Criminal defence for sexual Assault offences

Sexual Assault Lawyers Sydney

Sexual Assault Offences

Sexual assault is one of the most serious charges under the Crimes Act 1900 (NSW). If you are facing an allegation of sexual assault, it’s essential to have expert legal representation. At Kingston Fox Lawyers, we understand the complex nature of these cases, as well as the serious consequences that a conviction can bring, including terms of imprisonment.

Our dedicated team includes former prosecutors and has more than 40 years of combined experience. We will provide you with the strategic legal advice you need, without judgement. We are committed to giving you a robust defence and ensuring that your rights are protected throughout the legal process.

How Sexual Assault Cases Are Prosecuted in NSW

In New South Wales, sexual assault (Section 61I) and aggravated sexual assault (Section 61J) offences are strictly indictable offences, which means they are finalised in the District Court before a judge and usually with a jury.

Charges like sexual touching (Section 61KD) and sexual act (Section 61KE), are usually finalised in the Local Court but are often charged together with sexual assault as “back up offences”. This means that the prosecution can rely on the less serious charge if they cannot prove a sexual assault beyond reasonable doubt.

Sexual assault cases are inherently complex and the legal process can feel daunting. It is important to obtain early legal advice from a criminal defence lawyer, before decisions are made particularly about participating in a police interview. The law about consent has changed in recent years and understanding where you stand is the first step in making good decisions that will assist in your defence.

Below we’ve outlined the different types of sexual assault, what the prosecution must prove, and maximum penalties for charges. For more information specific to your case, get in touch with Kingston Fox Lawyers to speak to a solicitor.

Meet the Team Behind Your Defence

Alexandra Sarmed

BA LLB, Partner

Phone: 0455 039 707

Erin Hoile

BA LLB LLM, Partner

Phone: 0455 039 660

Shane Arie

LLB, Solicitor

Phone: 0455 039 112

Tim Stern

B.Ed(Hons), M.Bus, JD, Solicitor

Phone: 0457 781 133

Sam Key

Law Clerk

Phone: 02 8360 7811

Types of Sexual Assault Offences in NSW

Sexual Assault (Section 61I)

Sexual assault is prosecuted under s. 61I of the Crimes Act and involves having sexual intercourse with another person without their consent.

Sexual intercourse is defined at s. 61HA broadly and includes:

penetration to any extent of the vagina or anus with any body part or object.
Oral sex, whether that is any part of the genitalia of a person into the mouth of another person or the application of the mouth or tongue to the female genitalia.
the continuation of sexual intercourse.

The prosecution must prove that:

Sexual intercourse occurred.
The act was without the consent of the other person.
The accused knew that the other person was not consenting or was reckless as to whether the person was consenting.

Maximum Penalty: 14 years imprisonment

Aggravated Sexual Assault (Section 61J)

The offence of aggravated sexual assault under Section 61J is where a person has sexual intercourse with another person without their consent and in circumstances of aggravation and who knows that the other person does not consent.

Circumstances of aggravation are:

inflicting or threatening to inflict actual bodily harm or threatens to inflict actual bodily harm by use of an offensive weapon.
inflicting or threatening to inflict grievous bodily harm or wounding.
being in the company of another person other than the complainant.
the complainant is under the age of 16 years.
the complainant is under the authority of the accused person.
the complainant has a serious physical disability or a cognitive impairment.
the complainant is deprived of their liberty.
the accused breaks and enters the premises with the intention to commit the offence or any other serious indictable offence.

Maximum Penalty: 20 years imprisonment

Aggravated Sexual Assault in Company (Section 61JA)

The offence of aggravated sexual assault in company, prosecuted under s. 61JA, is the most serious sexual assault offence.

Aggravated sexual assault in company applies where a person has sexual intercourse with another person without their consent, knowing that the person does not consent and the accused is in the company of another person, and either:

the accused inflicts or threatens to inflict actual bodily harm on the complainant or another person present or nearby, or
threatens to cause actual bodily harm by use of an offensive weapon, or
deprives the complainant of their liberty.

