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Key Takeaway

Here we outline the age of consent laws in Australia; sexual assault, sexual act, sexual touching and harassment offences, defences and their penalties; the statutory rape laws in NSW; how alcohol or drugs affect a rape case, rape statistics in Australia, and the various ways your knowledge as to a lack of consent can be proved in court.

This article provides a simple guide on the law on adult sexual assault offences committed by adults against other adults. Click here for an outline on the law, penalties and defences for child sex offences.

This original article has been written and kept up-to-date by our experienced Sexual Assault lawyer Sydney.

Age of Consent Australia

The age of consent in Australia is 16-years or above, according to section 66C of the Crimes Act 1900 (NSW). The legal age of consent in NSW or sexual consent means that it is a crime punishable by imprisonment to have sex or engage in any sexual activity with any person aged under 16-years even if that person consents to it. The penalties for this offence depend on the actual age of the victim, and range between 10 – 16 years imprisonment.

Here is an outline on the legal age of consent laws across each State and Territory of Australia.

State or Territory Legal Age of Consent
New South Wales 16 or more
Queensland 16 or more
Victoria 16 or more
Western Australia 16 or more
South Australia 17 or more
Tasmania 17 or more
Northern Territory 16 or more
Australian Capital Territory 16 or more

Here is more on the age of consent across other States and Territories of Australia.

 

Why Is The Age of Consent So Old in New South Wales?

According to legal sex age laws, a person aged under 16-years is considered by the law as incapable of giving informed consent for sexual activity.

The consequence of having sex or engaging in sexual activity with a person under age varies with a maximum penalty of between 10-years to a life sentence of imprisonment. We explore these in more detail further below.

 

Define Consent | What is Consent?

Consent is when a person freely and voluntarily agrees to sexual activity at the time of it, according to section 61HI. Consent laws consider consent as involving a conscious and voluntary agreement to engage in sexual activity.

Consent needs to be there across various sexual activities during the sexual continuum.

In addition, the affirmative consent laws in NSW say that:

  • If consent is being withdrawn during sexual activity, that withdrawal must be communicated by words or conduct by the other person for it to amount to no consent.
  • If sexual activity continues after consent has been withdrawn, then this will amount to no consent.
  • Failure to resist a sexual activity does not, by reason only of that fact, amount to consent.
  • Consent to a particular sexual activity doesn’t mean, for that reason alone, consent is present to any other sexual activity. ie stealthing.
  • Consent being present during sexual activity on one occasion is not, by that reason alone, consent to sexual activity on another occasion.

Claiming a defence of consent where the person you have been involved in sexual activity with was under the age of 16-years at the time is not considered a defence. However, there may be other possible defences available discussed further in this article.

 

What is Not Considered Consent? | When Can a Person Not Give Consent?

Other than the other person saying ‘no’, the law considers there to be no consent by the other person(s) if any one or more of the following circumstances apply:

  1. Absence by the other person to communicate consent. This applies if the other person ‘freezes’. ‘Freezing’ and not saying or doing anything to communicate a consent is not considered consent under the current laws.
  2. The other person had no capacity to consent due to age or cognitive incapacity or soo drug affected that he/she is incapable of consenting,
  3. The other person did not have the opportunity to consent because he/she was asleep or unconscious,
  4. The other person consented because of force or fear of serious harm. This includes threats of harm to someone else, property or an animal,
  5. The other person consented due to being coerced, blackmailed, or intimidated, or due to being unlawfully detained, or overborne by abuse from a relationship of authority, trust or dependence, or due to fraudulent inducement,
  6. The other person was mistaken about the nature or purpose of the sexual activity, or mistaken about your identity, or mistaken about being married to you.

Sexual Assault | What is Sex

What is the sexual assault definition? It includes a range of criminal sexual activity, conduct or sexual assault cases in NSW, usually involving the absence of consent in relation to sexual intercourse, sexual touching or act, indecent assault, aggravated indecent assault, sexual harassment, revenge pornography, sending unsolicited nudes to someone, filming a person in a private act, voyeurism, up-skirting and incitement to commit a sexual offence.

Sexual assault in NSW carries maximum penalties ranging from 18-months to life imprisonment depending on the type of sexual assault, age of the victim and circumstances of the assault. We look at this in more detail further below.

In determining what constitutes sexual assault, it’s important to understand that it encompasses a range of illegal sexual conduct and sex crimes under Australian sex laws in NSW.

These are also known as the different types of sexual assault offences in NSW reflected in Part 3 of Division 10, 10B,15B, 15C of the Crimes Act 1900 (NSW).

 

What is sex? | What is Sexual Intercourse?

To define sex, it can mean gender or sexual intercourse or activity. It is not illegal to have sexual intercourse or engage in sexual activity provided it does not break the law.

To define sexual intercourse, you need to look no further than section 61HA, which says, “sexual intercourse” includes:

  • The sexual penetration of the alleged victim’s genitalia or anus by any part of your body i.e. penetrating the anus or vagina,
  • Introduction of your penis into the alleged victim’s mouth,
  • Oral stimulation of the victim’s genitalia (penis or vagina),
  • Penetrating the lips or licking or sucking the genitalia,
  • Using any object to penetrate the genitalia.

What is sexuality? And can we define sexuality? Sexuality can be defined as is a way humans experience and express themselves sexually in context of biology, erotic, physical, social, emotional, spiritual feeling and conduct. However, sexuality is a very broad general word which varies in context. Sexuality does not have a specific definition.

Sexual Rape | Sexual Intercourse Without Consent

To define rape, you must consider the legal definition of rape in a sexual context by reference to not only the rape meaning, but the definition of sexual intercourse without consent under the law in NSW expressed above in section 61HA.

