Rape and Other Sexual Offences in Sydney

The New South Wales Crimes Act 1900 sets out a number of sexual offences against adults. All of these offences carry terms of imprisonment as the maximum penalty. Unlike sexual offences against children, sexual offences against adults almost always involve non-consensual sexual activity. The exception is incest, which is a criminal offence regardless of whether there was consent by the parties. This article outlines the law around rape and other sexual offences in Sydney and the rest of New South Wales. 

Consent and sexual offences in Sydney

Under section 61HE of the Crimes Act 1900, consent is defined as free and voluntary agreement. The act states that a person’s consent is not valid if they:

• Lack capacity to consent because of their age or because of a cognitive incapacity;
• Are unconscious or asleep;
• Consent because of threats or terror;
• Consent because they are unlawfully detained.

Sexual intercourse and sexual offences

Historically, the law of rape only applied to the penetration of a vagina by a penis. In the last 30 years, all Australian jurisdictions have broadened the definition of rape to cover anal and oral intercourse and penetration by an object or any body part. The law now recognises that all non-consensual sexual penetration is rape and that males can also be the victims of rape.

Sexual assault in Sydney

In Sydney and NSW, under section 61I of the Crimes Act, if a person has sexual intercourse with another person without consent they are guilty of sexual assault. This offence is punishable by a maximum of 14 years imprisonment. It is the offence known as rape or sex without consent in some other jurisdictions.

If sexual assault is committed under aggravated circumstances, the maximum penalty is 20 years imprisonment. Circumstances of aggravation include inflicting or threatening bodily harm, being in company with another person or persons or the victim having a serious physical disability or cognitive impairment at the time of the offence.

Sexual touching

Sexual touching is an offence under Section 61KC. A person commits sexual touching without consent if, knowing that another person does not consent, they:

• sexually touch the person;
• incite the other person to sexually touch the offender;
• incite a third person to touch the victim sexually;
• incite the victim to touch a third person sexually.

The maximum penalty for sexual touching is five years imprisonment.

The offence of sexual touching is aggravated where the victim is under the offender’s authority, where the offender is with one or more other persons or where the victim has a serious physical or cognitive disability.

Sexual act

Another sexual offence that a person can be charged with in NSW is carrying out a sexual act without consent. This is an offence under Section 61KE of the Crimes Act. Unlike, sexual assault and sexual touching, a sexual act does not require physical contact.  

A person commits the offence if they carry out a sexual act with another person without consent. A sexual act can be carried out with or towards the alleged victim or it can be carried out with or towards a third person. The maximum penalty for sexual touching is 18 months imprisonment. 

Assault with intent 

Under section 61K of the Crimes Act, assault with intent to have sexual intercourse is an offence. A person commits an offence under this section if they intentionally or recklessly inflict, or threaten to inflict, actual bodily harm on a person with the intent of having sex with them. The maximum penalty for this is imprisonment for 20 years.

The offence of assault with intent to have sexual intercourse is different from an attempted sexual assault, as sexual intercourse is not actually attempted during the course of the offence. Rather an assault is committed with a view to engaging in a sexual assault thereafter. 

Incest

Incest is an offence in Sydney and NSW under Section 78A of the Crimes Act. Incest occurs when a person has sexual intercourse with a close family member (a parent, child, sibling, grandparent or grandchild). The maximum penalty for incest, when the offender is 16 or older, is eight years imprisonment.

It is a defence to incest if the accused did not know that the other person was a close family member at the time of the alleged offence. However, consent cannot be used as a defence to incest. Incest is the only sexual offence against an adult in New South Wales where the consent of the victim is irrelevant.

If you require legal advice or representation in relation to sexual offences in Sydney or in any other legal matter, please contact Go To Court Lawyers.