Sexual Offences - Criminal Law Defences
There are a multitude of sexual type offences throughout the State Crimes Act and Commonwealth Criminal Code.
The most serious of these is the offence of ‘Sexual Assault without Consent’ – known commonly as rape
The law states at Section 61I that:
‘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 14 years’.
The penalty increases in circumstances of aggravation such when bodily harm results or a break and enter had occurred at the same time. A maximum life in prison applies if the sexual assault occurs in company [ie: with another person and the victim suffers bodily harm].
These are very serious offences, that need an experienced lawyer who has dealt with his offence before. Here at Houston Defence lawyers we have not only dealt with this offence on multiple occasions but on one such occasion were able to convince the Director of Public Prosecution to withdraw prosecutions on 109 offences charged within this category.
There has been a sharp increase in the rates of sexual assault offences reported in NSW. The NSW Crime statistic showed an 'increases in recorded rates of sexual assault, other sexual offences and assault when comparing rates of crime in 2020 with those in 1990, the rate of:
• sexual assault is 213 per cent higher;
• other sexual offences is 126 per cent higher; and
• assault is 55 per cent higher.
Consent at law means that a person consent if:
At the time of the sexual activity, the person freely and voluntarily agrees to the sexual activity.
This can be done by words or conduct, AND they can withdraw consent to a sexual activity at any time.
BUT consent can also be withdrawn, for instance:
Sexual activity that occurs after consent has been withdrawn occurs without consent.
A person need not offer resistance as the law provides as follows:
A person who does not offer physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity.
Also, a person who consents to a particular sexual intercourse does not by that reason alone consent to other types of sexual activity
Example--: A person who consents to a sexual activity using a condom is not, by reason only of that fact, to be taken to consent to a sexual activity without using a condom.
And just because the person consent before to sexual activity does not mean by that reason alone that would consent on another occasion, for instance the law states:
A person who consents to a sexual activity with a person on one occasion is not, by reason only of that fact, to be taken to consent to a sexual activity with--(a) that person on another occasion, or (b) another person on that or another occasion.
Other sexual offences include:
Sexual touching pursuant to section 61KC of the Crimes Act which states:
Any person (the "accused person" ) who without the consent of another person (the "complainant" ) and knowing that the complainant does not consent intentionally--
(a) sexually touches the complainant, or
(b) incites the complainant to sexually touch the accused person, or
(c) incites a third person to sexually touch the complainant, or
(d) incites the complainant to sexually touch a third person,
is guilty of an offence.
: Maximum penalty--Imprisonment for 5 years.
Some sexual offences DO NOT NEED TO INCLUDE TOUCHING such as filming a person for instance:
Film private parts without consent is found in section 91L of the Crimes Act 1900 (NSW).
This offence contains elements as
1. You filmed a person’s private parts and captured it on film video or photo; and
2. You did it to obtain sexual gratification or arousal, or you did it to enable another person to obtain this gratification or arousal, and
3. A reasonable person would expect the person’s private parts could not be filmed, and
4. The other person did not consent, and
5. You knew that the person did not consent to being filmed
‘Private parts’ is defined as a person’s genital or anal area.
The maximum penalty for filming private parts is 2 years imprisonment and/or $11,000. This is reserved for the worst category of offender.
There is also an aggravated element to this offence being where the person filmed was a child under 16 years of age, or the offender changed the fabric of a building to assist committing the offence. The maximum penalty for aggravated filming private parts is 5 years imprisonment.
An attempt to do any of the above is still considered the same as committing the offence and subject to the same penalties.
Possess child abuse material is categorised as any material that depicts or describes a child (person under 16 years of age) being neglected/abused or in a sexual pose.
Possess child abuse material is found in section 91H of the Crimes Act 1900 (NSW)
The elements are as follows: -
1. You had in your possession material that constitutes child abuse material; and
2. You reasonable knew that you had this material in your possession; and
3. The material is of the kind that a reasonable person would find offensive considering the circumstances; and
4. The material depicted or described a child
(i) as a victim of torture, cruelty or physical abuse, or
(ii) A child engaging in a sexual pose or sexual activity (whether or not in the presence of other persons), or
(iii) A child in the presence of another person who is engaging in a sexual pose or sexual activity, or
(iv) The private parts of a child.
Whether a reasonable person would regard the material offensive after considering all the circumstances, the court takes into account: -
• Ordinary standards of decency and morality by reasonable adults, and
• Any literary, artistic or educational merit of the material, and
• Any journalistic merit of the material being as a record or report of a matter of public interest, and
• The general character of the material (including whether it is of a medical, legal or scientific character).
The offence is liable to imprisonment for 10 years.
Sexual offences are one of the most serious, if you are charged with a sexual offence contact Houston Defence Lawyers. We are dedicated to protecting clients' rights and reputation. We bring years of experience and expertise to defend cases vigorously, aiming for positive outcomes such as charge withdrawal, downgrading, dismissal, or minimal penalties. With a skilled team in advocacy who provides strong support and guidance throughout the legal process. Our first consultation is free.
Learn About Your Choices At Law When Charged With a Criminal Offence.
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