Rape is a crime with a maximum punishment of between 14-years to life imprisonment depending on the type of rape and age of the victim.

Drug Facilitated Sexual Assault Offences

The law treats a person who is substantially intoxicated from drugs or alcohol as being incapable of giving consent to sex. As a result, this means that it is considered rape to have sex with a person who is substantially drugged or intoxicated from alcohol. This carries the same penalties as sex without consent in NSW.

Drug facilitated sexual assault involves the administration of a drug that incapacitates or renders the victim unconscious or helpless, effectively causing the victim to become incapable of consenting or withholding consent. A victim may then be unconscious either during the entirety or part of the sexual assault. The drug may also have the effect of the victim being incapable of remember the incident.

The types of drugs commonly used in drug facilitated sexual assaults include, alcohol, which decreases inhibitions, causing the victim to become incapacitated. Other common drugs include, GHB, Rohypnol, Ketamine and other sedative hypnotics.

A combination of taking alcohol together with any of these drugs commonly have the effect of fast tracking and intensifying the effects on a victim. While a victim may not be able to recall of the sexual assault, he/she will only be aware or be able to sense that they were at least violated.

Many drug-facilitated sexual assaults are not even reported. Victims are commonly reluctant at coming forward to report it due to embarrassment, guilt and a perceived view of not being believed because of an inability to recall the assault.

 

Statutory Rape & Penalties

In defining what is rape in Australia, we look at statutory rape in the NSW offence of sexual assault (section 61I). Statutory rape is the sexual intercourse without consent, carrying penalties of up to 14-years imprisonment.

This offence also has a 7-years standard non-parole period. This means, the minimum Full time jail time to be spend behind bars before being eligible for release on a parole period to serve the balance of the sentence in the community.

The standard non-parole period only applies to certain standard non-parole period offences. It only applies to cases that are considered to be in the mid-range of objective criminality for its type of offence. The sentencing Judge is not required to impose it in every case, rather it’s to be used only as a guide to help the Judge impose an appropriate sentence penalty to a convicted rapist.

These maximum penalties also apply to anyone who unsuccessfully tries to rape a person.

There is a separate offence carrying up to 20-years imprisonment for any person who assaults another person with the intention to have sexual intercourse under section 61K. A standard non-parole period does not apply to this offence.

Rape & Sexual Intercourse Without Consent section 61I
Maximum Penalty 14-years imprisonment
Standard Non-parole Period 7-years
Aggravated Sexual Assault section 61J
Maximum Penalty 20-years imprisonment
Standard Non-parole Period 10-years
Aggravated Sexual Assault in Company section 61JA
Maximum Penalty Life imprisonment
Standard Non-parole Period 15-years
Assault with Intent to Rape or Have Sexual Intercourse Without Consent section s61K
Maximum Penalty 20-years imprisonment
Standard Non-parole Period Not Applicable

 

Is it a Crime to Attempt to Sexually Assault Someone?

The same maximum penalty that applies to the sexual assault offence you unsuccessfully attempted to commit also applies to the offence of attempting to commit the sexual assault offence. This is prescribed in section 344A.

 

How to Prove Rape or Sexual Assault

You will be guilty of having sexual intercourse without consent under section 61I if police can prove each of the following elements beyond reasonable doubt:

  1. You had sexual intercourse with the alleged victim, &
  2. The alleged victim did not consent, &
  3. You knew that the alleged victim didn’t consent.

If the police fail to prove any one of the above 3 elements, the charge will get dismissed. If this can be identified early by your lawyer, your lawyer can negotiate in an attempt to get it dropped early. It’s recommended to get experienced advice on this.

We have already outlined the meaning of ‘sexual intercourse’ and what is NOT considered consent earlier in this article.

The usual and highly controversial issue raised in rape cases in Australia is whether the accused person knew that the alleged victim did not consent (the 3rd element).

To prove that you knew the alleged victim didn’t consent, the prosecution can do this in any one of the following 3 ways outlined in the below table.

Ways to Prove the Accused Knew There Was No Consent
You Knew You knew that the alleged victim did not consent (this is usually hard to prove)
You were Reckless You were reckless as to whether there was consent in any of the following ways:

  1. You realised the possibility that the alleged victim was not consenting, but you continued (shutting a blind eye), or
  2. You didn’t care or didn’t even turn your mind to whether the alleged victim was consenting, but continued in circumstances the risk that he/she was not consenting would have been obvious to someone with your mental capacity if that person’s mind had turned to it.
It wasn’t an Honest, Mistaken Belief You had no reasonable grounds to believe that there was consent. This requires considering whether your belief was objectively reasonable. section 61HK
(2) says that a belief there was consent will not be considered reasonable if you failed to say or do anything to find out whether or not there was consent (within a reasonable time prior to or at the time of the sexual activity).

The requirement for an accused person to have said or done something to ascertain whether or not a person is consenting, at the time or within a reasonable time before sexual activity, in order to hold a reasonable belief there was consent does NOT apply if the accused person had a cognitive impairment or mental health impairment where such impairment was a substantial reason for not saying or doing anything to ascertain consent. If this applies to a person accused of a sexual assault offence, he/she bears the onus of proving this on the balance of probabilities in court.

 

How Does Intoxication from Alcohol Affect a Rape Case?

If you’re accused and charged with rape, the prosecution must prove your state of mind to determine whether you knew the alleged victim consented. To do this, any effects of self-induced intoxication are to be ignored completely.

This means, that the court must disregard and put to one side any thoughts of whether your ability to think or understand what was going on was affected by alcohol or drugs.

