In all jurisdictions, it is an offence to have sexual intercourse with another person without the consent of that person. In New South Wales and the Australia Capital Territory, the offence is described as ‘sexual intercourse without consent’. In Queensland, South Australia, Tasmania and Victoria, the offence is described as ‘rape’.
In all jurisdictions, sexual intercourse is defined by one of the following elements:
- The penetration of the vagina (which includes a surgically constructed vagina), or anus of a person by the penis or any part of the body of another person or by an object, except where that penetration is carried out by a proper medical purpose;
- The introduction of any part of the penis into the mount of another person;
- Cunnilingus; or
- The continuation of sexual intercourse as defined after the withdrawal of consent.
In most jurisdictions, the slightest degree of penetration is enough to constitute sexual intercourse. In relation to cunnilingus, actual penetration of the vagina with the tongue is not necessary. The intercourse does not need to have been accompanied by sexual motivation.
In most jurisdictions, consent is defined as a free and voluntary agreement by a person with the cognitive capacity to give the consent.
Factors affecting consent
Factors that may affect the consent may include situations where consent is obtained:
- by force or violence or the fear of force, threat or intimidation;
- by deception or fraudulent means;
- by the abuse of the other person of his or her position of authority over, or professional or other trust in relation to, the person;
- by the person’s physical helplessness, age or mental incapacity to understand the nature of the act in relation to which the consent is given;
- as a result of unlawful detention;
- when the person is asleep, unconscious or intoxicated;
- due to mistake as to the sexual nature of the act or the identity of the person; or
- due to a mistaken belief that the act is for medical, health or hygienic purposes.
Interestingly, in some jurisdictions, consent induced by a promise of a benefit or a gift will generally be deemed as consent, even where the promise of that benefit or a gift is not delivered. This is distinguished from coercion and self-manipulation or as a result of a threat. Moreover, any person who by any false pretence, false representation, or other fraudulent means procure another person to have sexual assault may be found guilty of an offence.
There is no consent if the person procures another person to have sexual intercourse by drugs or intoxication.
There is no consent if a person submits to the act because of psychological oppression or abuse of power or by taking advantage of a coercive environment.
Withdrawal of Consent
Consent that was freely given may be withdrawn at any time, even in the midst of sexual intercourse.
Mistake as to consent
Mistake as to consent to sexual intercourse may be raised as a defence by the accused. However, the mistaken belief must be honest, but need not be reasonable. Moreover, in considering whether or not an alleged belief that the person was consenting was genuinely held, an accused, for instance, is deemed to know there was no consent if they have no reasonable grounds to believe that the other person consented.
A mistake may not be honest if the accused was in a self-induced intoxication.
First Element of Sexual Assault – Mental Element (Mens Rea)
The prosecution must prove beyond reasonable doubt that the accused knew that the person was not consenting to the sexual intercourse or was reckless as to whether there was consent. Such recklessness may be reached if the accused was aware of a possibility that the person was not consenting or failed to give any consideration or thought to the question of consent. This may also include reckless indifference.
Second Element of Sexual Assault – Physical assault (Actus Reus)
The second element of sexual assault is the physical aspect, whereby the prosecution must prove, beyond reasonable doubt that the accused has physically assaulted the victim. This does not include medical examination or involuntary acts.
The types of penalties depends on whether you are charged under the appropriate jurisdiction and the circumstances of each offence and may vary from 10 years to life imprisonment.