Section 61I of the Crimes Act 1900 provides that any person who has sexual intercourse without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years
Sexual assault is commonly known as rape. However, the law uses the term sexual assault or sexual intercourse without consent which is more gender neutral terms.
The commission of the crime sexual assault means that sexual intercourse was committed without the other person’s consent and with the knowledge that the other person does not consent.
Sexual intercourse includes oral sex and penetration of the vagina or anus of a person using a body part or an object.
The absence of consent in relation to sexual assault is when the person does not freely, consciously and voluntarily agrees to sexual intercourse. There is also the lack of consent when a person is unable to give consent to sexual intercourse such when the person is intoxicated, drugged, affected by drugs, is asleep or unconscious.
Individuals who do not have the ability to understand what they are consenting to because of their age or intellectual incapacity are deemed not to give a free and voluntary consent to sexual intercourse.
People under 16 years old are considered to be incapable of giving consent due to their tender age. There is likewise no consent when a person uses influence or trust reposed in him/her by the other person to make that person submit to sexual intercourse.
The crime of sexual assault is indictable in the District or Supreme Court and punishable by 14 years jail.
The prosecution needs to prove beyond reasonable doubt the following elements:
Perhaps the most likely defence is that the person accused of sexual assault had a reasonable belief that the other person consented to sexual intercourse. An accused can prove in court that the sexual intercourse was consensual.
Another defence is a denial that sexual intercourse happened, but this defense is usually countered by a medical certificate coupled with the testimony of the victim.
The defences adopted by the accused will depend on the facts or circumstances of the case. For instance, it would not be advisable for the defendant to claim that the sexual intercourse was consensual if the victim is under 16 years of age or is intellectually incapacitated.
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.