 

Defences to Sexual Assault Charges

Sexual Intercourse Without Consent Defences
Mistaken Belief Your state of mind is such that you genuinely, though wrongly, believed the alleged victim was consenting.
Presence of Consent The evidence allows a court to infer from the circumstances that the alleged victim consented.
No sexual intercourse Sexual intercourse did not occur between the parties. See the definition of ‘sexual intercourse’ outlined earlier.
Medical purpose The sexual intercourse occurred in context of legitimate medical purposes.
Duress or Necessity The sexual intercourse occurred in context of duress or necessity.

 

What if the Alleged Victim Didn’t Resist?

If an alleged victim did not physically resist the sexual activity with you, this does not constitute consent if that is the only reason you say there was consent. (s61HE(9) Crimes Act 1900 (NSW)).

If the alleged victim did not resist AND there are other factors consistent with the presence of consent at the time, this may amount to consent under the law.

 

Can Past Sexual History Be Used as Evidence in Court?

The alleged victim’s past sexual experience(s) or reputation is normally not allowed to be used as evidence in court to prove consent or to attack the alleged victim’s credibility as a witness in court.

In some circumstances, the alleged victim’s past sexual reputation or experience can be used as evidence in court under s293 Criminal Procedure Act 1986 (NSW), in any one of the following situations:

  1. Where the accused person and alleged victim were in a relationship existing at the time or recent to the time of the alleged sexual assault; or
  2. Where the accused denies ever having sexual intercourse with the alleged victim; or
  3. Where the sexual experience or activity took place close enough to or at the time of the current alleged sexual assault. This only applies if the sexual experience or activity you wish to you use as evidence will form part of a connected set of circumstances of the alleged sexual assault.

 

Review of Current Sexual Assault Consent Laws NSW

Early 2018, the NSW Attorney General Mark Speakman ordered a review into the consent laws following a Four Corners investigation into the sexual assault case involving Mr. Luke Lazarus, the son of a Kings Cross nightclub boss, who was accused of raping 18-year-old Saxon Mullins in an alleyway behind the Soho nightclub in 2013.

After spending 11-months in prison, he was found ‘not guilty’ by the court of appeal. On appeal, the court found that there was insufficient evidence to exclude ‘a reasonable possibility’ that he had a ‘reasonable belief’ that she was consenting to the anal sexual intercourse.

This was in context where the evidence revealed that she voluntarily followed him into an alleyway in circumstances he was a stranger to her at the time-where she remained silent.

The high-profile acquittal prompted discussions on NSW sexual consent laws, throwing a spotlight on the legal and social ambiguity encompassing the subject of consent.

As the state’s consent laws remain under spotlight, NSW Minister for Prevention of Domestic and Sexual Assault, Pru Goward, has advised that the Government will review current laws around consent in sexual assault trials, and that this is the first priority action of the sexual assault strategy.

 

False Sexual Assault Claims and Accusations

Heavy penalties apply for making false accusations/claims against a person, if the false accusation is made with the intention of causing a criminal investigation, knowing that the person against whom the false accusation is made is actually innocent.

Making false criminal accusations carry up to 7-years imprisonment, prescribed by s314 Crimes Act 1900 (NSW).

False criminal accusations are difficult to prove. For example, the United Kingdom have reported 3,692 sexual assault prosecutions in 2012/2013. Out of this, 2,333 were found guilty.

It’s difficult to see the realistic figures of how often false accusation/reports are made. This is largely because the police sometimes record a case as ‘unfounded’ in circumstances the police can’t obtain credible evidence to be in a position to have it admissible in court.

Such cases have been included as ‘false allegations’. This has the effect of being conflated.

Rape Statistics Australia

 

The below graph depicts the sentencing statistics on a plea of not guilty who were then found guilty.

 

 

The above graph shows 1.8% of cases received a Community Correction Order, representing 1 case out of the 56 reported. 98.2% (55 cases) received Full time jail who were found guilty after pleading not guilty to a charge of sexual intercourse without consent under s61I between 24 September 2018 to 30 June 2020 in the NSW high courts.. The Blue represents the percentage, while the green represents number of cases.

 

The below graph depicts the sentencing statistics on a plea of guilty.

The above graph shows 7.2% (5 cases out of 69 reported cases) received a Community Correction Order. 92.8% (64 cases) received a Full time jail who pleaded guilty to a charge of sexual intercourse without consent under s61I between 24 September 2018 to 30 June 2020 in the NSW high courts. The blue represents the percentage, while the green represents the number of cases.

Sexual harassment

What is sexual harassment? Sexual harassment can take many forms of unwelcomes sexual activity or sexual abuse against a person where a reasonable person would expect the person to feel offended, humiliated or intimidated.

Sexual harassment, sexual abuse or sexual violence is illegal between employees, employers, organisations, companies, students or any other members of same.

Examples of sexual harassment include making unwelcomed sexual advances, or requests of sexual favours. It can include sending unwelcomed nude or sexual images.

Generally, organisation or company is not liable for their employees or staff members sexual harassment behaviour. However, it can be it the company fails to take reasonable steps at minimising or eliminating the risk of sexual harassment in the workplace. Sexual harassment is prohibited under the sex discrimination Act 1984 (Cth) and also by the Anti-discrimination Act 1977 (NSW).

The penalties for sexual harassment can result in monetary civil damages that an individual may claim.

 

What is ‘Reasonable Steps’?

Reasonable steps to minimise or prevent the risks of sexual harassment may include implementing policies and procedures to stop it in the workplace. Employers should here have a “lively and real interest” in disciplining it according to a sexual harassment case of Richardson v Oracle Corporation Australia Pty Ltd [2014].

Employees and organisations should also be aware of these types of illegal conduct in the workplace by educating it to all staff members in context of the federal and state laws governing it.

