Sexual act without consent

The offence of sexual act is governed by Section 61KE of the Crimes Act 1900 (NSW).

According to this section, a person is deemed guilty of a sexual act, if without the complainant’s consent and being aware that the complainant does not consent, they intentionally:

1. Engage in a sexual act with or towards the complainant.
2. Incite the complainant to engage in a sexual act with or towards the defendant.
3. Incite a third person to engage in a sexual act with or towards the complainant.
4. Incite the complainant to engage in a sexual act with or towards a third person.

The definition of a “sexual act” is provided in Section 61HC and encompasses any act, other than sexual touching, which a reasonable person would consider to be sexual under the given circumstances.

The determination of whether an act is sexual takes into account factors such as the involvement of the genital area, anal area, or breasts, the defendant’s intentions for sexual arousal or gratification, and any other relevant circumstances that render the act sexual.

Importantly, a genuine medical or hygienic purpose can exempt an act from being considered sexual under the law.

It is crucial to recognise that a sexual act does not solely require physical touching, and actions like masturbating in front of the complainant, inciting the complainant to masturbate, engaging in a simulated sexual act, or inciting the complainant to perform a simulated sexual act could also be constituted as a sexual act under the law.

The penalties for committing a sexual act offence vary depending on the circumstances and the age of the victim. As per the relevant sections of the legislation: 

1. For sexual acts committed against a person, the maximum penalty is 18 months of imprisonment under section 61KE. 

2. If the offence involves a child between the ages of 10 and 16, the maximum penalty increases to two years, as stated in section 66DD.

3. In cases where the victim is a child under the age of 10, the maximum penalty is 7 years, as outlined in Section 66DC.

It is crucial to understand that the court has the discretion to impose penalties within the specified ranges based on the severity of the offence and other relevant factors. It is important to note that an intensive correction order is not available if the person recorded without consent was under the age of 16 years.

Please be advised that this information is general and not intended as legal advice. For personalised guidance tailored to your specific case, we strongly recommend consulting with our experienced lawyers. 

To be convicted for a sexual act offence, the prosecution must establish the following elements of the offence beyond a reasonable doubt:

1. The defendant engaged in a sexual act towards the complainant, incited the complainant to carry out a sexual act, or incited a third person to do so.

2. The complainant did not provide consent.

3. The defendant was aware that consent was not given, or the defendant acted recklessly regarding whether consent was given.

If the prosecution fails to prove each of these elements beyond a reasonable doubt, you will be deemed not guilty for this offence.

In the event that the prosecution’s evidence against you is compelling, you may consider pleading guilty to the offence.

In such circumstances, your lawyer can negotiate with the police to reduce the charges, or propose an amended facts sheet to reduce the severity of the offence.

Your lawyer will assist in compiling relevant materials to present to the court during your sentencing, including an apology letter, character references, and documents from counselors or healthcare professionals you have consulted.

By effectively presenting these materials and making persuasive verbal submissions in court, our primary objective is to secure the most lenient penalty possible.

An early guilty plea may result in a sentence discount of up to 25%, resulting in a less severe type of penalty.

Additionally, opting for an early guilty plea is more cost-effective and saves time and stress associated with a defended hearing of trial.

Please be advised that this information is general and not intended as legal advice. For personalised guidance tailored to your specific case, we strongly recommend consulting with our experienced lawyers.

In addition to proving each element of the offence, the prosecution is required to refute any defences if validly raised. The following defences may be considered:

1. Duress – If you were subject to threats or coercion, compelling you to engage in the act.

2. Necessity – If the act was deemed necessary to prevent imminent danger.

3. Self- Defence – If you acted to protect yourself or another person.

4. Lawful correction of a minor – If the act was lawful and necessary for the correction of a minor.

To be convicted of a sexual act, the prosecution must establish beyond reasonable doubt, the following elements:

1. You engaged in a sexual act with or in the presence of the complainant, or incited someone else to do so.

2. The complainant did not provide consent for the act. 

3. You were aware that the complainant did not consent, or you acted recklessly in regards to their consent. 

Various defences can be used to contest against sexual touching charges, including:

1. The prosecution cannot prove the occurrence of a sexual act. 

2. The prosecution cannot prove the direction or execution of any act towards the complainant.

3. The prosecution cannot prove your involvement in the act, or incitement, be it towards the complainant or another individual.

4. The prosecution cannot prove that you acted intentionally or recklessly.

5. The prosecution cannot prove the existence of a lack of consent.

6. Establishing the act was for a legitimate medical or hygienic purpose.

7. Asserting coercion, threats, self-defence or necessity as factors influencing the act.

If any of these defences succeed, you will be deemed not guilty of the offence.

In December 2018, the offence of “sexual act” replaced the term “act of indecency” in New South Wales.

The new offence aims to more precisely describe unlawful conduct related to non-consensual sexual acts towards others that do not involve physical touching but are of a sexual nature.

The offence of sexual act is considered less severe than sexual touching, though it is still treated seriously by the courts.

If you are facing charges related to a sexual act, please do not hesitate to contact  KPT Defence Lawyers at  02 9267 5555 to arrange a free initial consultation with an experienced criminal defence lawyer. They will thoroughly review the allegations, provide advice on your available options, and guide you on the most appropriate course of action.