Sexual Intercourse without consent

In the context of this offence, sexual intercourse is comprehensively defined as follows:

1. The penetration of an individual’s genitalia or anus by another person’s body part.
2. The penetration of an individual’s genitalia or anus by another person using an object.
3. The act of inserting a penis into another person’s mouth.
4. The act of fellatio.
5. The act of cunnilingus.
6. It is crucial to note that these definitions provide a clear and precise understanding of what constitutes sexual intercourse for the purposes of the relevant offence under discussion

In instances of sexual intercourse without consent, an individual may be deemed guilty based on either knowing or reckless conduct.

The offence is categorised as “knowing” when the accused possesses complete awareness that the victim does not provide consent for the sexual activity in question.

Conversely, the offence is classified as “reckless” when the accused is cognisant that the victim may not be providing consent for the sexual activity or if the accused neglects to contemplate whether the victim is giving consent. In such cases, the individual demonstrates a disregard for the presence or absence of consent, thereby being liable for the offence.

The offence of sexual assault entails a maximum penalty of imprisonment of 14 years on indictment.

If the sexual assault occurs in circumstances of aggravation, the maximum penalty is a term of 20 years imprisonment.

If the sexual assault occurs in company, the maximum penalty is life imprisonment.

Sexual intercourse without consent is categorised as an indictable offence, warranting its legal proceedings to be conducted in the NSW Supreme Court. As with all criminal matters, the initial stages of the proceedings commence in the Magistrates Court, progressing through various procedural steps before ultimately being transferred to the Supreme Court for conclusion, which may involve a plea hearing or a trial by jury. This process ensures a comprehensive and rigorous examination of the case to reach a just resolution in accordance with the law.

In the event that you are facing charges of sexual intercourse without consent and are considering pleading guilty, it is of utmost importance to seek thorough legal counsel. KPT Defence Lawyers can offer specialised guidance concerning the merits of the case against you, the potential penalty range in light of your individual circumstances, and whether a viable defence exists. They will engage in discussions with you regarding any pertinent information that could support your plea in mitigation, including evidence of measures taken to address the offence. Their expertise and tailored advice will prove invaluable in navigating the legal complexities and pursuing the best possible outcome for your case.

If you find yourself facing a charge of sexual intercourse without consent and have chosen to contest the charge, KPT Defence Lawyers will provide you with expert advice and support to prepare a robust defence. Sexual assault cases typically entail a lengthy court process, spanning several months, until they reach trial and are ultimately decided by a jury. Effective management and handling of each procedural stage are crucial to ensuring a well-prepared defence. The knowledgeable guidance and assistance from KPT Defence Lawyers will prove instrumental in navigating the complexities of the legal proceedings and enhancing your chances of a favorable outcome.

The primary legal defence for sexual intercourse without consent revolves around establishing genuine and voluntary consent from the alleged victim for the sexual activity. Consent serves as an absolute defence in any sexual offence case involving an adult victim, with the exception of incest-related cases.

In addition to the defence of consent, the accused can assert factual defences when facing a charge of sexual
intercourse without consent. These defences may include:

1. Contesting the occurrence of the alleged offence, maintaining that no sexual activity transpired.
2. Denying any involvement as the person responsible for committing the offence.
By invoking these factual defences, the accused seeks to challenge the veracity of the allegations and present a compelling case in their defence during the legal proceedings. The successful establishment of genuine consent or a factual defence can significantly influence the outcome of the case.

The legal age of consent in NSW is 16 years old, rendering any sexual activity with a person below this age unlawful. However, there exists one exception to this rule: a person aged between 14 and 15 years can legally consent to sex with an individual who is not more than 2 years older than them, provided the older person is not in a position of authority over the minor.

In certain circumstances, a person may be considered unable to provide consent. Several common examples of such situations include:

1. Inability to give consent due to age, mental, or physical impairment.
2. Being in a state of sleep or unconsciousness.
3. Being significantly influenced by drugs or alcohol.
4. Being subjected to threats or coercion.
5. Being restrained against one’s will.
6. Being manipulated into giving consent.

According to the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021, consent is defined as a voluntary and free agreement “at the time of the act.”

The phrase “at the time of the act” carries significant importance. It emphasises that consent provided hours earlier is not sufficient, and consent should not be presumed based on past sexual encounters.

The primary purpose of this new law is to establish the notion that consent can be withdrawn, and agreeing to one sexual act does not imply consent to any other sexual acts.

The new law explicitly states that sexual consent necessitates ongoing and mutual communication, and it cannot be assumed. However, the government clarified that it does not alter anything for individuals who are already engaging in consensual sexual activity.

Under the new law, a person is not considered to have consented to a sexual act unless they expressly or demonstrably express consent. In other words, consent cannot be inferred merely from the absence of a refusal or resistance to an advance.

The law further specifies that individuals cannot provide consent if they are heavily under the influence of drugs or alcohol, unconscious or asleep, or manipulated or threatened into giving consent.

Under the newly enacted laws, individuals charged with sexual assault are now obligated to demonstrate that they held a reasonable belief that consent was given and that they actively took steps to verify the presence of consent.

The ramifications of these novel consent laws on the handling of sex offences within the justice system are yet to be fully comprehended.

One of the challenges lies in ascertaining the sequence of events between two individuals when they present conflicting accounts, particularly if consent is expected to be sought for each specific sexual act.

For instance, if one person appears to have given consent for one act, the court may encounter the intricate task of determining whether the other person is culpable because they did not explicitly seek consent for another form of sexual activity.

The consequences of engaging in sexual activity without consent are severe, as stipulated under the Crimes Act 1900, with a maximum sentence of up to 14 years in prison.

In New South Wales (NSW), a recent law has been introduced that mandates individuals to explicitly obtain and give consent before engaging in any sexual activity. These affirmative consent laws were enacted on 1 June 2022, following their approval by the NSW parliament in November 2021.