Indecent Assault & Sexual Touching

Indecent assault has been replaced with the new sexual touching offence in NSW.

What is indecent assault? The old indecent assault was once defined as any conduct that right-minded people would regard as against community standards of decency, and as conduct that offends against currently accepted standards of decency. A sexual intention or sexual motive is not required for the act to be indecent. But the touch or indecent act was required to have a ‘sexual connotation’.

 

What is Sexual Touching?

The offence of sexual touching under s61KC is any conduct that involves touching another person in circumstances that the touching is considered sexual according to the reasonable person.

 

Penalties for Sexual Touching

Sexual Touching Penalties 61KC
Maximum Penalty in District Court 5-years imprisonment
Maximum Penalty in Local Court 2-years imprisonment or $5,500 fine, or both
Standard Non-parole Period Not applicable
Aggravated Sexual Touching Penalties 61KD
Maximum Penalty in District Court 7-years imprisonment
Maximum Penalty in Local Court 2-years imprisonment or $11,000 fine, or both
Standard Non-parole Period 5-years

 

How to Prove Sexual Touching

How to Prove Sexual Touching
1. Touching You had touched the alleged victim, or you encouraged someone else to.
2. It was sexual According to the court, a ‘reasonable person’ considers the touching as ‘sexual’. Factors considered here include, body part touched, body part used to make contact, genital or anal area, breasts, whether it was for sexual gratification or arousal, other circumstances of the touching.
3. There was no consent The alleged victim did not consent.
4. You knew there was no consent You were aware that the alleged victim did not consent to the sexual touching at the time.

If the prosecution have insufficient evidence to prove even one of the above elements beyond reasonable doubt in court, the court must dismiss the charge upon a ‘not guilty’ verdict.

Ways the prosecution may prove that you knew that the alleged victim was not consenting has been outlined earlier in this article.

 

Defences to Sexual Touching Charges

Sexual Touching Defences
Honest but Mistaken Belief there was Consent Your state of mind was such that you genuinely, though wrongly, believed the alleged victim consented. Your belief is required to be based upon reasonable grounds.
Presence of Consent The evidence allows a court to infer from the circumstances that the alleged victim consented.
No Touching Occurred No physical touching occurred.
Medical Purpose The touching occurred in context of legitimate medical or hygienic purposes.
Accidental Touch The touch was accidental or due to the ordinary exigencies of everyday life i.e. in a packed train or bus where it is unavoidable and unintentional.
Involuntary Touch Due to an unintentional movement by you due to medical condition or reflex action. i.e. sleepwalking, epilepsy, or post-traumatic loss of control from head injury.
Touching was not ‘Sexual’ The alleged touching is not considered ‘sexual’ according to the reasonable person.
Presence of Consent The alleged victim consented at the time. This can be inferred from the circumstances.
Duress or Necessity The sexual occurred in context of duress or necessity.
Weak Prosecution Evidence If the police evidence is weak and are unable to prove any one or more of the crucial elements of this offence, the court must dismiss the charge.

If any of the above defences apply, the charge will be dismissed early by negotiating with the prosecution or by the Judge at the conclusion of a defended hearing in court.

 

Aggravated Indecent Assault

The old offence of aggravated indecent assault has been replaced with the new aggravated sexual touching offence in NSW. The aggravated indecent assault offence carried the same maximum penalties as the new aggravated sexual touching offence with up to 7-years in jail with a 5-year standard non-parole period.

Sexual Act Offences

Committing a sexual act towards a person without consent is a criminal offence in NSW. Below we outline the penalties and defences relating to this charge, and what the police are required to prove in court in order to successfully prosecute a person charged with this offence. Sexual act is the new offence that has replaced the old offence of an act of indecency.

 

What is a Sexual Act?

A sexual act is any act a person commits where a reasonable person would consider ‘sexual’. In determining whether it is ‘sexual’, the court will consider the area of body involved, whether it was for sexual arousal or gratification, or other circumstances that makes it sexual, according to s61HC.

 

Penalties for Sexual Act Offences

Sexual Act Penalties 61KE
Maximum Penalty in Local Court 18-months imprisonment
Standard Non-parole Period Not applicable
Aggravated Sexual Act Penalties 61KE
Maximum Penalty in Local Court 2-years imprisonment or $5,500 fine, or both
Maximum Penalty in District Court 3-years imprisonment
Standard Non-parole Period Not applicable

A sexual act becomes ‘aggravated’ carrying heavier penalties if the sexual act offence occurs either in company of another person, the victim is under the offenders authority, has a serious physical disability or cognitive impairment.

 

How to Prove Sexual Act

How to Prove Sexual Act Offences
1. Intentional Act You intended to commit an act towards or with the alleged victim.
2. It was Sexual A ‘reasonable person’ would regard the act as ‘sexual’.
3. No Consent The alleged victim did not consent to this.
4. Your Knowledge of Consent You were aware that the alleged victim did not consent.

If the prosecution fail to prove any one of the above 4 essential elements of this charge, the charge will get dismissed either in court, or earlier if your lawyers can negotiate with the police.

Ways the prosecution may prove that you knew that the alleged victim was not consenting has been outlined earlier in this article.

 

Defences to Sexual Touching Charges

Sexual Act Defences
Honest but Mistaken Belief there was Consent You held an genuine but mistaken belief that the alleged victim consented.
Consent There’s sufficient evidence to allow a court to make a reasonable inference that there was consent by the alleged victim.
No act Occurred No such act occurred.
Medical Purpose The Act occurred in context of legitimate medical or hygienic purposes.
Accidental Act The act was accidental or because of ordinary exigencies of everyday life.
Involuntary Act The alleged act was unintentional and involuntary due to medical reasons. i.e. reflex action, sleepwalking, epilepsy, or post-traumatic loss of control from a head injury.
It was not ‘Sexual’ The Act occurred in context of legitimate medical or hygienic purposes.
Consent The alleged victim consented at the time.
Duress or Necessity The sexual act occurred in context of duress or necessity.

