It is necessary in the offence of aggravated sexual assault that there was a sexual intercourse. However, other elements of the offence must be proven before a judgment of conviction is obtained.
The offence of aggravated sexual assault differs from simple sexual assault. What distinguishes the former from the latter is the addition of a circumstance that makes the offence more serious. In the same manner, a higher penalty is imposed upon the offender of aggravated sexual assault.
According to Victim Service, Attorney General and Justice (NSW), sexual assault occurs when a person is forced, coerced or tricked into sexual acts against their will or without their consent, or if a child or young person under 18 years old is exposed to sexual activities.
The offence of aggravated sexual assault is committed if the offender committed the offence of sexual assault (rape) with any of the aggravating circumstance provided by the law. Thus, it is necessary that the offence of simple sexual assault is committed before there can be an offence of aggravated sexual assault.
The penalty imposed upon the convicted aggravated sexual assault offender is higher than that of the offender in simple sexual assault.
Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.(Section 61J (1), Crimes Act 1900).
Lack of consent on the part of the victim and knowledge of the offender that the victim did not give consent at the time when the offence was committed are the important elements of the offence of aggravated sexual assault that need to be proven by the prosecution.
The main reason the offence is considered as aggravated sexual assault is because of the presence of any of the aggravating circumstances provided under the law. Thus, Section 61J (2) of Crimes Act 1900 provides that "circumstances of aggravation" means circumstances in which:
(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
(b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
(c) the alleged offender is in the company of another person or persons, or
(d) the alleged victim is under the age of 16 years, or
(e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(f) the alleged victim has a serious physical disability, or
(g) the alleged victim has a cognitive impairment, or
(h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
(i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.
If any of the above-mentioned aggravating circumstances is present in the commission of sexual assault, the offence will become an aggravated sexual assault. The importance of qualifying the offence from a simple assault to aggravated sexual assault is the fact that the court is authorized to impose a higher penalty.
A person who has been charged for the offence of aggravated sexual assault can always alleged in his defence that there was a consensual sexual intercourse. In addition to that, he may also allege that he had reasonable ground that based on the acts of the victim he was led to believe that the victim consented to the sexual intercourse.
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.