Sexual Assault – s 61I Crimes Act 1900
Under the law, it is an offence to have sexual intercourse with another person without consent in circumstances you know the other person does not consent to it.
Our highly experienced specialist defence lawyers can provide realistic and practical advice on your best options of fighting these serious allegations. We are familiar with the Judges, prosecution and court processes.
We have over two decades of combined experience in securing not guilty verdicts in court. Our team of senior lawyers have successfully fought to get these charges dropped early, and won countless sexual assault charges in court.
Our first and main focus is on getting charges dropped or downgraded early. Our senior lawyers will relentlessly work around the clock to achieve this in the same way we have successfully achieved it for others for many years.
Our expert defence lawyers have successfully won costs over the years- getting the prosecution to pay our clients legal costs. Nothing will go overlooked if you have a strong defence team by your side.
Your Options in Court
PLEADING NOT GUILTY
Our specialist defence lawyers are leaders in this profession with a proven track record of successfully proving their client’s innocence and getting charges dropped all together. They will advise you on the best and strongest defence(s) available to you.
Before you can be found guilty for this offence, the Police must prove beyond reasonable doubt that you:
- Had sexual intercourse with the victim, and
- The sexual intercourse occurred without the victim’s consent, and
- You knew that the victim did not consent
Defences to this charge
You are NOT GUILTY to this charge if:
- There was no sexual intercourse. This can be further clarified in some situations by the help of getting the result of DNA evidence to confirm that the alleged victim had no traces of your DNA on his or her body.
- The alleged victim consented to the sexual intercourse.
- You had reasonable grounds for believing that the alleged victim consented
- The intercourse was done for medical purposes
If you plead ‘guilty’ to sexual assault charges, the following information is critical in preparing your case to maximise your chances at the best possible outcome, with the most lenient possible punishment.
25% discount on punishment
The earlier you enter the plea of guilty, the more discount on the punishment you will receive by the Judge. This can be a discount of up to 25% which will mean a lighter punishment.
For this reason, it’s worthwhile getting accurate and realistic advice as early as possible from an experienced team of specialist sexual assault lawyers.
Good character references
Showing the Judge well written and structured good character references from certain people in your life can show your otherwise good character, the good you have done, your remorse and embarrassment and insight in what you did to allow the Judge to give you more leniency in the punishment.
Our specialist defence lawyers will guide you on who to obtain references from, they will also review and provide feedback on each one before handing it to the Judge.
Negotiate to drop charges
Our team of defence lawyers are well known and have an enormous amount of experience in successfully getting your charges either dropped or downgraded to a lesser serious charge. With this as our number one focus, it means that your charges can change to something more favourable to you, made possible through our team’s relentless approach in analysing all the evidence extremely carefully and pointing out all the holes in the police case. This can drag out the court process for a longer period, but has proven to be well worth it for our previous clients on countless occasions, avoiding the stress and cost of an in court trial.
Before the judge gives you a punishment, he or she will read the ‘police facts’ of your case. This is the police version of what occurred when you are alleged to have committed the offence. Our defence team have extensive experience in negotiating these facts with the police, with the sole purpose to make this document read more favourable to your case and portray your version of what occurred. The end result is a more lenient punishment, often achieved by our defence team by analysing the police evidence and picking the holes in their case.
Having a well drafted psychiatrist or psychologist report addressing the right issues to your case can make an enormous difference in getting the best possible result especially if the report diagnoses you with a mental illness or condition for the following reasons:
- If it diagnoses you with a mental illness, the Judge is allowed to then reduce your punishment. Especially if it shows you are now addressing the issue to get better.
- It is a great way to express your remorse, insight and explanation for your actions allowing the Judge to reduce the punishment further.
- It is a good way to express your perspective and circumstances of why you did what you did providing an explanation, not justification allowing the Judge to give more leniency.
A powerfully drafted, well written psychiatrist/psychologist report can significantly improve your outcome. Our specialist sexual assault lawyers use hand selected leading expert psychologist and psychiatrist who they have obtained many reports from in the past with exceptional results.
The maximum punishment for this offence is a term of imprisonment of up to 14 years. Courts generally do not give the maximum punishment. It is reserved for people who have repeatedly committed the same offences over and over, with no remorse, and other factors the court regards as aggravating.
The Judge has many other options of punishment to give you, and it only considers full time gaol as a last resort where there is no other option available.
