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UOW Pulse/Latest News /Consent and Sexual Assault

Blog

November 17, 2023
Latest News, On The Pulse

Consent and Sexual Assault

This blog contains content discussing sexual assault, consent, and related legal matters. The information provided may be distressing for some readers. Reader discretion is advised, and if you have experienced trauma or feel emotionally sensitive to these topics, it is recommended to approach the content with caution or seek support. Resources such as helplines and support services are provided within the blog for those who may need assistance.

This is an information sheet on the law as it relates to sexual assault and consent in NSW. It has been produced in collaboration between UOW Pulse and Astor Legal, a team of specialist sexual assault lawyers.

Sexual assault and consent is a complex and rapidly changing area of law in Australia. It is important to be aware of recent reforms in the area of consent as the consequences can be severe. There are numerous offences that a person can be charged with depending on their actions, even if they claim they were not aware that there was a lack of consent. These offences carry penalties that include imprisonment and the recording of a criminal conviction.

If you have been a victim of a sexual assault or feel you are at risk, there are a number of helplines and services that can assist you such as 1800RESPECT, White Ribbon and Mission Australia.

 

WHAT IS CONSENT?

Consent is when a person freely and voluntarily agrees to the sexual activity.

In 2022, consent laws in NSW were reformed. These reforms introduced the concept of affirmative consent. Affirmative consent requires a person to actively ascertain whether consent is present. It severely limits circumstances whereby a person can make an honest and reasonable mistake that consent is present.

This places an onus on both parties to take positive steps to confirm that consent is present.

 

COMMON MISCONCEPTIONS ABOUT CONSENT

Even if a person gives consent, this does not necessarily mean that the law recognises it. Legally, consent does not exist where:

– a person does not have the capacity to consent due to a cognitive incapacity or age;
– a person is asleep or unconscious;
– a person only consents due of threats of force or terror or being unlawfully detained;
– a person was intimidated or threatened or coerced without the use of threat of force;
– a person consents under a mistaken belief as to the identity of the person they are having sex with. This does not include a misapprehension as to; or
– a person was substantially intoxicated by alcohol or drugs. Substantial intoxication is a question of fact. You should consult a specialist Sydney sexual assault lawyer if this may apply to you in;
– the relationship involved the abuse of a position of authority or trust. This is most commonly through an employer, teacher or medical professional;
– just because the alleged victim did not physically resist the sexual activity, that does not mean that the accused can assume consent was present.
– a person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity. For example, a person who consents to a sexual activity using a condom is not taken to consent to a sexual activity without using a condom.
– a person who consents to a sexual activity with a person on one occasion is not to be taken to consent to a sexual activity with that person on another occasion.

 

PROVING LACK OF CONSENT

To prove lack of consent, the prosecutor would need to prove that the alleged victim did not consent and the accused knew that the alleged victim did not consent.

Knowledge as to lack of consent can be established by the prosecution proving the accused knew the alleged victim did not consent or was reckless as to whether the alleged victim consented.

If the accused did not consider whether the alleged victim was consenting or not, or they realised the possibility the alleged victim was not consenting but continued with the sexual activity, then they will be found to have been reckless.

The court will consider what positive steps the accused took to determine whether the alleged victim consented.

 

WHAT IS THE LEGAL AGE TO HAVE SEX?

The legal age to have sex is 16 years old. It is a criminal offence to have sex with a person under the age of 16 pursuant to section 66C of the Crimes Act 1900 (NSW).

Anyone under the age of 16 is incapable of giving consent to engage in sexual activity.

 

WHAT IS SEXUAL ASSAULT?

Sexual assault is when a person touches another person in a sexual manner without their consent or when a person makes another person take part in a sexual activity without consent. It includes unwanted kissing and sexual touching.

 

TYPES OF SEXUAL ASSAULT

The types of sexual assault include:

– non-consensual sexual intercourse
– sexual touching
– sexual acts
– revenge porn
– sending unsolicited nudes to someone else
– filming a person in a private act
– voyeurism
– up-skirting
– incitement to commit a sexual offence
– sexual harassment

 

SEXUAL INTERCOURSE WITHOUT CONSENT

It is an offence to have sexual intercourse with a person without their consent while knowing there is no consent. This offence is contained in section 61I of the Crimes Act 1900.

 

WHAT IS SEXUAL INTERCOURSE?

“Sexual intercourse” includes:

– penetration of the alleged victim’s genitalia (i.e. penetrating the anus or vagina). This can be by and part of the accuser’s body or an object;
– fellatio or cunnilingis (ie. Oral sex);
– oral stimulation of the victim’s genitalia (penis or vagina).

 

WHAT IS THE PENALTY FOR SEXUAL INTERCOURSE WITHOUT CONSENT?

This maximum penalty for sexual intercourse without consent is 14-years imprisonment.

There is also a standard non-parole period of 7 years imprisonment. This is a guide for the amount of time a person will have to serve in prison before they can be released to parole.

 

CAN AN ALLEGED VICTIM’S SEXUAL HISTORY BE USED IN COURT?

An alleged victim’s sexual history cannot be used in court proceedings. There are some exceptions to this such as:

– the accused and alleged victim were in a relationship at or close to the time of the alleged offence;
– The sexual experience or activity occurred close to or at the time of the alleged sexual intercourse. This only applies to a limited extent;
– The sexual history was disclosed in the prosecution brief of evidence.

 

SEXUAL TOUCHING

Sexual touching is the intentional touching of another person, in, circumstances that a reasonable person would consider the touching to be “sexual”, without consent and knowing the other person does not consent. The offence is contained in section 61KC of the Crimes Act.

Sexual touching was formerly known as the offence of indecent assault.

