Sexual Assault Charges in NSW

The offence under s 61I

Crimes Act 1900 (NSW), s 61I: a person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

Sexual assault is a strictly indictable offence: it cannot be finalised in the Local Court and, if it proceeds, will be determined in the District Court, usually before a jury. Sexual intercourse is defined broadly by the Act and extends beyond the ordinary meaning of the term; whether the conduct alleged meets the statutory definition is itself an element the prosecution must establish.

It is worth stating plainly what the structure of the offence means. The prosecution bears the onus of proving every element beyond reasonable doubt. The accused does not have to prove consent, or anything else. That is not a technicality; it is the framework within which every one of these cases is decided.

What the prosecution must prove

To convict a person of sexual assault under s 61I, the prosecution must prove each of the following beyond reasonable doubt:

• Sexual intercourse, as defined by the Act, took place between the accused and the complainant;
• The complainant did not consent to it, within the statutory meaning of consent; and
• The accused knew the complainant did not consent — which the Act extends to include being reckless as to whether the complainant consented, or believing the complainant consented where that belief was not reasonable in the circumstances.

In most contested cases the first element is not in dispute and the trial turns on the second and third: whether there was consent in fact, and what the accused knew or reasonably believed about it. Those questions are governed by the consent provisions of the Act, which were substantially rewritten in 2022.

Consent under NSW law — the 2022 affirmative consent reforms

Crimes Act 1900 (NSW), ss 61HI–61HK (as amended by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021, commenced 1 June 2022): consent means free and voluntary agreement at the time of the activity; a belief in consent is not reasonable unless the accused said or did something to find out whether the other person consented.

From 1 June 2022, NSW operates what is commonly described as an affirmative consent model. Its key features:

• Consent is free and voluntary agreement at the time of the sexual activity (s 61HI). It can be withdrawn at any time, and consenting to one sexual activity is not consent to another.
• Silence and absence of resistance are not consent. A person who does not say or do anything to communicate consent does not consent — the law does not infer agreement from a lack of protest or physical resistance.
• The Act sets out circumstances in which there is no consent (s 61HJ) — including where a person lacks capacity, is so affected by alcohol or drugs as to be incapable of consenting, is asleep or unconscious, participates because of force or fear of harm, coercion or intimidation, or is mistaken about the nature of the activity or the identity of the other person.
• Most significantly for the knowledge element: under s 61HK, an accused person's belief in consent is not reasonable unless, within a reasonable time before or at the time of the sexual activity, the accused said or did something to find out whether the other person consented. A belief based on nothing said or done to ascertain consent will not, save for limited exceptions concerning cognitive or mental health impairment, answer the charge.

The practical effect is that the trial focus has shifted from the complainant's conduct to the accused's: what steps, if any, were taken to ascertain consent. For conduct alleged to have occurred before 1 June 2022, the earlier consent provisions apply — which version of the law governs a particular allegation is one of the first questions to resolve, and it can matter considerably.

The age of consent, briefly

The age of consent in NSW is 16. A person under 16 cannot consent to sexual activity as a matter of law, and sexual offences against children are charged under separate provisions with their own, more serious penalty structures. Where the complainant is 16 or 17, the special care provisions can also apply: sexual activity may be an offence where the other person stands in a defined relationship of authority or care — a teacher, a step-parent or guardian, a custodial officer, or a health professional treating the young person — even though the young person is over the age of consent. That is the part of the age-of-consent question most often misunderstood.

How the evidence is given — complainant evidence procedures

Sexual assault proceedings are conducted under procedural rules that differ from other criminal trials, and anyone facing a charge should understand them from the outset:

• The complainant ordinarily gives evidence by CCTV or other remote means, or from behind a screen, rather than in the courtroom in the conventional way, and is entitled to a support person.
• The court is ordinarily closed to the public while the complainant gives evidence, and the complainant's identity is protected from publication.
• An accused person who is unrepresented cannot personally cross-examine the complainant; the questions must be put through a court-appointed intermediary. This is one of several reasons these trials are not matters to face without representation.
• Evidence about the complainant's sexual experience or activity is inadmissible except within narrow statutory exceptions, and requires leave of the court.
• If there is a retrial, the complainant's evidence from the first trial may be replayed from the recording rather than given again.

These rules shape how a defence is prepared and run. Cross-examination in a sexual assault trial is a precise, constrained exercise, and the groundwork — the analysis of the statements, the electronic material, the timeline — is done long before the hearing.

Penalties

The maximum penalty for sexual assault under s 61I is 14 years' imprisonment, with a standard non-parole period of 7 years — a statutory guidepost indicating Parliament's view of the non-parole period for an offence in the middle of the range of objective seriousness. Where circumstances of aggravation are alleged — such as the infliction of actual bodily harm, an offence in company, or a complainant under 16 — the charge will instead be laid under s 61J as aggravated sexual assault, which carries a higher maximum and a higher standard non-parole period.

Sentencing in this area is governed by the objective seriousness of the conduct and the subjective circumstances of the offender, assessed case by case. It would be wrong to suggest any typical outcome; every matter turns on its own facts.

How Lenz Legal approaches sexual assault matters

Dean Lenz is an Accredited Specialist in Criminal Law and has defended sexual assault allegations for more than twenty years. These cases are prepared methodically and discreetly: the full brief is obtained and analysed against the elements; the electronic record — messages, call data, location material — is examined closely, because it frequently bears on consent and credibility in ways the statements alone do not; and the version of the consent law applicable to the allegation is identified at the outset.

Two things are said to every client at the first conference. First, do not take part in any police interview before receiving advice — an account given early, without the brief and without advice, cannot be taken back. Second, the presumption of innocence is not a slogan: it is the standard the prosecution must meet, and holding the prosecution to it is the whole of the defence task.

Sexual assault — questions answered