Criminal law
Sexual assault charges in NSW
Since June 2022 the law of consent in New South Wales has worked differently. The question is no longer only what the complainant did. It is what you said or did to find out whether they consented, and a belief in consent formed without doing anything to check is not a reasonable one. That change has moved the centre of gravity in these trials, and it is the reason advice given before 2022 is no longer reliable.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Our lawyers include former prosecutors. We appear in Local Courts across New South Wales and in the District Court, and we can attend a police station.
On this page
The law of consent Sexual assault offences Before you are charged How these cases run Defences Consequences beyond sentence Other sexual offences Sentencing options Common questions
The law of consent, as it now stands
The consent provisions were rewritten by reforms that commenced on 1 June 2022. They apply to sexual assault, sexual touching and sexual act offences alleged to have been committed on or after that date. For anything alleged to have happened before it, the earlier law applies, which matters a great deal in historical matters.
What consent means
- It is free and voluntary agreement, at the time of the activity. Not before it and not after it. Agreement given earlier and withdrawn is no agreement at all
- It is specific. Consent to one sexual activity is not consent to another. The legislation expressly contemplates that a person may consent to activity with a condom without consenting to activity without one
- It can be withdrawn at any time, by words or conduct, and activity continuing after that point is not consensual
- Silence is not consent. A person who does not say or do anything to communicate consent does not consent, and the absence of physical or verbal resistance is not agreement
The legislation also sets out a list of circumstances in which a person does not consent. It is not exhaustive. It includes a lack of capacity, being so affected by alcohol or another drug as to be incapable of consenting, being unconscious or asleep, participating because of force, fear, coercion or intimidation, and consent obtained by fraudulent inducement or by a mistaken belief about the identity of the other person or the nature of the activity.
The affirmative requirement, and why it changed everything. A belief in consent is not reasonable if you did not, within a reasonable time before or at the time of the activity, say or do something to find out whether the other person consented. There is a narrow exception where a cognitive impairment or a clinically significant mental health impairment was a substantial cause of your not doing so. Self-induced intoxication cannot be taken into account at all. The practical effect is that the trial focus has shifted from the complainant’s conduct to yours.
What the prosecution must prove about your state of mind
Three routes are available to it. That you actually knew the complainant did not consent. That you were reckless as to whether they consented. Or that you believed they consented but that the belief was not reasonable in the circumstances. The third is where most contested trials are now decided.
The offences
Sexual assault is sexual intercourse without consent, knowing the other person does not consent. Sexual intercourse is defined broadly and is not limited to what people commonly assume. New South Wales does not use the word rape as a legal term.
| Offence | Maximum penalty | Standard non-parole period |
|---|---|---|
| Sexual assault | 14 years | 7 years |
| Aggravated sexual assault | 20 years | 10 years |
| Aggravated sexual assault in company | Life imprisonment | 15 years |
| Assault with intent to have sexual intercourse | 20 years |
The circumstances of aggravation are set out exhaustively. They include the infliction of actual bodily harm, threats of harm with an offensive weapon, being in company, the complainant being under 16, the complainant being under your authority, the complainant having a serious physical disability or a cognitive impairment, breaking and entering with intent, and depriving the complainant of their liberty.
Standard non-parole periods are not maximums and they are not starting points. They are a reference point representing Parliament’s view of the non-parole period for an offence in the middle of the range of objective seriousness. Where one applies, the sentencing exercise changes shape, and where an offence sits in the range becomes the central question. It is also why an intensive correction order is not available for many of these offences at all.
Before you are charged
Most people in these matters come to a lawyer at the wrong point, which is after the interview. Sexual offence allegations are usually investigated for weeks or months before any charge is laid, and the investigation almost always includes an invitation to give your version of events.
- You are not obliged to participate in an interview. Beyond providing your name and address, you do not have to answer questions, and an invitation framed as a chance to clear things up is still an interview
- What you say becomes the case. Under the current law, the prosecution has to prove what you said or did to ascertain consent. Your own account is frequently the best evidence available to it on that question
- Preserve your material now. Messages, call records, social media, dating app conversations, rideshare and transaction records, and the names of anyone who saw either of you that night. This material is deleted or overwritten quickly, and it is often what resolves the matter
- Do not contact the complainant, directly or through anyone else. It will be treated as an attempt to interfere with a witness and it can produce further charges and an apprehended violence order
- An AVO frequently comes first. A provisional order can be made before any charge exists, and how it is dealt with affects the criminal matter. More on defending an AVO
Getting advice at the investigation stage is the single most useful thing a person can do in one of these matters, and it is the stage most people skip.
How these matters run
- Bail. Serious sexual offences are show cause offences, meaning the onus falls on you to satisfy the court that your continued detention is not justified before the ordinary considerations are even reached
- Court. Sexual assault offences are strictly indictable and are finalised in the District Court. The Local Court deals with the committal process, not the trial
- The complainant’s evidence. Special procedures apply. Evidence can be given by closed circuit television or behind a screen, the court can be closed, and in some cases evidence is pre-recorded. There are also statutory limits on questioning a complainant about their sexual experience
- Counselling records. A privilege protects communications made by a complainant to a counsellor. Access requires an application and it is not readily granted
- Jury directions. A suite of directions about consent, delay in complaint, and differences in an account is now given as a matter of course, and they are directed at correcting assumptions that used to work in an accused person’s favour
- Publication. A complainant’s identity is protected by law. Yours generally is not
These are long matters. A contested sexual assault charge routinely takes eighteen months to two years from charge to trial, and the process itself is a significant part of the burden.