If any one of the above defences apply, the sexual act charge will be dismissed either in court by the Judge or earlier through police negotiations.

Sexual Servitude Offences

What is sexual servitude? Sexual servitude is when a person provides sexual services and due to threats or the use of force isn’t free to stop providing those services or isn’t free to leave the place or area where he/she provides those services.

Threats can includes threats to cause a person’s deportation, or the threat of force.

 

Penalties for Sexual Servitude

Sexual Servitude Penalties s80D
Maximum Penalty in District Court 15-years imprisonment
Standard Non-parole Period Not applicable
Aggravated Sexual Servitude Penalties
Maximum Penalty in District Court 20-years imprisonment
Standard Non-parole Period Not applicable
Conduct of Business Involving Sexual Servitude s80E
Maximum Penalty in District Court 15-years imprisonment
Standard Non-parole Period Not applicable
Aggravated Offence of Conducting Business Involving Sexual Servitude
Maximum Penalty in District Court 19-years imprisonment
Standard Non-parole Period Not applicable

Circumstances of aggravation here is when the offence is committed where the alleged victim is aged under 18-years or has a cognitive impairment.

 

How to Prove Sexual Servitude

How to Prove Sexual Servitude
1. Cause You caused another person to enter into or remain in sexual servitude.
2. Intention or reckless You intended to cause or were reckless as to causing that sexual servitude.

If police fail to prove any one of the above essential ingredients of this offence beyond reasonable doubt, the charge will be dismissed or possibly dropped early if negotiated early enough.

 

Defences to Sexual Servitude Charges

Sexual Servitude Defences
Consent There’s sufficient evidence to allow a court to make a reasonable inference that there was consent by the alleged victim.
No act Occurred No such conduct occurred.
No ‘Sexual Service’ or no Threat There is no sexual service or threat made
Consent The alleged victim consented.
Duress or Necessity The offence occurred in the context of duress or necessity.

If any one of the above defences apply, this charge will get dismissed in court, unless it is withdrawn by the prosecution earlier through negotiations.

Voyeurism Offences

What is voyeurism? Voyeurism is the crime of watching a person engage in a ‘private act’ for your sexual gratification without consent, in circumstances you know there is no consent provided by that person.

 

What is a ‘Private Act’?

The legal definition of a ‘private act’ here includes being undressed, using a toilet, bathing, showering or engaging in a sexual act of a kind not ordinarily done in public or any other similar activity if the circumstances are such that the person would ordinarily expect privacy.

 

Penalties for Voyeurism Offences

Voyeurism Penalties s91J
Maximum Penalty in Local Court 2-year imprisonment or $11,000, or both
Maximum Penalty in District Court Same as above
Standard Non-parole Period Not applicable
Aggravated Voyeurism Penalties
Maximum Penalty in Local Court 2-years imprisonment or $11,000, or both
Maximum Penalty in District Court 5-years imprisonment
Standard Non-parole Period Not applicable

This offence will be ‘aggravated’ if it occurs in circumstances the victim was a child under the age of 16 or if the offender constructed or adapted the fabric of a building for purposes of facilitating the offence.

The same penalties apply if a person unsuccessfully attempts to commit these offences.

 

How to Prove Voyeurism Offences

How to Prove Voyeurism
1. Observing a person You observed a person.
2. Engaged in ‘private act’ The person you observed was engaged in a private act.
3. Sexual arousal/gratificatio You did this for sexual gratification or arousal.
4. No Consent The person observed did not consent to being observed for that purpose.
5. Your knowledge as to consent You were aware that that person did not consent to being observed for that purpose.

The charge will be dismissed in court or withdrawn earlier through negotiations if the police are unable to prove any one of the above 5 essential elements of this charge beyond reasonable doubt.

 

Defences to Voyeurism Charges

Voyeurism Defences
Consent The alleged victim consented to being observed for purposes of sexual gratification or arousal. This can be inferred from the evidence.
Mistaken Identify Police are unbale to establish beyond reasonable doubt that the perpetrator was you.
No sexual gratification or arousal There was no sexual gratification or arousal motive.
No ‘private act’ The alleged victim was no engaged according to law in a ‘private act’.
Mistaken belief as to consent You genuinely but mistakenly believed the alleged victim consented, provided it was held on reasonable grounds.
Duress or Necessity You engaged in the conduct under duress or necessity.

If any one of the above defences apply, the charge will be dismissed by the Judge in court or the police may drop the charges early through negotiations.

Filming a Person | Up-skirting Offences

What is filming a person engaged in a private act? It is a crime to film a person engaged in a ‘private act’ without that person’s consent in certain circumstances, under s91K.

A ‘private act’ includes filming a person in an undressed state, a person using a toilet, showering, engaging in a sexual act not normally done in public or bathing where the filmed person would in the circumstances ordinarily expect privacy.

What is filming a person’s private parts? It is also a crime to film a person’s private parts (also known as up-skirting) in circumstances a reasonable person would reasonably expect that person’s private parts could not be filmed without consent, under section 91L.

‘Private parts’ means a person’s genital or anal area with or without underwear. It also includes the breasts of a female or transgender or intersex person identifying as a female, regardless of whether or not the breasts are sexually developed.