Maximum Penalty: Life imprisonment

Sexual Touching (Section 61KC)

The offence of sexual touching under s. 61KC is where a person who, without the consent of another person, and knowing that persons does not consent, intentionally:

sexually touches the person, or
incites the person to sexually touch the accused person, or
incites a third person to sexually touch the complainant, or
incites the complainant to sexually touch a third person.

Section 61HB of the Crimes Act defines sexual touching to mean a person touching another person with any part of their body with anything else, or through anything including clothing, either on the complainant or the accused, in circumstances where a reasonable person would consider the touching to be sexual.

Maximum Penalty: 5 years imprisonment (2 years for matters finalised in the Local Court)

Aggravated Sexual Touching (Section 61KD)

Aggravated sexual touching is set out under s 61KD and is the same as the sexual touching offence but includes circumstances of aggravation, namely:

the accused person is in company of another person or persons, or
the complainant is under the authority of the accused person, or
the complainant has a serious physical disability, or
the complainant has a cognitive impairment.

Maximum Penalty: 7 years imprisonment

Sexual Act (Section 61KE)

A sexual act, defined under Section 61HC is an act, other than sexual touching which is carried out in circumstances where a reasonable person would consider the act to be sexual. In determining whether the act is a sexual act, matters to be taken into account are:

whether the area of the body involved is the person’s geneital area, anal area or breasts, or
whether the person carrying out the act does so to obtain sexual gratification, or
whether any other aspect of the act makes it sexual.

The offence of sexual act is set out at s. 61KE of the Crimes Act and involves a person who, without the consent of another person and knowing that person does not consent, intentionally:

carries out a sexual act with or towards the complainant, or
incites the complainant to carry out a sexual act with or towards the accused, or
incites another person to carry out the sexual act with or towards the complainant, or
incites the complainant to carry out a sexual act with or towards a third person.

A sexual act could include masturbation in front of a complainant, inciting a complainant to masturbate, or carrying out or inciting a simulated sexual act.

Maximum Penalty: 18 months imprisonment

Aggravated Sexual Act (Section 61KF)

The offence of aggravated sexual act, set out at s. 61KF, is where a person who, without the consent of another person and knowing that person does not consent, intentionally commits the offence of sexual act, in circumstances of aggravation, namely:

being in company of another person other than the complainant, or
the complainant is under the authority of the accused person, or
the complainant has a serious physical disability or has a cognitive impairment.

Maximum Penalty: 3 years imprisonment

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The Kingston Fox Difference

Why Choose Kingston
Fox Lawyers?

Kingston Fox Lawyers are more than just legal representatives – we are
your partners in navigating the challenges ahead. What sets us apart is our deep commitment to providing a tailor-made, personalised service, backed by over
40 years of combined experience in criminal law.

Our team, which includes former prosecutors, brings unparalleled expertise and a strategic advantage to your defence.

We pride ourselves on our supportive, client-focused approach. Clients often share how much more at ease they feel after speaking with us, reassured by our understanding and straightforward advice. We focus not just on the legal challenges but on your future, ensuring that you can move forward with confidence.

Frequently Asked Questions

What does consent mean in the context of sexual assault?

In NSW, consent is defined as a person’s free and voluntary agreement to engage in sexual activity. The law makes it clear that consent cannot be given if a person is:

Coerced or threatened.
Asleep or unconscious.
Substantially intoxicated by drugs or alcohol.
Unable to understand the nature of the act due to cognitive impairment or other factors.
Not able to consent because of their age – that is where the complainant is below the legal age of consent.

Additionally, silence or lack of resistance does not automatically imply consent. Consent must be given clearly, and the law has recently evolved to require affirmative consent, meaning that both parties must actively agree to participate ( and continue) in the sexual activity.

If the accused believed the other person was consenting, the prosecution must show that this belief was unreasonable in the circumstances. This can be a critical point in defending sexual assault charges.

What should I do if I am charged with sexual assault?