Types of penalties
The following are all the options of punishment available to a Judge for you from least serious to the most:
- Section 10 Dismissal
- Conditional Release Order
- Community Correction Order
- Intensive Correction Order
- Full Time Imprisonment
The Judge’s role is to give you a fair punishment, something not too harsh, but something not too lenient. Our defence lawyers will thoroughly prepare and powerfully present your version to the Judge putting you in the best possible position at getting the best possible result. Their focus will be on getting your charges dropped or downgraded at an early stage.
What is sexual intercourse?
Sexual intercourse includes the following:
- Sexual Penetration of the victim’s genitalia. This includes penetration of a surgically constructed vagina or the anus of the victim by any part of your body or any object used by you.
- The introduction of any part of the penis into the victim’s mouth
- Cunnilingus, which is the practice of orally stimulating the victim’s genitals
- Throughout the years, past cases have defined sexual intercourse to include:
- Penetration of the lips
- Cunnilingus does not even require proof of any penetration, and includes licking or sucking of the genitalia (penis or vagina).
How the court determines whether you knew there was no consent?
The law considers that you knew that there was no consent if:
- You knew there was no consent, or
- You were ‘reckless’ as to whether the alleged victim consented
You are considered to be ‘reckless’ under the law in any one of the following situations:
1. You had intercourse not caring whether or not the alleged victim consented
2. You were aware that the alleged victim might not be consenting or possibly was not consenting
3. You didn’t even bring your attention to whether or not the alleged victim consented, treating it as an irrelevant factor
4. The consideration of whether or not you were reckless is determined by the Jury who focus on what was in your mind at the time
- You had no reasonable grounds for believing that the alleged victim consented
When the court considers whether you knew there was no consent, it looks at the circumstances of the case including the following:
- Steps you took to find out whether there was consent
- The court cannot take into account the alcohol or drugs the alleged victim took on his/her own free will
Can I still be guilty when the victim consents?
You will still be guilty of this offence even when the alleged victim consents to sexual intercourse with you, but only in any one of the following situations:
- The alleged victim does not have the capacity to consent. This can be because of the age or cognitive incapacity of the alleged victim.
- Alleged victim was asleep or not conscious and therefore does not have an opportunity to consent
- The alleged victim consents because of threats, force or terror
- The alleged victim was unlawfully detained
- The alleged victim was under a mistaken belief as to your identity
- The alleged victim was under a mistaken belief that he/she was married to you
- The alleged victim was under a mistaken belief that the sexual intercourse was for medical or hygienic purposes or any other mistaken belief about the nature of the act induced by fraudulent means
You may still be guilty of this offence even when the alleged victim consents to sexual intercourse, but only in any one of the following situations:
- The alleged victim was substantially intoxicated by alcohol or drugs
- The alleged victim was intimidated, coerced or threatened involving no threat of force
- The alleged victim had sexual intercourse because of the abuse of a position of authority or trust
What is the legal age to have sex?
Section 66C Crimes Act says that it is an offence to have sexual intercourse with a person who is under the age of 16 years.
Can I still be guilty where the victim does not resist the sexual intercourse?
Section 61HA (7) Crimes Act says that the alleged victim is not considered to consent to the sexual intercourse simply and only because he/she does not give any physical resistance .
However, the fact that there was no physical resistance is one of many things that go to proving your innocence in court. This combined with other circumstances of your case, which a specialist defence lawyer should correctly point out, may prove your innocence.
Can I still be guilty where I am married to the victim?
There is no presumption that the alleged victim consent’s simply because the two of you are married. However, a specialist criminal defence lawyer will accurately and carefully point out all other factors to prove your innocence in the best possible way catered to your particular case.
What if there is delay in the alleged victim’s complaint to police?
We have taken on and won hundreds of sexual assault cases where the alleged victim has made false complaints about our clients, years later.
The longer the delay, the more difficult it is for the police to prove you committed the offence. The Jury will generally place less weight of the alleged victim’s credibility, assisting your defence.
Our specialist defence team will carefully analyse the evidence and pick out any holes in the police’s evidence giving you the best chance at proving your innocence.
Can I use the alleged victim’s past sexual conduct in court?
Generally, evidence of the alleged victim’s sexual reputation and experience is not allowed to be revealed in court except in some situations.
The alleged victim’s sexual activity or sexual experience can be revealed in court in the following circumstances pursuant to section 293 Criminal Procedure Act 1986:
- The alleged victim’s sexual activity or experience occurred at the time or closely to the time of the alleged sexual assault, and, it forms part of a connected set of circumstances of the alleged offence.
- If the you and the alleged victim were in a relationship that was existing or recent at the time of the alleged sexual assault.
- If you deny ever having sexual intercourse with the alleged victim. The police can then try to produce evidence of DNA attempting to connect you to the alleged victim.