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Sexual Assault and Child Abuse

Sexual assault and child abuse

The ODPP prosecutes a wide variety of sexual assault offences, including sexual assault, historical sexual assault and child sexual assault. The ODPP also prosecutes criminal conduct of a sexual nature including sexual touching, sexual acts towards a victim or inciting sexual acts from a victim, and grooming of children.  

The vast majority of these matters are prosecuted in the District Court, but in appropriate cases, most frequently where the offending conduct is at the lower end of objective seriousness, they are also prosecuted in the Local Court and the Children’s Court.  

Adult sexual assault 

Sexual assault committed between two adults is a prevalent offence that is prosecuted by the ODPP.  

At law, sexual assault is the act of having sexual intercourse without the consent of the victim. Sexual intercourse is legally defined as:  

  • penetration of the genitalia of a female person by any part of the body of another person, or an object manipulated by another person; or  
  • penetration of the anus of any person by any part of the body of another person, or an object manipulated by another person; or 
  • insertion of the penis of a person into the mouth of another person 
  • cunnilingus. 

To prosecute this crime, the evidence must also establish that the accused person knew the victim was not consenting to the sexual intercourse. Legally this can be proven on three different bases:  

  • the accused had actual knowledge that the victim was not consenting; or 
  • the accused was reckless as to whether the victim was consenting. This could arise where the accused person failed to even consider whether the victim was consenting but proceeded when it would have been obvious that the victim was not consenting. Alternatively, if could also mean that the accused realised that there was a possibility that the victim was not consenting but proceeded anyway; or  
  • the accused had no reasonable grounds for believing that the victim was consenting.  

The law also recognizes that in some circumstances a victim cannot consent.
For example 

  •  the victim was unconscious or asleep; or
  •  the consent was obtained by a threat; or 
  •  the consent was obtained due to the victim being unlawfully detained; or
  •  the victim did not have the cognitive capacity to consent. 

In certain cases, where the sexual assault is accompanied by other aggravating factors, the accused person will face a more serious type of sexual assault charge and be subject to a higher maximum penalty. An example of what these aggravating factors are include: 

  • the sexual assault is committed in company 
  • immediately before, during, or after the sexual assault, the accused assaults the victim causing actual bodily harm
  • immediately before, during, or after the sexual assault the accused threatens to inflict grievous bodily harm on the victim or other persons present 
  • the victim has a cognitive impairment or serious physical disability.  

Consent

On 23 November 2021, the NSW Parliament passed the Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021. This legislation enacted reforms that moved the criminal law towards an affirmative model of consent. Practically this means that in order for an accused person to form a belief that the complainant is consenting, the accused person must take steps to say or do something to ascertain that the complainant is consenting. Information regarding the amendments can be found here: https://www.dcj.nsw.gov.au/justice/proposed-reform-of-sexual-consent-laws.html

Child Sexual Assault 

In circumstances where an adult sexually assaults a victim under 16 years of age at the time of the assault, the ODPP will generally prosecute the matters under charges that have been specifically created for that age category.  

The definition of sexual intercourse remains the same as that for adult sexual assault. However it is important to note that unlike in adult sexual assault offences, the prosecution is not required to prove that the victim did not the consent. Ultimately this critical difference protects children from grooming by adults, and recognises that it is always a criminal offence for an adult to have sexual intercourse with children, even if the child appears to consent to that conduct at the time.   

In certain cases, where the sexual assault is accompanied by other aggravating factors, the accused person will face a more serious type of sexual assault charge and be subject to a higher maximum penalty. An example of what these aggravating factors are include: 

  • the sexual assault is committed in company 
  • immediately before, during, or after the sexual assault, the accused assaults the victim causing actual bodily harm  
  • immediately before, during, or after the sexual assault the accused threatens to inflict grievous bodily harm on the victim or other persons present 
  • the accused took advantage of the of the victim being under the influence of drugs or alcohol 
  • the victim has a cognitive impairment or serious physical disability.  

As a general rule, the law considers sexual assault against children under the age of 10 years as the most serious type of offending, followed by sexual assaults against children between the ages of 10 and 14 years, and followed by sexual assaults against children between the age of 14 and 16 years.

Historical Sexual Assault 

The ODPP prosecutes a large number of historical sexual assault matters. These are sexual assaults or sexual conduct which occurred a significant period of time before the accused is charged and brought before the Court.

Examples of this category of prosecution include cases from the 1980’s and 1990’s that came to light following the Royal Commission into Institutional Responses to Child Sexual Abuse. There is no time limitation to report a sexual assault to police.   

In historical sexual assault cases the ODPP prosecutes the matters according to the criminal legislation that existed at the time the assault occurred. Accordingly, the law and the penalties involved in these cases varies significantly and does not always reflect the law in relation to sexual assault as it is understood today.  

Other sexual offending  

The ODPP frequently prosecutes sexual conduct against adults and children that does not meet the definition of sexual intercourse. This most commonly includes the prosecution of serious examples of sexual touching (for example touching of a person’s breast or genitalia without consent) or sexual acts (inciting a victim to touch an accused’s genitalia without consent).  

Less common sexual offences prosecuted also include such acts as procuring or grooming a child for sexual activity, sexual servitude and producing, disseminating or possessing child abuse material.   

Sentencing

Sentencing for sexual assault offences differs widely depending on the type of sexual assault charged and various other circumstances.

Matters that are frequently relevant include the:  

  • type of sexual act involved  
  • duration of the assault 
  • circumstances giving rise to the offending conduct 
  • number of victims involved  
  • existence of any aggravating factors  
  • previous criminal history of the offender, particularly if there is a history of sexual offending.  

In matters of child sexual assault, the Court would generally also take into account features such as:  

  • the age of the victim 
  • the age difference between the offender and victim 
  • the nature and duration of any grooming 
  • an abuse of position of authority 
  • a breach of trust between the offender and victim.