Affirmative Consent & Sexual Assault
In recent years, there has been an increase of media attention on sexual assault cases in concurrence with the rise of movements such as ‘Me Too’ and evolving ideas of what truly constitutes consent. In response, the NSW Government enacted legislation in June 2022 aimed at both simplifying and strengthening the laws regarding affirmative consent.
What is Sexual Intercourse?
Sexual intercourse is defined as the penetration of a person’s genitalia to any extent by any part of the body of another person or any object manipulated by another person. This definition extends beyond the typical understanding of what constitutes sexual intercourse and includes cunnilingus and digital penetration.
What is Consent?
Consent is the free and voluntary agreement to engage in sexual activity.
Understanding Consent
The Court may consider the following in determining whether a person engaged in sexual activity freely and voluntarily:
- A person may retract their consent at any time verbally or by action and demeanour.
- The fact that a person does not verbally or physically resist does not mean they have consented to the sexual activity.
- When a person consents to a particular activity, they are not regarded to have consented to any other activity that may ensue.
- When a person has consented on one occasion does not mean they have consented to sexual activity with that person on another occasion.
- It is not the case that consent with one person amounts to consent with another person on the same occasion or on an alternate occasion.
Non-Consensual Situations: Factors That Invalidate Consent
A person is taken to have not consented to sexual activity if any of the following circumstances exist:
- A mistaken belief as to the identity of the alleged offender.
- A mistaken belief that the alleged offender is married to the person.
- A mistaken belief that the sexual activity is for health or hygienic purposes.
- Any other mistaken belief about the nature of the activity induced by fraudulent means.
- If the person consents to the sexual activity while substantially intoxicated by alcohol or any drug.
- If the person consents to the sexual activity because of intimidatory or coercive conduct.
- If the person consents because of the abuse of a position of authority or trust.
- If the person is underage or lacks cognitive capacity.
- If the person is unconscious or asleep.
What is Sexual Assault?
Any 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 a maximum of 14 years with a Standard Non-Parole Period of 7 years imprisonment.
What You Need to Know
Maximum Penalties in Cases of Sexual Assault
The maximum penalty increases to 20 years with a Standard Non-Parole Period of 10 years if the sexual assault occurs in the following circumstances:
- The alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby.
- The alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument.
- The alleged offender threatens to inflict grievous bodily harm or wounding on the alleged victim or any other person who is present or nearby.
- The alleged offender is in the company of another person or persons.
- The alleged victim is under the age of 16 years.
- The alleged victim is under the authority of the alleged offender.
- The alleged victim has a serious physical disability.
- The alleged victim has a cognitive impairment.
- The alleged offender breaks and enters into a house or other building with the intention of committing the offence or any other serious indictable offence.
- The alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.
The alleged offender will be liable for life imprisonment with a Standard Non-Parole Period of 15 years imprisonment if the sexual assault occurs while in company with another person and at the time of the act, the alleged victim receives actual bodily harm, there is a threat to inflict actual bodily harm by use of an offensive weapon or instrument, or the alleged victim is deprived of their liberty.
Aggravated Sexual Assault in Company
The alleged offender will be liable for life imprisonment with a Standard Non-Parole Period of 15 years imprisonment if the sexual assault occurs while in company with another person and at the time of the act, the alleged victim receives actual bodily harm, there is a threat to inflict actual bodily harm by use of an offensive weapon or instrument, or the alleged victim is deprived of their liberty.
What Must Be Proven in Sexual Assault Cases
To be found guilty, the Prosecution must prove the “essential elements” of the offence beyond reasonable doubt. In other words:
- That alleged offender engaged in sexual intercourse with the alleged victim;
- That there was no consent; and
- That alleged offender knew that there was no consent, or was reckless as to whether there was consent.
If there is an alleged circumstance of aggravation, such as the act was committed in company with another person, the Prosecution must also prove that element beyond reasonable doubt.
Beyond reasonable doubt is a very high threshold, and often, cases that appear insurmountable at the outset, can be overcome with effective defence strategy, including consideration of relevant defences available such as similar age or duress. Should you find yourself charged with any form of sexual assault, it is critical you seek the advice of an experienced criminal defence lawyer.
The team at Jackson John Defence Lawyers can guide you through the Court process and assist you mount a defence.
Navigating Sexual Assault Charges: Why Legal Counsel Matters
Beyond reasonable doubt is a very high threshold, and often, cases that appear insurmountable at the outset, can be overcome with effective defence strategy, including consideration of relevant defences available such as similar age or duress.
Should you find yourself charged with any form of sexual assault, it is critical you seek the advice of an experienced criminal defence lawyer.
The team at Jackson John Defence Lawyers can guide you through the Court process and assist you mount a defence.
With the recent changes to affirmative consent laws, understanding your rights and responsibilities in sexual assault cases has never been more critical. If you’re facing charges or need legal advice, our experienced team of lawyers is here to provide clear guidance and strong representation.
