Sexual Act Offences19 December 2023 in Criminal Law
Being charged with a sexual act offence is a serious matter and can result in significant penalties. In NSW, there are a variety of circumstances which substantiate the commission of a sexual act offence.
Brander Smith McKnight’s criminal lawyers appreciate the gravity of being charged with a sexual act offence and understand the overwhelming impact such a charge can have on you. We are experienced in these matters and are able to defend you.
What is a sexual act?
A sexual act is an act that is carried out in circumstances where a reasonable person would consider the act to be sexual. When considering whether an act is sexual the court will consider the area of the body involved in the act, the reason the act was being performed and any other aspect of the act which may render it sexual in nature. An act carried out for a genuine medical or hygienic purpose is not a sexual act. This is a simplified legal definition of what a sexual act is, a more exact definition is outlined in section 61HC of the Crimes Act 1900 (NSW).
Various sexual act offences are explained in simple terms below.
Sexual Act Offences (section 61KE Crimes Act 1900 (NSW))
A person will be guilty of a sexual act offence if they intentionally, without the alleged victim’s consent and with knowledge that the alleged victim does not consent:
- Carries out a sexual act with or towards the alleged victim, or
- Incites the alleged victim to carry out a sexual act with or towards the alleged offender,
- Incites a third person to carry out a sexual act with or towards the alleged victim, or
- Incites the alleged victim to carry out a sexual act with or towards a third person.
The maximum penalty for a sexual act offence is 18 months imprisonment.
Aggravated sexual act offences(section 61KF Crimes Act 1900 (NSW))
An aggravated sexual act offence is a more serious form of a sexual act offence. An aggravated sexual act offence occurs where the offence is intentionally carried out in circumstances of aggravation. Circumstances of aggravation include where:
- The alleged offender is in the company of another person or persons, or
- The alleged victim is under the authority of the alleged offender, or
- The alleged victim has a serious physical disability, or
- The alleged victim has a cognitive impairment.
The maximum penalty for an aggravated sexual act offence is 3 years imprisonment.
Why BSM Lawyers?
Our highly experienced criminal team understand that being charged with a sexual offence is understandably stressful and overwhelming. Our lawyers can assist you with your sexual offence charge alleviating the difficulty of managing the charge on your own. Our experienced sexual assault lawyers have vast experience with handling sexual offence cases and have achieved excellent results.
Our expert criminal defence team are able to run most court matters without the added expense of a barrister. However, for serious criminal matters we have a panel of expert barristers who we frequently engage. Our sexual assault lawyers are committed to providing excellent legal services and you can rest assured that we will fight tirelessly in your corner.
Brander Smith McKnight has offices located in Sutherland, Sydney CBD, Parramatta and Wollongong.
What is the legal definition of consent?
Section 61HE of the Crimes Act 1900 (NSW) defines the meaning of consent in relation to sexual act offences. In simple terms, a person can only consent to sexual activity if they freely and voluntarily agree to the sexual activity. Section 61HE explains that there are various circumstances where consent is invalidated, such as where:
- a person does not have the capacity (because of age or cognitive incapacity) to consent to the sexual activity
- a person consents to the sexual activity because of threats of force or terror
- if the person does not have the opportunity to consent to the sexual activity because the person is unconscious or asleep
- a person under the mistaken belief as to the identity of the other person
In addition, there are various instances that may invalidate a person’s consent to sexual activity including where:
- the person consents to the sexual activity, while substantially intoxicated by alcohol or any drug
- the person consents to the sexual activity because of intimidatory or coercive conduct
- the person consents to the sexual activity because of the abuse of a position of authority or trust
For more information on the legal nuances of consent please contact the criminal lawyers at Brander Smith McKnight.
What is legally considered knowledge of consent?
Section 61HE of the Crimes Act 1900 (NSW) defines what is considered knowledge of consent in relation to sexual act offences. A defendant will know that an alleged victim does not consent to sexual activity if:
- The person knows that the alleged victim does not consent to the sexual activity
- The person is reckless as to whether the alleged victim consents to the sexual activity
- The person has no reasonable grounds for believing that the alleged victim consents to the sexual activity
What is a cognitive impairment?
A sexual touching offence may be aggravated where the victim is deemed to have a cognitive impairment. Section 61HD of the Crimes Act 1900 (NSW) explains that a person will be considered as having a “cognitive impairment” if the person has:
- An intellectual disability
- A developmental disorder
- A neurological disorder
- A severe mental illness
- A brain injury
Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.