 

Penalties for Filming a Person’s Private Parts or Engaged in a Private Act

Filming a Person in a Private Act s91K
Maximum Penalty in Local Court 2-year imprisonment or $11,000, or both
Aggravated Filming a Person in a Private Act
Maximum Penalty in Local Court 2-years imprisonment or $11,000, or both
Maximum Penalty in District Court 5-years imprisonment
Filming a Person’s Private Parts s91L
Maximum Penalty in Local Court 2-years imprisonment or $11,000, or both
Aggravated Filming a Person’s Private Parts
Maximum Penalty in Local Court 2-years imprisonment or $11,000, or both
Maximum Penalty in District Court 5-years imprisonment

The non-aggravated charges of filming a person in a private act or private parts are summary offences. This means that they can only be dealt with in the local court at first instance, not the District Court.

For any summary offence, police cannot commence proceedings against you if 6-months from the date of the alleged offence has expired.

The aggravated versions of these charges are not summary offences, which mean that they may be dealt with either in a Local or District Court. The main difference between the local court district court is that the District Court has the power to impose a heavier maximum penalty than the Local Court can.

These offences will be considered ‘aggravated’ if the person who was filmed was under the age of 16 or if the offender had constructed or adapted the fabric of any building in order to commit the offence.

The offence of installing a device to facilitate observation or filming of the above offences is a separate summary offence carrying up to 2-years jail and/or $11,000 fine (s91M).

 

How to Prove a Filming Offence

How to Prove an Offence of Filming a Person in a Private Act
1. Filming  You filmed another person
2. ‘Private act’ The other person being filmed was engaged in a ‘private act’
3. Sexual motive You did this for sexual arousal or gratification either for yourself or for someone else.
4. There was no consent The person being filmed did not consent to being filmed for that purpose.
5. You knew there was no consent You knew that the person being filmed did not consent to being filmed for that purpose.
How to Prove an Offence of Filming a Person’s Private Parts
1. Filming  You filmed another person
2. ‘Private parts’ ‘Private parts’
3. Sexual motive You did this for sexual arousal or gratification either for yourself or for someone else
4. Reasonable person test A reasonable person would reasonably expect the person’s private parts could not be filmed.
5. There was no consent The person being filmed did not consent to being filmed for that purpose.
6. You knew there was no consent You knew that the person being filmed did not consent to being filmed for that purpose.

The charge will be dismissed in court or withdrawn earlier through negotiations if any one of the above essential elements of the charge are unable to be proven beyond reasonable doubt.

 

Defences to Filming Charges

Filming a Person Defences
Honest but Mistaken Belief there was Consent You honestly but mistakenly thought that the filmed person was consenting.
Consent There is sufficient evidence to prove by way of a reasonable inference that the filmed person consented.
Mistaken identity You have been mistakenly accused as the perpetrator and there is insufficient evidence to prove that the perpetrator was you.
No sexual motive You had no sexual motive to film the alleged victim.
Duress or Necessity The sexual act occurred in context of duress or necessity.

If any one of the above defences apply to your case, the charge will be dismissed in court or withdrawn by police earlier if negotiated on time.

Recording and Distributing Intimate Images | Revenge Porn Offences | Sextortion

Recording and distributing intimate images are offences commonly called revenge porn committed more commonly in the context of domestic relationships. Sextortion is usually committed for purposes of black-mailing someone to gain power.

Recording/Distributing Intimate Images
What is intentionally recording an intimate image? It is a crime to intentionally record an intimate image of another person without that person’s consent, knowing that person didn’t consent (or being reckless as to whether that person consented to the recording), under s91P.
What is distributing an intimate image? It is a crime to intentionally distribute an intimate image of another person without that person’s consent, knowing that person didn’t consent to the distribution (or being reckless to this), under s91Q.
Threaten to record or distribute an intimate image offence It’s also a crime to threaten to record or distribute an intimate image of another person without that person’s consent, intending to cause that person to fear that the threat will be carried out, under s91R.
Definitions
‘Distribute’ ‘Distribute’ includes send, supply, transmit, communicate, make available for viewing or access to others (whether in person or by electronic, digital or other means).
‘Intimate Image’ An ‘intimate image’ includes images of a person’s private parts, or of a person engaged in a private act, in circumstance a reasonable person would reasonably expect to be afforded privacy. It also includes an image that’s been altered to appear to show the same.
‘Private Parts’ ‘Private parts’ include the genital or anal area (whether bare or covered by underwear). It also includes a female’s breasts.

The police must first seek the approval of the DPP to prosecute if the accused person is under the age of 16-years.

Just because a person voluntarily sends you his/her intimate image, does not automatically mean that you’re given consent distribute it.

 

Can the Court Order the Offender to Remove an Intimate Image?

If found guilty of these offences, the court can order you to take reasonable steps to remove, retract, recover, delete or destroy the intimate image recorded or distributed. Failure to comply carries 2-years jail and/or $5,500 fine, under s91S.

 

Penalties for Recording or Distributing Intimate Image

Record or Distribute Intimate Image s91P/s91Q
Maximum Penalty in Local Court 2-year jail or $11,000, or both
Maximum Penalty in District Court 3-years jail or $11,000, or both
Threaten to Record or Distribute Intimate Image s91R
Maximum Penalty in Local Court 2-years jail or $11,000, or both
Maximum Penalty in District Court 3-years jail or $11,000, or both

A person can be guilty of these offences even if the alleged victim did not actually fear that the threat would be carried out. Further, a person can still be guilty of threatening to do this even if the image doesn’t actually exist.

