Criminal Law

Sexual Offences

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Sexual offences in NSW

In NSW there are a broad range of sexual offences, varying from minor offences to serious sexual assault cases. Some common offences are listed below.

Sexual Assault – s61I

The meaning of sexual intercourse is the penetration to any extent of the genitalia or anus of a person by:

  • any part of the body of another person, or
  • any object manipulated by another person, or
  • the introduction of any part of the genitalia of a person into the mouth of another person,
  • or the application of the mouth or tongue to the female genitalia, or
  • the continuation of sexual intercourse.

In Australia the legal age of sexual consent is 16 and it is not illegal to have sexual intercourse, when each party consents. It is a crime when there is no consent.

A person "consents" to a sexual activity if, the person freely and voluntarily agrees. This can be through words or conduct, and a person may withdraw consent to a sexual activity at any time.

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.

If you are being investigated or have been charged by police, it is crucial to get legal advice immediately as it will substantially improve your chances of getting the best possible outcome for your case. A criminal conviction for sexual intercourse without consent, will very rarely end in a sentence other than Jail.

Sexual Touching – s61KC

The offence is committed when a person touches a person sexually without their consent, it depends on the part of the body touched and includes for example touching the genital area of another person or stroking your genital area against another person’s body. The maximum penalty for sexual touching is 5 years in prison.

Sexual Act – s61KE

A sexual act means an act other than sexual touching carried out in circumstances where a reasonable person would consider the act to be sexual. Matters taken into account which consider an act to be sexual include:

  • whether the area of the body involved in the act is a person's genital area, anal area or breasts
  • whether or not the breasts are sexually developed, and
  • regardless of the person's gender or sex, or
  • whether the person carrying out the act does so for the purpose of obtaining sexual arousal or sexual gratification, or
  • whether any other aspect of the act (including the circumstances in which it is carried out) makes it sexual.
  • An act carried out solely for proper medical or hygienic purposes is not a"sexual act"

The maximum penalty is 18 months in prison.

Filming a person’s private parts (also known as up-skirting) – s91L

A person’s private parts means genital area or anal area, whether bare or covered by underwear, or the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.

The offence of filming a person’s private parts includes:

  • A person who, for sexual arousal or gratification for yourself or for someone,
  • films another person's private parts, in circumstances in which,
  • a reasonable person would reasonably expect the person's private parts could not be filmed
  • without the consent of the person being filmed to being filmed for that purpose, and
  • knowing that the person being filmed does not consent to being filmed for that purpose, is guilty of an offence.

The maximum penalty is $11,000 or imprisonment for 2 years, or both.

Distributing an Intimate Image Without Consent (also known as Revenge Porn) – s91Q

The offence is committed when:

  • A person intentionally distributes an intimate image of another person
  • without the consent of the person, and
  • knowing the person did not consent to the distribution or being reckless as to whether the person consented to the distribution, is guilty of an offence.

‘Distribute’ means to send, supply, exhibit, convey or communicate to another person, or to make available for viewing or access by another person, whether in person or by electronic, digital or any other means.

An ‘intimate image’ includes an image of a person’s private parts, or of a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy, or an image that has been altered to appear to show the same..

‘Private parts’ are a person’s genital area or anal area, whether bare or covered by underwear, or the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.

A person is engaged in a ‘private act’ if: He or she is in a state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and the circumstances are such that a reasonable person would reasonably expect to be afforded privacy.

The maximum penalty is $11,000 or imprisonment for 3 years, or both.

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