What is Considered Sexual Assault? An Up-To-Date Guide

Sexual assault is the non-consensual sexual activity carried out by one person against another and includes a broad range of sexual conduct including rape, sexual touch, and child sexual assault.

Rape also means sexual assault without consent. They can be used interchangeably.

What is considered as sexual assault according to the laws of New South Wales in Australia has evolved over time, becoming more and more complex over the years. Our sexual assault lawyers Sydney team delve into explaining sexual assault; the meaning of consent; how the prosecution prove it; and the common defence of a reasonable belief of consent in rape cases.

We’ve all heard of the various NRL rape cases, not to mention the infamous Jarrod Hayne rape trial where the former rugby league player had his conviction quashed on 12 June 2024 following a guilty verdict in May 2023.

The publics experiences of rape trials have perhaps shaped and changed the meaning of what counts as rape when it comes to our sexual assault consent laws.

Sexual Assault Definition | What Counts as Sexual Assault?

In Australia Sexual intercourse without consent or rape is when the prosecution proves each of the following three essential elements beyond reasonable doubt:

1. Sexual intercourse took place between the defendant and the victim;
2. The Victim did not consent to the sexual intercourse that took place;
3. The defendant had knowledge at the time of the sexual intercourse that the victim was not consenting to it.

Failure to prove any one or more of the above three essential elements of sexual assault will result in the defendant being acquitted and discharged.

A good criminal defence lawyer will identify whether or not the prosecution evidence is capable of proving each of the three elements of a sexual intercourse without consent offence.

If any one or more elements of the offence are not capable of being proven by the prosecution, an experienced lawyer will know exactly how to approach the Director of Public Prosecution (DPP) to seek the withdrawal of the charge prior to the trial date, saving significant legal fees, time and stress.

Section 61I of the Crimes Act 1900 (NSW) is the law on sexual intercourse without consent that prescribes a maximum penalty of 14 years imprisonment with a 7 year standard non-parole period.

The standard non-parole period is the applicable guidepost period of time an offender is to spend behind bars in prison before being eligible for release on parole and only applies to cases that fall within the middle of the range of objective seriousness for such crimes. It is only a guide for the sentencing Judge to consider when imposing a sentence.

How To Prove No Consent in Sexual Intercourse Offences

The three main components of sexual intercourse without consent are, sexual intercourse with the victim; absence of consent by the victim; and the defendant’s knowledge that the victim did not consent to the sexual intercourse.

The first two elements are usually not in dispute. The commonly disputed element that the prosecution may have difficulty proving is that the defendant knew that the victim was not consenting.

To prove that the defendant knew that there was no consent to the sexual intercourse, the prosecution must prove any one of the following:

1. The defendant actually knows that the victim does not consent to the sexual intercourse; or
2. The defendant is reckless in the sense that he or she realised the possibility that there was no consent but continued with the sexual intercourse regardless, or the defendant did not turn his or her mind to whether or not there is consent, or the defendant did not care whether or not the victim consents; or
3. The defendant’s belief that the victim consents was not reasonable in the circumstances.

Usually in sexual assault trial, a defendant raises the last issue, namely that he or she believed that the victim consented, and that such belief was reasonable in the circumstances.

For a belief that the victim consents to a sexual intercourse to be considered a reasonable belief, the defendant must at least do something to ascertain within a reasonable time before or at the time of the act whether the victim consents to it. The conduct of ascertaining this can be by words or actions, according to section 61HK(2) of the Crimes Act 1900 (NSW). This requirement will not apply to a defendant who has a cognitive impairment or mental health impairment where that mental infirmity was a substantial reason for not saying or doing anything to ascertain whether the victim consents.

If the defendant is intoxicated from alcohol or other illicit drugs at the time of the sexual intercourse, when determining the above issue of having a reasonable belief in the circumstances that the victim consents is not to be taking into account in favour of the defendant to establish the requisite belief.

What Amounts to Sexual Consent and What Doesn’t

The following are some important rules about consent and sex that the law upholds in New South Wales:

1. A person consents to a sexual activity if, at the time of it, the person freely and voluntarily agrees to it.
2. A person may, by words or conduct, withdraw consent to sexual activity at any time.
3. Sexual activity that occurs after consent has been withdrawn occurs without consent.
4. A person who does not offer physical or verbal resistance to a sexual activity is not, by that reason on its own, to be taken to consent to it.
5. A person who consents to particular sexual activity is not, by that reason only, to be taken to consent to any other sexual activity. For example, if you consent to sex with a condom, this on its own, does not mean that you also consent to sex without a condom as they are two different types of sexual activities.
6. A person who consents to a sexual activity with a person on one occasion is not, by reason of that fact only, to be taken to consent to sexual activity with that person on another occasion.
7. A person does not consent to a sexual activity if:
   • The person does not say or do anything to communicate consent, or
   • The person does not have the capacity to consent to the sexual activity, or
   • The person is so affected by alcohol or another drug as to be incapable of consenting to the sexual activity, or
   • The person is unconscious or asleep, or
   • The person participates in the sexual activity because of force, fear of force, or fear of serious harm of any kind to the person, another person, an animal or property, regardless of when the force or the conduct giving rise to the fear occurs, or whether it occurs as a sin le instance or as part of an ongoing pattern; or
   • The person participates in the sexual activity because of coercion, blackmail or intimidation, regardless of when the coercion, blackmail or intimidation occurs, or whether it occurs as a single instance or part of an ongoing pattern; or
   • The person participates in the sexual activity because the person or another person is unlawfully detained; or
   • The person participates in the sexual activity because the person is overborne by the abuse of a relationship of authority, trust or dependence, or
   • The person participates in the sexual activity because the person is mistaken about the nature of the sexual activity, or the purpose of the sexual activity, including about whether the sexual activity is for health, hygienic or cosmetic purposes, or
   • The person participates in the sexual activity with another person because the person is mistaken about the identity of the other person, or that the person is married to the other person; or
   • The person participates in the sexual activity because of a fraudulent inducement. A fraudulent inducement does not include a misrepresentation about a person’s income, wealth or feelings.

