hygienic purposes is taken not to consent to the sexual intercourse; and
3. A person who knows that another person consents to sexual intercourse under a mistaken belief referred to in paragraph (a) or (a1) is to be taken to know that the other person does not consent to the sexual intercourse; and
4. A person who submits to sexual intercourse with another person as a result of threats of terror, whether the threats are against, or the terror is instilled in, the person who submits to the sexual intercourse or any other person, is to be regarded as not consenting to the sexual intercourse; and
5. A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

Homosexual Intercourse

Homosexual Intercourse means:

1. sexual connection occasioned by the penetration of the anus of any male person by the penis of any person;
2. Sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another male person; or
3. the continuation of homosexual intercourse as defined in paragraph 1. or 2.

OFFENCES

Sexual Assault

This section creates an Offence of having sexual intercourse (Sexual intercourse as defined above) without the consent of the other person. This offence is a felony and cannot be dealt with summarily. Normally this offence is determined in the District Court. If the accused pleads Not Guilty to the charge then the guilt of the accused is determined by a jury.

Consent is an issue that is frequently at dispute when such charges are defended. This is normally because once a complaint of sexual assault has been made to the Police the alleged victim is normally taken to a hospital for a medical examination. When conducting the examination the doctor will use a "Sexual Assault Kit". The doctor will conduct their own examination as well as take swabs.

If there is evidence of semen present then there would be difficulty on the part of the accused to say that sexual intercourse did not take place. The investigating officer would then normally obtain a sample of the accused blood. The Police have the power to demand an accused to give a sample of blood, saliva or hair under the Crimes Act. This can then be used for examination to match up with the swab taken. This evidence can either clear an accused or be cogent evidence that sexual intercourse took place and that the accused was the person who took part in the sexual act.

This evidence is at times not available to a court if the victim did not make the complaint after the sexual intercourse occurred. In such cases the allegation that sexual intercourse took place can then be disputed by the accused at the trial and the jury would then need to be satisfied Beyond Reasonable Doubt that sexual intercourse took place.

An accused in such trials can admit that sexual intercourse took place but argue there was consent on the part of the victim. In such a situation the Crown must prove Beyond Reasonable Doubt that the accused knew there was no consent or that the accused was reckless as to whether the victim was consenting to the sexual intercourse.

The Crown in this case would call the victim to give evidence about the circumstances as to who the sexual intercourse occurred as well as what conversation or protest that was made by the victim at the time.

In the trial for a charge of sexual assault the victim can give evidence "In Cameral". That is in another room with the evidence taken by camera and shown in the court room of a Television screen. A young person is entitled to a support person to be with them when giving evidence of the offence for moral support.

The court can also make an order prohibiting publication of any part of the evidence taken at the trial. The court can also suppress the names of the parties.

As with all matters of domestic violence, the spouse who is the victim can be compelled to give evidence. This is to ensure that perpetrators of violence in the home cannot escape conviction on the basis of further intimidation or coercion of the victim. It is the intention of the parliament that a person who uses violence in the domestic situation is made to account for their actions instead of being allowed to escape the consequences of such violent acts.

This offence also can be committed in "Circumstances of Aggravation." When the offence is committed in circumstances of aggravation the maximum penalty is penal servitude for 20 years. 

Aggravated Sexual Assault

For this offence to be proved the Crown needs to prove Sexual Assault as discussed above as well as circumstances of Aggravation.

For this offence the circumstances of aggravation are a follows:

1. if at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby (e.g. the victim's child); or
2. at the time of, or immediately before of after the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument; or
3. the alleged offender is in the company of another person or persons; or
4. the alleged victim is under the age of 16 years; or
5. the alleged victim is (whether generally or at the time of the commission of the offence ) under the authority of the alleged offender; or
6. the alleged victim has a serious physical disability; or
7. the alleged victim has a serious intellectual disability.

The Crown would only need to prove one of the above aggravating circumstances, beyond reasonable doubt, in addition to the sexual assault to obtain a conviction for the aggravated form of the offence. 

Assault with Intent to have Sexual Intercourse

For this offence to be proved the Crown needs to prove that the accused, with intent to have sexual intercourse with the victim; EITHER

1. maliciously inflicts actual bodily harm on the other person or a third person who is present or nearby; OR
2. threatens to inflict actual bodily harm on the other person or a third person who is present or nearby by means of an offensive weapon or instrument.