If you are charged with sexual assault, it is crucial to take immediate action to protect your rights:

Seek legal representation: Before speaking to police or providing a statement, consult with an experienced criminal lawyer. Anything you say can be used as evidence in court, so it is vital to have legal guidance from the outset.
Do not make admissions or statements: Avoid discussing the case with anyone other than your lawyer. Statements made to friends, family, or colleagues can inadvertently harm your defence.
Gather evidence: If you have any relevant evidence, such as text messages, emails, or social media interactions that could support your version of events, share these with your lawyer as soon as possible.

Kingston Fox Lawyers can help you understand the charges, assess the evidence, and build a robust defence to protect your rights and your future.

How are sexual assault charges defended?

Sexual assault charges can sometimes be reduced or dismissed, depending on the circumstances and the strength of the evidence. Several factors can influence this, such as:

Challenging the evidence: Your lawyer may challenge the credibility of the complainant’s testimony, forensic evidence, or other elements of the prosecution’s case.
Consent: If there is evidence that the complainant consented, or if you had a reasonable belief that consent was given, this can form a strong defence.
Negotiations with the prosecution: When appropriate, Kingston Fox Lawyers may engage in negotiations with the prosecution to seek a fair outcome, especially if the Crown case has substantial weaknesses.

Every case is unique, and Kingston Fox Lawyers will work with you to understand your situation fully, exploring all possible avenues to develop a strategic and strong defence.

How does the prosecution prove sexual assault?

To be found guilty of sexual assault, the prosecution must prove beyond a reasonable doubt the following elements:

1. Sexual intercourse took place, as defined by the law.
2. The complainant did not consent to the sexual activity.
3. The accused either:
  - Knew the complainant was not consenting.
  - Was reckless about whether the complainant was consenting.
  - Held an unreasonable belief that the complainant was consenting.

The prosecution will rely on various types of evidence, including:

Evidence from the complainant and other witnesses.
Medical or forensic evidence.
Digital evidence such as text messages, social media interactions, or phone records.

How does sex offender registration work in NSW?

If convicted of sexual assault, you will likely be placed on the NSW Child Protection Register. This registration can significantly affect your life, including:

Employment restrictions: You may be prohibited from working in certain industries, particularly those involving children or vulnerable individuals.
Travel limitations: Registration may restrict your ability to travel internationally, and some countries may deny entry to individuals on a sex offender registry.
Ongoing supervision: You may be subject to regular reporting requirements, curfews, or other supervision conditions.

The length of registration and the specific conditions imposed will depend on the severity of the offence and other factors. Kingston Fox Lawyers can help you understand these implications and work to minimise the long-term impact of registration.

What defences are available for sexual assault charges?

everal defences can be raised against sexual assault charges, depending on the circumstances of the case. Common defences include:

Consent: Arguing that the complainant willingly participated in the sexual activity, or that the accused had a reasonable belief that the complainant consented.
Mistaken identity: In some cases, it may be possible to argue that the accused was not the person who committed the act.
False accusations: If the accusation is motivated by malice, revenge, or misunderstanding, your lawyer can work to expose these factors in court.
Challenging the evidence: Your lawyer may challenge the reliability of the complainant’s testimony, forensic evidence, or digital communications.

Kingston Fox Lawyers will assess your case and work with you to determine the most effective defence strategy based on the available evidence.

Summary of Sexual Assault Offences & Maximum Penalties

Offence	Section	Maximum Penalty
Sexual Assault	61I	14 years imprisonment
Aggravated Sexual Assault	61J	20 years imprisonment
Aggravated Sexual Assault in Company	61JA	Life imprisonment
Sexual Touching	61KC	5 years imprisonment (2 years if finalised in the Local Court)
Aggravated Sexual Touching	61KD	7 years imprisonment
Sexual Act	61KE	18 months imprisonment
Aggravated Sexual Act	61KF	3 years imprisonment

The maximum penalties provided for in the legislation for each offence are reserved for the worst case scenario for each of those matters. Any sentence a court imposes on a person if found guilty, takes into account a broad range of factors including the objective seriousness of the offence, if the person has entered an early plea of guilty, the person’s criminal history, the person’s subjective case including their physical and mental health, their family and upbringing and prospects of rehabilitation, to name just some factors.