Key Objectives of Our Sex and Consent Laws

The main objectives of our consent and knowledge of sexual consent laws is to recognise that every person has a right to choose whether or not to participate in a sexual activity; that consent to a sexual activity is not to be presumed; and consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between the persons participating in the sexual activity. Section 61HF of the Crimes Act expressly reflects these objectives.

Types of Sexual Assault

The sentence for sexual assault ranges from up to 2 years imprisonment to life sentences depending on the level of seriousness of the sexual assault offence.

One of the most serious sexual assaults are child sex assault offences, while some of the less serious are sexual touch and sexual act offences.

The below are a list of some of the types of sexual assault offences:

1. Sexual intercourse without consent under section 61I Crimes Act 1900 (NSW)
2. Child Sexual Abuse offences under sections 66a, 66B, 66D Crimes Act 1900 (NSW)
3. Sexual touch without consent under section 61KC Crimes Act 1900 (NSW)
4. Sexual act without consent under section 61KE Crimes Act 1900 (NSW)
5. Sexual Servitude under section 80D Crimes Act 1900 (NSW)
6. Incest under section 78A Crimes Act 1900 (NSW)

NRL Rape – Example of Sexual Assault

Jarryd Hayne, a former professional rugby league player and NFL athlete, has been through a string of legal proceedings spanning numerous years, predominantly cantered around allegations of sexual assault.

2018 Allegations and the Initial Jury Trials

In September 2018, Hayne was accused of sexually assaulting a woman, referred to as BA, at her residence in Newcastle, Australia. The incident allegedly occurred on the night of the NRL Grand Final. Hayne was arrested in November 2018 and charged with aggravated sexual assault. His first trial in late 2020 resulted in a hung jury, leading to a retrial in March 2021. During this second trial, Hayne was found guilty of two counts of sexual intercourse without consent and was sentenced in May 2021 to five years and nine months in prison, with a non-parole period of three years and eight months.

The Appeals and Subsequent Trials

In February 2022, Hayne’s conviction was quashed by the New South Wales Court of Criminal Appeal, citing issues with jury directions and the exclusion of certain evidence. A third trial commenced in March 2023, culminating in April 2023 with Hayne again being found guilty of sexual assault. He was sentenced to four years and nine months in prison.

Overturning of Conviction and Hayne’s Release

In June 2024, Hayne’s conviction was overturned on appeal by the NSW Court of Criminal Appeal for the second time on the grounds that a Judge made an error of law in not permitting the alleged victim to be further questioned by Hayne’s lawyers during the trial which was a fundamental issue going to the alleged victim’s credibility. This led to Hayne’s release after serving approximately two years in prison. Prosecutors subsequently decided not to pursue a fourth trial, effectively withdrawing the charges against him.

Despite the cessation of criminal proceedings, Hayne continued to face legal challenges, namely, a civil lawsuit filed by the same accuser.

Throughout his legal ordeals, Hayne has consistently maintained his innocence regarding the allegations.

An issue this case along with a string of many others over the years raises is the false accusations laws in Australia. People in the past have and do lie about being assaulted. Our criminal justice system is the way it is to protect innocent people from those false accusations.

What are Your Rights After A Sexual Assault Incident?

Sexual assault victims have the right to approach police to file a formal complaint. The police will do this in the most discreet and respectful way possible given the trauma a victim has already been through. The Police may immediately file and issue an apprehended domestic violence order (ADVO) to protect the victim further. In the interim police will continue their investigations into the sexual assault complaint before determining whether or not to file any charges.

What to do if You’ve Been Sexually Assaulted

Victims of sexual assault in New South Wales can contact NSW Police. You can either call your local police station or attend in person where you can lodge a formal complaint. This will instigate an investigation where the police will request from you a formal statement that they will sit down and write up for you as you explain to them with what occurred with as much detail as possible. Sometimes this will be done in the form of a video recording instead of a written statement. If the sexual assault is very recent, then the police may arrange for you to attend the hospital for medical examination.

Another option to report it is to complete and submit a reporting questionnaire to the police.

An alternative approach for sexual assault victims is to contact NSW Rape Crisis Centre on 1800 424 017.

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