Defences and issues
Consent
The complainant freely and voluntarily agreed at the time. This remains the central issue in most of these matters, and under the current law the evidence that matters most is what was communicated, by both people, and how.
Reasonable belief in consent
You believed there was consent and, critically, you said or did something within a reasonable time to find out. What those steps were, and whether there is any record of them, is now the most important factual question in a contested trial.
The intercourse did not occur
Identification, alibi, and the forensic and communications evidence. A complete denial is a different case to run from a consent case and the two cannot be run half-heartedly together.
Reliability of the account
Not an attack on a complainant’s character, which the law rightly restricts, but a proper examination of the surrounding evidence: messages, timing, movements, and what was said to others and when.
The aggravating circumstance is not made out
The difference between 14 years and 20, and between 20 and life, is a single feature. Whether it is established on the evidence is often genuinely arguable.
Mental health and cognitive impairment
Relevant to the narrow statutory exception to the affirmative requirement, and separately to fitness, to a defence, and to sentence. It needs expert evidence obtained early, not on the eve of hearing.
Self-induced intoxication is not a defence and cannot be taken into account in assessing whether a belief in consent was reasonable.
Consequences beyond the sentence
These begin before any finding of guilt and continue long after a sentence is served.
- The child protection register, where the offence is a registrable one. The obligations are extensive and breaching them is a separate offence. More on registration
- Working with Children Check. A charge alone can trigger an interim bar. A conviction for a disqualifying offence ends eligibility
- Professional registration. Health practitioners, teachers, lawyers and others face regulatory action that runs in parallel with the criminal matter and on a different standard of proof
- Employment. Suspension frequently follows the charge rather than the conviction
- Visas and travel. Character requirements apply and some countries refuse entry outright
- Intensive correction orders are unavailable for many of these offences, which narrows the sentencing options considerably
Because these consequences attach on charge rather than on conviction, the way the early stages are handled matters even in matters that are ultimately resolved in your favour.
Sentencing options in NSW
Get advice before pleading guilty to anything. The court can impose any of the following, though the more serious sexual offences carry standard non-parole periods and several of the community-based options are not available for them.
Dismissal without conviction
No conviction recorded and no further penalty. Available only at the lowest end of this area and not at all for the serious offences.
Conditional release order
A bond, available with or without a conviction, supervised or unsupervised. The standard conditions are to commit no further offence and to appear if called on, and further conditions can include rehabilitation, curfews and non-association or place restriction orders.
Conviction with no other penalty
A conviction is recorded but nothing further is imposed.
Fine
Can be imposed alone or with a bond, and is a conviction. Usually payable within 28 days, though the registry can extend the time or arrange a plan.
Community correction order
More serious than a conditional release order, for up to three years, supervised or unsupervised, with conditions that can include community service, curfews, abstinence and rehabilitation.
Intensive correction order
A sentence of imprisonment served in the community under strict supervision. It is expressly unavailable for a range of sexual offences, which is one of the most consequential features of sentencing in this area.
Full-time imprisonment is the usual outcome for a sexual assault conviction. Where a plea is appropriate, entering it early attracts a substantial discount that reduces as the matter progresses, and preparation of the subjective case, including psychological assessment where relevant, takes months rather than weeks.
Common questions
Police have contacted me but I have not been charged. What should I do?
Get advice before you speak to them. You are not obliged to participate in an interview, and in these matters your own account is frequently the strongest evidence the prosecution ends up with on the question of what you did to ascertain consent. At the same time, preserve every message, call record and app conversation from around the relevant period, because that material disappears quickly and is often what helps you.
She did not say no. Isn’t that enough?
No, and this is the change most people have not caught up with. Silence is not consent, and the absence of resistance is not agreement. A belief that there was consent is not reasonable unless you said or did something to find out. What those steps were is now the central question in most of these trials.
We were both drunk.
Those two facts operate very differently. A person so affected by alcohol as to be incapable of consenting does not consent. Your own self-induced intoxication cannot be taken into account at all when the court assesses whether your belief in consent was reasonable. It is not a mitigating circumstance in the way people assume.
The allegation is about something that happened years ago.
There is no limitation period for these offences, so a prosecution can be brought decades later. Which law applies is the law as it stood at the time of the alleged conduct, so the 2022 consent reforms do not apply to older allegations. Historical matters raise particular issues about delay and the availability of evidence, and they are run differently.
Can the complainant withdraw the complaint?
A complainant cannot withdraw a criminal charge. Once police have laid it, the decision to continue belongs to the prosecution, and it frequently continues without the complainant’s support. What a complainant says about their wishes can be relevant, but it does not end the matter.
Will my name be published?
A complainant’s identity is protected by law. An accused person’s generally is not, and these matters are reported. There are limited circumstances in which a non-publication order can be sought and they are worth raising early rather than after the first mention.
Will I go to gaol?
For a sexual assault conviction, full-time imprisonment is the usual outcome, and standard non-parole periods apply to the more serious offences. We will tell you plainly where a matter sits rather than what would be comfortable to hear. The lower offences in this area have a much wider range of outcomes.
What should I bring to a first appointment?
Any court attendance notice, the police fact sheet, any bail conditions, any AVO, and any letter or message from police. Bring your phone and any device with relevant messages on it, and do not delete anything. If you have none of it, come anyway.
The most important call is the one before the interview
These matters are investigated for months before a charge is laid, and the account given at the police station usually becomes the case. If police have contacted you, speak to us first.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. We appear in Local Courts across New South Wales and in the District Court. Courts we appear in.