This offence has a maximum penalty of penal servitude for 20 years. 

Indecent Assault

This offence requires the Crown to prove that an assault took place and that immediately before during or after the assault the accused committed an act of indecency on or in the presence of the victim. This is an indictable offence, however, can be dealt with summarily before a magistrate sitting alone. The indecent act can be by the same act as the assault itself.

If the Indecent Assault is committed in circumstances of aggravation then the maximum penalty is imprisonment for 10 years. 

Act of Indecency

An act of indecency is an act that a right minded person would consider to be contrary to community standards of decency. This section creates two offences. The first is where the act of indecency is committed with or towards a person who is under the age of 16 years and a second where the act of indecency is committed with or towards a person over the age of 16 years. Where the victim is under 16 years the penalty is imprisonment for 2 years and where the victim is above 16 the penalty is imprisonment for 18 months.

Consent of the victim is no defense to this charge.

For aggravated forms of this offence, when the victim is under sixteen years the maximum penalty is imprisonment for 5 years and where the victim is over 16 years imprisonment for 3 years. If the act of indecency is with or towards a person under the age of 10 years then the maximum penalty is imprisonment for 7 years. 

Sexual Intercourse - Child between 10 and 16

If a person has sexual intercourse with a child between 10 and 16 is liable to penal servitude for 8 years. If the victim is under the authority of the accused then the maximum penalty is penal servitude for 10 years.

There is a statutory defense to this charge if the accused believed the child was over 16 years and the child was in fact over 16 years. The accused would need to prove this to the court on the Balance of Probabilities. 

Attempting to have Sexual Intercourse with a Child under 10

Any person who attempts to have sexual intercourse with a child under 10 is liable to a maximum penalty of penal servitude for 20 years. 

Carnal Knowledge by Teacher etc

Any person who being a schoolmaster or teacher or a father or step-father who unlawfully and carnally knows a girl or attempts such act, being his pupil or daughter or step-daughter commits an offence and is liable to a maximum penalty of penal servitude for 8 years. 

Incest

If a male has sexual intercourse with a female over the age of 16 years who is his mother, sister, daughter or grand daughter is guilty of incest. This is probably due to the aim of the section to prevent inter-breeding. If a female has sexual intercourse with a male being her grandfather, father, brother, or son is also guilty of incest.

The maximum penalty is penal servitude for seven years. 

Homosexual intercourse with male under 10

A person who has homosexual intercourse with a male person under 10 years of age shall be liable to penal servitude for 25 years.

If a person attempts to have homosexual intercourse with a male person under 10 years of age is liable to penal servitude for 14 years.

If during the trial it is not proved that the child was under 10 years but was in fact between 10 and 16 years of age then the accused can be found guilty of the latter offence. 

Homosexual intercourse with male between 10 and 18

For this offence an accused is liable to penal servitude for 10 years. This section has been the subject of debate of recent years as Gay lobbies argue discrimination. This is on the basis that hetero-sexual men can have sex with a female when she turns 16 and so this section should not include males between 16 and 18.

If the homosexual intercourse is by a teacher then the penalty is 14 years penal servitude.

An attempt to commit this offence has a maximum penalty of penal servitude of 7 years. 

Acts of Gross Indecency

If a male person commits an act of gross indecency with or towards a male person under 18 years old shall be liable to imprisonment for 2 years. 

Sexual Assault by Forced Self-Manipulation

An accused found guilty of forcing another person to penetrate their anus or vagina themselves or with an object is liable to a penalty of penal servitude for 20 years. 

Bestiality

Bestiality is a sexual act between a human and an animal. To commit an act of bestiality is an offence which makes the accused liable to penal servitude to 14 years.

If a person attempts bestiality then they are liable to penal servitude for 5 years. 

Misconduct with regard to Corpses

Any person who:

• indecently interferes with any dead human body; or
• improperly interferes with, or offers any indignity to, any dead human body or human remains

is guilty of an offence and is liable to imprisonment for two years. 

FURTHER INFORMATION

This information is provided by the firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney 2000, or call them on (02) 9266 0708. 

Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become a leading Criminal Defence firm in New South Wales. We are committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.