 

How to Prove a Record Intimate Image Offence

How to Prove an Offence of Recording an Intimate Image
1. Intentionally record person You ‘intentionally’ recorded a person.
2. Intimate image The recording was an ‘intimate image’ of that person.
3. Without Consent This was done without the consent of that person.
4. Your knowledge You knew that that person didn’t consent to the recording, or you realised the possibility that person didn’t consent to the recording.
How to Prove an Offence of Distributing an Intimate Image
1. Intentionally Distributed an image You ‘intentionally’ distributed an image of a person.
2. Intimate image The image distributed was an ‘intimate image’ of that person.
3. Without Consent This was done without the consent of that person.
4. Your knowledge You knew that that person didn’t consent to its distribution, or you realised the possibility that person didn’t consent to it.
How to Prove an Offence of Threaten to Record or Distribute Intimate Image
1. Threat to record or distribute You threatened to either record or distribute an image of a person
2. Intimate image The image is an ‘intimate image’ of that person.
3. Without Consent That person did not consent to this.
4. Your knowledge You knew that person didn’t consent, or you realised the possibility that person didn’t consent.

These charges will be dismissed in court or withdrawn early in the case, through negotiations, if any one of the above essential elements 1-4 are not proven beyond reasonable doubt by the police evidence.

 

Defences to Recording or Distributing Intimate Image Charges

Recording or Distributing Intimate Images Defences
Honest but Mistaken Belief there was Consent You honestly but mistakenly thought that the filmed person was consenting.
Consent There is sufficient evidence to prove by way of a reasonable inference that the other person consented.
Medical Grounds It was done for genuine medical or scientific reason(s)
Law enforcement Purpose It was done by a law enforcement officer for genuine law enforcement purposes.
Legal Proceedings Purposes It was done because it was required by a court or otherwise reasonably necessary to be done for purposes of legal proceedings.
Acceptable Conduct A reasonable person would consider it as acceptable having regard to the nature/content of the image; circumstances it was recorded/distributed; age; intellectual capacity; vulnerability or other circumstances of the person depicted; the degree to which the accused person’s actions affect the privacy of the person depicted in the image; and the relationship between the accused person and person depicted in the image.
Mistaken identity You have been mistakenly accused as the perpetrator and there is insufficient evidence to prove that the perpetrator was you.
Duress or Necessity It occurred in context of duress or necessity.

If any one of the above defences exist in a case, the charge will be either withdrawn early via negotiations, or dismissed in court.

Using Carriage Service to Send Nudes or Sexting Offences

Using a carriages service to offend, harass or menace by sending or making available nudes or sexting without consent are another type of domestic violence under the commonwealth law.

Using Carriage Service to Send Nudes or Sexting Maximum Penalty
What is using a carriage service to send private sexual material? It is a crime to use a carriage service i.e. internet, Wi-Fi, in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive involving private sexual material, under s474.17A Criminal Code Act 1995 (Cth). 5-years imprisonment
Definitions
‘Carriage service’ ‘Carriage service’ means services that communicate by ‘guided or unguided electromagnetic energy’. i.e. phone call, text, email, social media (s7 Telecommunications Act 1997 (Cth)).
‘Offensive, harassing, menacing’ ‘Offensive is conduct calculated or likely to arouse significant anger, resentment, outrage, disgust, hatred in the mind of a reasonable person in all the circumstances. The reasonable person is someone who’s no thin-skinned, is reasonably tolerant and understanding, and reasonably contemporary in their reactions. It is not offensive if it merely hurts or wounds the feelings of a person (Monis v The Queen [2013] HCA 4).

 

Defences to Using a Carriage Service Charges

Defences
Mistake At the time you didn’t know the person had a cognitive impairment
Married or De facto At the time you were married or a de facto of the person.
Medical Grounds It was carried out for a legitimate medical or hygienic purpose.
Mistaken identity You have been mistakenly identified as the offender.
Duress or Necessity It occurred in circumstances of a duress or necessity.

Sexual Offences- Cognitive Impaired People

Sexual Intercourse with Cognitive Impaired Person s66F Maximum Penalty
Sexual Intercourse-Cognitive Impairment It is a crime to have sexual intercourse either with or without consent with a person who has a cognitive impairment, if you’re also responsible for the care of that person, under s66F(2). 10-years imprisonment
Sexual Intercourse-Taking Advantage of Impairment It is a crime have sexual intercourse either with or without consent with a person who has a cognitive impairment, with the intention of taking advantage of that person’s impairment, under s66F(3). 8-years Imprisonment
Definitions
‘Cognitive impairment’ ‘Cognitive impairment’ is defined in s61HD, and includes an intellectual disability, developmental disorder (i.e. autistic spectrum disorder), neurological disorder, dementia, severe mental illness or brain injury that results in the person requiring supervision or social habilitation in connection with daily life activities.
‘Person responsible for care’ ‘Person responsible for care’ of a person who has a cognitive impairment is a person who provides care to that person either at a facility for that purpose or at the home of that person in the course of a program under which any such facility or other government or community organisation provides care to person with a cognitive impairment.

 

Defences

Defences
Mistaken ID You have been mistakenly identified as the perpetrator. This could include the situation where someone else used your device to commit this offence i.e. hacked.
Under-age You were aged under 10-years old at the time.
Involuntary Conduct Your actions were not voluntary i.e. due to medical condition
Mental Illness Due to a mental condition, you were not aware of the rightness or wrongness of your actions, or you were prohibited from appreciating the nature and quality of your conduct.
Duress or Necessity The offence occurred in context of a duress or necessity.

Incest

Is Incest Illegal in Australia? Incest is a crime. Any person who has sexual intercourse with a ‘close family member’ who is of or above the age of 16 will face heavy penalties in NSW, under s78A. It is also a crime to attempt to do this.

