Sexual Assault | Sexual Intercourse Without Consent 

What does “sexual assault” mean in NSW?

Sexual assault” is sexual intercourse without consent where the accused knew, was reckless, or had no reasonable basis to believe there was consent. “Sexual intercourse” covers penetration to any extent, oral sex, and cunnilingus (as defined in s 61HA). Max 14 years.

Consent: must be freely and voluntarily agreed, can be withdrawn anytime, and silence/lack of resistance is not consent.

What defences could apply to me?

• Consent or reasonable belief in consent (including evidence of what was said or done to check consent). 
• Identity/mistaken identity; reliability of CCTV, DNA, phone, or digital evidence.
• Inconsistencies in complaint/timing; lack of proof beyond reasonable doubt.
• Mental health/capacity defences where legally available.

What situations commonly lead to these charges?

• Date/party encounters where alcohol/drugs blur communications about consent.
• Prior relationships where one person assumes consent from history rather than checking.
• Digital chats (texts/socials) used to argue for/against consent or what the accused did to ascertain it. 

Is there any benefit to an early guilty plea?

What must police prove?

• Sexual intercourse occurred;
• The complainant did not consent; and
• The accused knew this (including because no reasonable steps were taken to confirm consent).

What penalties could I face—and which court hears it?

• Maximum penalty: 14 years’ imprisonment (s 61I). Standard non-parole period: 7 years (mid-range matters). 
• Court: Matters start in the Local Court but sexual assault is strictly indictable and is committed to the District Court for trial/sentence.

What is consent? 

Consent is a clear, voluntary, informed “yes” to sexual activity at that moment. It must be ongoing and can be withdrawn at any time.

Consent is not present when a person:

• Is underage;
• Can’t understand or decide due to cognitive impairment or heavy intoxication;
• Is asleep or unconscious;
• Is unlawfully confined/detained;
• Agrees because of threats, force, intimidation, or fear.