Law on Attempted Sexual Intercourse Without Consent

By Sahar Adatia and Jimmy Singh.

 

Sexual assault is both a serious crime and one that is becoming increasingly common.

In the last few years alone, sexual assault allegations across Australia investigated by police have been widespread, with their findings presenting frightening insights into the numbers and nature of assaults occurring.

In fact, from university campuses to workplaces, public transport and even shopping centres, unwanted sexual acts forced onto people have continued to take place and at alarming rates.

Last month, this reality of sexual assault surfaced once more as a police hunt went underway across South Australia for a man who broke into a home and sexually assaulted a woman who lay fast asleep in her bed.

The woman, from Seaford Meadows in Adelaide’s south, was awoken by the man in the early hours of the morning as he forced himself sexually upon her and was left very traumatised.

 

Break-In, Sexual Assault, Theft: The Details of the Incident 

It is alleged that on 16 November 2019, at around 1:30am, the 47-year-old man broke into the woman’s home in the vicinity of Grand Boulevard and made his way to her bed before starting to sexually assault her.

The woman awoke to the unknown man and in her startled state, chased him from her house before alerting the police of the incident.

Once the suspect had run off, the woman also noticed her purse, mobile phone and several personal items had been stolen from her house.

The incident left Detective Chief Inspector Ian Humby flabbergasted, who said police understood the man had made his way into the house via a door left unlocked to allow a pet inside.

“We treat this type of incident very, very seriously … this woman was in her house and she was asleep and her house was broken into,” Detective Chief Inspector Humby said.

“It’s very disturbing … what makes it worse is the time of night and that’s why we’re seeking assistance from the public.” 

 

Woman Left Traumatised, Struggling Following Sexual Assault Incident  

Following the incident, the woman was left distressed and was offered support after struggling with the frightening encounter.

“She’s very traumatised but she’s been offered lots of support both by her family, friends and of course South Australian police,” Detective Humby said.

“The trauma that is associated with this type of offending has often long-lasting effects psychologically, sometimes emotionally and physically as well.”

Police carried out investigations, including a search using a police patrol dog and a doorknock of the area, leading to the arrest of the man at a Seaford Meadows house.

According to Detective Chief Inspector Richard Lambert from South Australia Police’s Special Crimes Investigation Section, the man was not known to the victim but lived nearby the woman.

“When you’re woken up in the middle of the night – the early hours of the morning – by a stranger in your bedroom and in the process of assaulting you it’s very, very frightening,” Detective Chief Inspector Lambert said.

He said the man was discovered through linking forensic evidence found at the scene with DNA in the national database, which was collected by Western Australia police.

 

Understanding Sexual Assault: Key Issues

Sexual assault is a term that applies to a broad range of forced and unwanted sexual activity that is forced on a person by intimidation, physical force or coercion, or, more broadly, without their consent.

Sexual assault includes attempted rape, unwanted sexual touching or fondling, and rape, generally defined as penetration of a victim’s genitals or anus against their will.

Sexual assault also includes being forced to perform a sexual act on another person by way of manipulation, physical or emotional coercion, or psychological force, including threats or other means of intimidation.

Understanding why people sexually assault others is a complex matter. Sexual assault isn’t always about the offender getting pleasure from sexual intercourse. It can also point to their need to enjoy asserting power and control over someone.

In some cases, offenders have been abused themselves, however this is not always the case.

Whatever the circumstances, sexual assault is a serious crime.

Law on Attempted Sexual Intercourse Without Consent in NSW

Click here for defences to sexual intercourse without consent charges in NSW.

Under the NSW Crimes Act legislation, any person who even attempts to commit an offence under this legislation, including attempted sexual intercourse without consent- also known as rape, will be liable to the same penalty as though the offence was committed (section 344A Crimes Act 1900 (NSW)).

Accordingly, there is a penalty of up to 14-years imprisonment prescribed by section 61I Crimes Act 1900 (NSW)which applies to any person who has sexual intercourse with someone else without that other person’s consent, knowing that the other person did not consent to the sexual intercourse.

This also means that under the law, the same maximum penalty of 14-years imprisonment will apply to anyone who attempts to have sexual intercourse without consent under section 61I.

The charge of sexual intercourse without consent must commence in a NSW Local Court, but finalise in a NSW District Court- being a higher court.

Anyone who is found guilty of this offence will also be subject to a 7-year standard non-parole period.

The standard non-parole period represents the minimum period of full-time jail before being eligible for release back into society on parole if, and only if the objective gravity or seriousness of the offence fits in the middle range of the scale for offences of this kind.

The standard non-parole period is not strictly applied and is meant to be used only as a yard stick or guide for a sentencing Judge to impose the most appropriate and correct sentence.

For a person to be found guilty by a court for sexual intercourse without consent, the crown or prosecution is required to prove each of the below elements of this charge beyond reasonable doubt in court:

  1. The accused had sexual intercourse with the complainant (alleged victim).
  2. The complainant did not consent to it.
  3. The accused knew that the complainant did not consent to it.

Click here for a more thorough outline on how knowledge that the accused knew there was no consent can be proven in court for sexual assault charges.

For a free confidential chat about this topic, contact our experienced & respected team of criminal lawyers based in Sydney.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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