The offence of Sexual Assault is contained in section 61I of the Crimes Act 1900 which states:
Any person who has sexual intercourse with another person 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.
For the purposes of the act, sexual intercourse includes penetration of the vagina or anus of a person using either a body part or other object, and also includes oral sex.
A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse (s61HA).
According to section 61HA(4) of the Act, there are certain circumstances where a person cannot be taken to have consented to sexual intercourse. This includes:
a) If the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or
b) If the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or
c) If the person consents to the sexual intercourse because of threats or force of terror, or
d) If the person consents to the sexual intercourse because the person is unlawfully detained.
In order to be convicted of the offence of sexual assault, the prosecution must prove the following beyond reasonable doubt:
- You had sexual intercourse with another person
- That person did not consent
- You knew that the person did not consent
In regards to knowledge, where the person is reckless to whether the other person consents or has no reasonable grounds for believing the other person consents, the accused is taken to have had knowledge.