Section 61J of the Crimes Act 1900 (NSW) makes it a criminal offence to commit aggravated sexual assault. The maximum penalty for this offence is 20 years imprisonment.
In order to be convicted of this offence, the prosecution must prove beyond reasonable doubt that:
- You had sexual intercourse with a person;
- The sexual intercourse was committed without the consent of that person;
- You were aware that there was no consent by the other person or you did not give regard to whether consent was given or not;
- The sexual intercourse was in circumstances of aggravation. Circumstances of aggravation means that:
a) At the time of, or immediately before or after, the commission of the offence, you intentionally or recklessly inflicted actual bodily harm on the alleged victim or any other person who is present or nearby; or
b) At the time of, or immediately before or after, the commission of the offence, you threatened to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument; or
c) You were in the company of another person or persons; or
d) The alleged victim is under the age of 16 years; or
e) The alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender; or
f) The alleged victim has a serious physical disability; or
g) The alleged victim has a cognitive impairment; or
h) The alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence; or
i) You deprived the alleged victim of his or her liberty for a period before or after the commission of the offence.
If any of the above elements are not proven beyond reasonable doubt then you will not be found guilty of murder.
However, if the above factors are proven beyond reasonable doubt, the charge can be defeated and you will be found not guilty if any of the following defences can be established:
- Consent by the victim
Should an act of aggravated sexual assault be committed in company of another person or person(s), the maximum penalty increases to imprisonment for life.
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