Content warning: This article discusses sexual assault, which can be a triggering topic for some readers. If you or someone you know has been affected by sexual assault, please seek help. It’s a topic that can be difficult to discuss, but one that cannot be ignored.
In NSW, the Crimes Act 1900 outlines the laws and penalties surrounding this heinous crime. From defining what constitutes sexual assault to outlining the various types of offences and their corresponding punishments, this Act serves as a crucial tool in the fight against sexual violence.
In this article, we will take a closer look at sections 61I to 61KB of the Act and its role in combating sexual assault in NSW, Australia.
Combating Sexual Assault in Australia
The Crimes Act 1900 (NSW) is a piece of legislation that:
- defines and criminalises a range of sexual offences, including sexual assault.
- sets out the penalties for these offences, which can range from imprisonment to fines.
The Crimes Act 1900 plays an important role in combating this crime in Australia. It provides a legal framework for prosecuting offenders and holding them accountable for their actions. It also sends a message to the community that such serious crimes will not be tolerated.
Section 61I: Sexual Assault
Section 61I provides for the circumstances that qualify as an act of sexual assault. These are the following:
- Any person had sexual intercourse with another person
- Such act was without the consent of the other person
- The offender knows that the other person does not consent to the sexual intercourse
The commission of such an act makes the offender liable to imprisonment for 14 years.
Section 61J: Aggravated Sexual Assault
Section 61J stipulates the aggravating circumstances of the crime of sexual assault. The circumstances of aggravation are the following:
- At the time of, or immediately before or after, the commission of the offence, the accused person
- intentionally or recklessly inflicts actual bodily harm on the complainant or any other person who is present or nearby.
- threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument.
- threatens to inflict grievous bodily harm or wounding on the complainant or any other person who is present or nearby.
- The accused person is in the company of another person or persons.
- The complainant is under the age of 16 years.
- The complainant is, whether generally or at the time of the commission of the offence, under the authority of the accused person.
- The complainant has a serious physical disability.
- The complainant has a cognitive impairment.
- The accused person breaks and enters into any dwelling house or other building with the intention of committing the offence or any other serious indictable offence.
- The accused person deprives the complainant of his or her liberty for a period before or after the commission of the offence.
A person who is guilty of an aggravated sexual assault is liable to imprisonment for 20 years.
Section 61JA: Aggravated Sexual Assault in Company
In connection with section 61J, 61JA provides for the circumstances and liability when the aggravated sexual assault is committed in company of another person. The rules are the following:
- A person who commits the crime, and is in company of another person or persons and who at the time of, or immediately before or after, the commission of the offence:
- intentionally or recklessly inflicts actual bodily harm on the complainant or any other person who is present or nearby
- threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument
- Deprives the complainant of his or her liberty for a period before or after the commission of the offence.
- If the offender is found guilty of aggravated sexual assault in company, such offender is liable to imprisonment for life.
Section 61K: Assault with Intent to Have Sexual Intercourse
This section provides for the circumstances that qualify an act to be an assault with intent to have sexual intercourse with another person. The circumstances are the following:
- The offender intends to have sexual intercourse with another person.
- The offender intentionally or recklessly inflicts actual bodily harm on another person or a third person who is present or nearby.
- The offender threatens to inflict actual bodily harm on another person, or a third person who is present by means of an offensive weapon or instrument.
The offender, who is found guilty of this offence, is liable to imprisonment for 20 years.
Section 61KA: Accused Person Married to Complainant
This section stipulates that marriage is not a defence for the crime of sexual assault. Thus, an offender can be convicted even though one is married to its victim. It provides that the fact that the offender is married to the person:
- upon whom an offence of sexual assault alleged to have been committed
- upon whom an offence of is alleged to have been attempted.
Section 61KB: Circumstances of Certain Sexual Offences to be Considered in Passing Sentence
Section 61KB provides for the rules if an offender commits both an offence under section 61I, 61J, 61JA, and 61K, and is convicted of such. The circumstances are as follows:
- Sexual assault and sexual assault with intent to have sexual intercourse (section 61I and 61K)
- Aggravated sexual assault and sexual assault with intent to have sexual intercourse (section 61J and 61K)
- Aggravated sexual assault in company and sexual assault with intent to have sexual intercourse (section 61JA and 61K)
In effect, if these offences are committed, whether concurrently or at different times, the judge sentencing the person for the two convictions— or the later of the two convictions—must consider this fact when deciding on the sentence if it appears that the two offences were largely prompted by the same set of circumstances.
Need Legal Advice?
If you have been sexually assaulted, it is important to seek legal advice from a lawyer who specialises in sexual assault cases. A lawyer can help you to understand your legal rights and options and can represent you in court if you decide to take legal action.
A lawyer can provide a number of services to help survivors, including:
- Legal advice: A lawyer can advise survivors on their legal rights and options, including whether to report the assault to the police, file a civil lawsuit, or seek other legal remedies.
- Representation: A lawyer can represent parties in court, whether in a criminal case or a civil lawsuit.
- Emotional support: A lawyer can provide emotional support to help parties navigate the legal process and cope with the emotional aftermath of the assault.
- Referrals: A lawyer can refer parties to other professionals who can provide support, such as therapists, counsellors, or advocates.
If you need legal advice, don’t hesitate to reach out to our friendly staff and lawyers at JB Solicitors today. Contact us here.