Consent here is not a defence. Prosecution for Incest cannot commence unless the Attorney-General approves.

Incest Offences Maximum Penalty
What is Incest? It is a crime to have sexual intercourse with a close family member who is at least 16-years-of-age at the time. 8-years imprisonment
Definitions
‘Close family member’ ‘Close family member’ includes a parent, son, sibling, daughter, half-brother or sister, grandchild, grandparent being such a family member from birth.

 

Defences to Incest Charges

Defences to an Incest Charge
S78A(1A) Defence It is not an offence here if you’re aged between 16 and under 18 at the time, in circumstances the other person is your parent or grandparent.
Lack of Knowledge At the time, you didn’t know that the other person was related to you.
Mistaken identity You have been mistakenly identified and accused.
Duress or Necessity You committed the offence under duress or necessity.

Sexual offences in NSW carry heavy sentences. Our articles help shed some light on these laws.

FAQ

An existing working with children check clearance (WWCCC) will be cancelled if the Children’s Guardian becomes aware that you are either a ‘disqualified person’ or if the Children’s Guardian is satisfied that you pose a risk to the safety of children (s23 Child Protection (Working with Children) Act 2012 (NSW)).

If you do not have a WWCCC, but need one, then you will not be able to get one if you are a ‘disqualified person’, or if you’re considered as a someone who poses a risk to the safety of children.

You will be a ‘disqualified person’ if you’ve been convicted or have criminal proceedings pending concerning the following charges: voyeurism, filming a person engaged in private act or private parts, bestiality, incest, sexual act, sexual touching, and sexual assault. It also includes any offence involving a child.

To be allowed to work in a job that involves direct contact with children (under the age of 18), being contact as the usual part of the work (and something that is more than incidental to the work), or a child-related role, you must have a working with children check clearance (WWCCC) from the Children’s Guardian. Breach of this, carries up to 2-years imprisonment and/or $11,000 fine.

If the sexual assault conviction was not a child related offence, then you will not be considered a registrable person that would normally cause you to be placed on the child protection register. However, even if you’re not a registrable person, where the conviction was not a registrable offence, the court can still make a child protection registration order against you if under Part 2A Child Protection (Offenders Registration) Act 2000 (NSW), if:

  • The court is satisfied that you pose a risk to the lives or sexual safety of children; and
  • The court imposes a sentence against you (unless it is a s10 non-conviction); and
  • If the prosecution has made the application for this.

The court may make this order during the criminal proceedings, or after the criminal proceedings have concluded.

If the criminal proceedings have concluded, the court can only make a child protection registration order within 60-days after a sentence has been imposed for a non-registrable offence.

A sex offence conviction can result in you being registered as a high risk sex offender or high risk violent offender under the Crimes (High Risk Offenders) Act. This means, that where you’re sentenced to prison for the offence, an order can be made by the court that you are to be further supervised in the community upon release from prison. This can apply where the court is satisfied that there is a high probability that you pose an unacceptable risk of committing another serious offence if not kept under supervision.

You’re not required to disclose your criminal record/conviction if the “crime-free period” for your conviction has expired (i.e. conviction is “spent”), under s12 Criminal Records Act 1991 (NSW). This also then means, any questions about your criminal history is taken to NOT INCLUDE “spent” convictions. If your conviction has become “spent” you can therefore answer “no” to a question on, “do you have a criminal record or conviction?”.

The “crime-free period” is the period of 10-years from your last conviction, during which time, you have not been convicted of any offence which carries an imprisonment penalty.

However, under the law in NSW, the following convictions CANNOT become “spent”:

  • Convictions for which a prison sentence of over 6-months has been imposed;
  • Convictions for sexual offences, including the offences outlined above in this article.

NSW Police can assist in a number of ways for victims of sexual assault, including the following:

  1. Contact the nearest police station to make a formal complaint. Police may then formally commence investigations. Police will request either a written and/or video statement. Police will also arrange any necessary medical and counselling support; or
  2. A sexual assault victim can fill and complete a sexual assault reporting options questionnaire. This allows police to investigate, which can lead to an arrest and charge. This will not result in a formal investigation, but it helps police to be proactive. It can also help police find the perpetrator. If police believe that the perpetrator has been found, then the victim may be discretely contacted to be provided an opportunity to take it further; or
  3. A sexual assault victim can approach a support service. NSW Rape Crisis Centre contact is 1800 424 017.

  1. You had sexual intercourse with an alleged victim, and
  2. This occurred without the alleged victim’s consent, and
  3. You knew that the alleged victim did not consent, and
  4. The offence occurred in ‘circumstances of aggravation’ in any of the following circumstances:
    • The alleged victim was under your authority i.e. carer or patient
    • The alleged victim had a physical disability or cognatic impairment
    • The alleged victim’s liberty was deprived
    • The sexual assault occurred in the company of one or more person(s)
    • The alleged victim was a child under the age of 16
    • At around the time of the offence you threatened to inflict grievous bodily harm or wounding to the alleged victim or to anyone nearby
    • At around the time of the offence you threatened to inflict actual bodily harm to the alleged victim or to anyone nearby by means of an offensive weapon or instrument
    • You intentionally or recklessly inflicted actual bodily harm to the alleged victim or to anyone nearby at around the time of the offence
    • You committed a break and enter into a dwelling-house or building with the intention to commit sexual assault or with the intent to commit any other offence carrying at least 5-years imprisonment to it.

  1. You had sexual intercourse with an alleged victim, and
  2. The sexual intercourse occurred without that person’s consent, and
  3. You knew that that person did not consent, and
  4. It occurred in ‘circumstances of aggravation’, and
  5. You were in company of one or more people when the offence took place
Published on 20/07/2021

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AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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