Sexual Touching
What is Sexual Touching?
Another commonly charged sexual offence involves the sexual touching of another person. An accused person who, without consent and knowing the alleged victim does not consent, intentionally:
- Sexually touches the alleged victim;
- Incites the alleged victim to sexually touch the alleged offender; or
- Incites the alleged victim to sexually touching a third person, is guilty of an offence and liable to imprisonment for 5 years.
Sexual touching means a person touches another person with any part of the body with anything else or through anything, including anything being worn by the person doing the touching or by the person being touched in circumstances where a reasonable person would consider the touching to be sexual.
What You Need to Know
Enhanced Penalties for Sexual Touching
The penalty is increased to 7 years imprisonment with a Standard Non-Parole Period of 5 years imprisonment if any of the following circumstances exist:
- The alleged offender is in company with someone else;
- The alleged victim is under the authority of the alleged offender; or
- The alleged victim has a serious physical disability or cognitive impairment.
There are many variables that are relevant to a determination about whether a touching is sexual, such as the area touched and the context of the touching, which is why obtaining legal advice in response to charges of this nature is of critical importance.
At Jackson John, we have the necessary expertise to assist in your defence.
Voyeurism & 'Up-Skirting'
What is Voyeurism & Up-Skirting?
Voyeurism or ‘Up-skirting’ refers to the filming of a person’s private parts without consent. Private parts are defined by the Crimes Act 1900 (NSW) to include a person’s genital area or anal area, whether bare or covered by underwear, or the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breast are sexually developed.
Filming means the person cause one or more images (whether static, still or moving) of the other person or the other person’s private parts to be recorded or transmitted for the purpose of enabling the person or a third person to observe those images (whether during the filming or later).
A person who films another person’s private parts without consent, knowing the other person does not consent, with the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification in circumstances in which a reasonable person would expect the person’s private parts could not be filmed is liable for a maximum term of imprisonment of 2 years and/or the imposition of an $11,000 fine.
If the person films the private parts of a child under the age of 16 years or constructs some form of apparatus or amends the structure of a building to facilitate the filming, the maximum penalty increases to 5 years imprisonment.
Voyeurism: Common Terms & Meanings
Voyeurism
Voyeurism is a behavior characterised by the act of secretly observing or spying on people who are undressing, engaged in sexual activity, or in other private or intimate situations without their knowledge or consent. This conduct is often done for sexual arousal or gratification and is considered an invasion of privacy and, in many cases, a criminal offense.
This offence carries up to 2-years imprisonment and/or $11,000 fine, pursuant to section 91J Crimes Act 1900 (NSW).
Peeping Tom
Peeping tom (voyeurism) is a disorder that involves achieving sexual arousal by observing an unsuspecting and non-consenting person who is undressing or unclothed, and/or engaged in sexual activity.
In New South Wales, Australia voyeurism is offence of watching a person engaging in a 'private act' for sexual gratification, without consent and in circumstances you're aware there was no consent.
This offence carries up to 2-years imprisonment and/or $11,000 fine, pursuant to section 91J Crimes Act 1900 (NSW).
‘Up-Skirting’
‘Up-Skirting’ refers to the intrusive act of taking pictures or capturing images, often using a camera or mobile device, up someone's skirt or dress without their knowledge or consent.
This invasive practice is typically done to obtain unauthorised images of a person's intimate areas, such as their underwear or genital region, and is widely considered a violation of privacy and, in many jurisdictions, a criminal offence.
'Down-Blousing'
‘Down-Blousing’ is when someone takes pictures or captures images using a camera or phone from above a person's clothing, usually down their neckline or low-cut attire, without the female persons knowledge or consent. The term 'down-blousing' comes from 'up-skirting,' which is a similar invasion of privacy.
This practice is often done to obtain unauthorised images of a person's breasts, chest or cleavage and is considered an invasion of privacy and, a breach of personal boundaries. It is subject to legal consequences in line with the definition of Private parts as defined by the Crimes Act 1900 (NSW) and is regarded as inappropriate, disrespectful and socially unacceptable.
Is there any Possible Defences?
Our team at Jackson John Defence Lawyers are experienced in putting the Prosecution to strict proof. What does this mean? To be found guilty, the onus is on the Prosecution to prove the “essential elements” of the offence beyond reasonable doubt.
This is a very high threshold and often cases that appear unwinnable at the start, quickly fall apart with rigorous defence strategy. Should you find yourself charged with an offence such as this, please contact our team and we will assist you to mount an effective defence case.
Why Jackson John Defence Lawyers?
We will carefully review your case and develop a strong defence strategy. We keep you informed of your options and advise you on the best course of action throughout the legal process. If you have been charged with murder, do not hesitate to contact Jackson John Defence Lawyers today. We are here to help you.
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