When assessing whether the touching was sexual, the court will look at the circumstances of the

touching, whether it was for sexual gratification, where the alleged victim was touched and how they were touched. Experienced criminal lawyers Sydney will be able to advise on the specifics of this.

This maximum penalty for sexual touching is 5 years imprisonment.

 

SEXUAL ACT

The offence of ‘sexual act’ is when an accused intentionally commits an act

with or towards another person without their consent and knowing there is no consent, and where a reasonable person would consider the act as “sexual”.

This was formerly known as the offence of “act of indecency”.

The maximum penalty for sexual act is 18-months’ imprisonment and/or a $5,500 fine, or both. This offence is contained in section 61KE of the Crimes Act.

 

REVENGE PORN

Revenge porn is when an accused person intentionally records or distributes an intimate image of another person without their consent and knowing they do not consent. It is also an offence to threaten to record or distribute an intimate image.

The offences are contained under sections 91P and 91Q of the Crimes Act.

The maximum penalty for recording or distributing an intimate image without consent is 3-years’ imprisonment and/or an $11,000 fine.

The same penalty applies to anyone who threatens to distribute or record intimate image without consent.

An intimate image includes private body part images, or images depicting someone engaging in a private act.

 

SENDING NUDES OR SEXTING

Sending nudes or sexting can be seen as using a carriage service (eg. a mobile phone or computer) to harass, offend or menace.

The maximum penalty for using a carriage service to menace, harass or offend is 5 years jail.

 

FILMING A PERSON IN A PRIVATE ACT

It is an offence to film a person in a “private act” without consent, knowing that the person does not consent.

The maximum penalty for filming a person in a private act is 2 years imprisonment and/or an $11,000 fine.

A “private act” is assessed by reference to a number of factors, including:

– if the act is normally done in public; and
– whether the person being filmed would ordinarily expect privacy;
– whether the filming is done for sexual pleasure, or to enable someone else to gain sexual gratification.

Some examples of a private act include:

– a person in an undressed state,
– a person using a toilet,
– A person showering,
– A person bathing.

VOYEURISM

Voyeurism is the offence of observing or watching a person engage in a private act for sexual gratification without the alleged victim’s consent, knowing there is no consent.

It is contained in section 91J of the Crimes Act.

The maximum penalty for voyeurism is 2 years jail and/or an $11,000 fine.

 

FILM PRIVATE PARTS

It is a criminal offence to film a person’s private parts for sexual gratification without consent while knowing the alleged victim did not consent. The offence is contained in section 91L of the Crimes Act.

This offence covers the act of upskirting, which is when a person films up another person’s skirt, without their consent.

The maximum penalty for filming another person’s private parts is 2 years imprisonmentand/or an $11,000 fine.

 

INCITEMENT TO COMMIT A SEXUAL OFFENCE

It is a criminal offence to intentionally incite another person to commit a sexual offence. It is contained in section 80G of the Crimes Act.

Importantly, there is no requirement for a sexual offence to have been committed, only that an incitement has taken place.

The maximum penalty for incitement varies based on the type of sexual offence incited. The penalty will be the same maximum penalty as that of the offence being incited.

For example, if the incitement was to commit sexual intercourse without consent, the maximum penalty would be 14 years imprisonment. However, if the incited sexual offence was filming a person without consent in a private act, the maximum penalty would be 2 years jail and/or a $11,000 fine.

 

SEXUAL HARASSMENT

Sexual harassment is unwanted sexual conduct where a reasonable person would expect the other person to feel offended, humiliated or intimidated. It is legislated under the Sex Discrimination Act 1984 (Cth) and the Anti-Discrimination Act 1977 (NSW).

Examples of sexual harassment include:

– making unwanted sexual advances,
– making unwanted requests for sexual favours,
– making unwanted sexual jokes.

A sexual harassment complaint may be made against individuals and their employers.

Employers are usually not liable for their employees’ sexual harassment. However, an employer may be liable if they do not take all reasonable steps to minimise the risk of sexual harassment in the workplace.

Reasonable steps must be more than merely having policies and procedures to stop sexual harassment in the workplace. There should be a lively and real interest in disciplining perpetrators of sexual harassment.

Sexual harassment can result in a civil court ordering the perpetrator and/or employer paying damages.

 

DEFENCES

Some defences to sexual assault include:

– Honest and reasonable mistake: where the accused believed consent was present and that belief was reasonable in all of the circumstances. Since the introduction of affirmative consent in NSW, it has become much more difficult to run this defence.
– Automatism: the accused’s actions were involuntary. For example, committed while sleepwalking.
– Necessity: the accused’s actions were necessary in the circumstances.
– Duress: the accused was forced to commit the offence.

 

IMPACT OF CONVICTION

A conviction for a sexual offence has long lasting consequences for a person’s livelihood, career and ability to travel overseas.

For most offences, if a person receives a non-custodial penalty the conviction will become ‘spent’ and no longer appear on their criminal record. However, a conviction for a sexual offence remains on a person’s criminal history forever.

If a person is convicted of a child sex offence, they will be placed on the child sex offender register. This usually lasts for at least 7 years. There are associated restrictions on where a person on the register can live, work and who they can associate with.

SUPPORT SERVICES

If you are a student at UOW and find yourself distressed by the content discussed in this blog or if you have experienced any form of sexual harm, harassment, domestic or family violence, bullying, or discrimination, remember that you are not alone.

The UOW community cares about your well-being, and support is available. Please consider reaching out to the UOW Student Advocacy and Support team (SARC). They are here to provide assistance and a safe space for anyone who has witnessed or experienced such situations.

Contact SARC:

Your well-being matters, and there are people ready to help you navigate through difficult times. Don’t hesitate to reach out for support.

Written By: Shannon Green