What is sexual assault?
If you have been charged with sexual assault, the prosecution must prove:
1. That you had sexual intercourse with another person (the complainant).
Sexual intercourse is defined in s. 61HA of the Crimes Act 1900 (NSW) as penetration to any extent of the genitalia (including a surgically constructed vagina) of a female or the anus of any person. Sexual intercourse includes cunnilingus, fellatio or continuing to have sexual intercourse (when the other person does not consent to the continuation of sexual intercourse).
2. That the complainant did not consent to the sexual intercourse.
A person consents, generally, if that person freely and voluntarily agrees to the sexual activity. The law provides that a person does not consent if the person does not have the capacity to consent because of age or cognitive incapacity, or the person is unconscious or asleep, or because the person consents because of threats or force, or because the person consents because the person is unlawfully detained.
The law also says that person does not consent to sexual activity if the person consents to the sexual activity while substantially intoxicated. Whether a person is substantially intoxicated regularly arise in sexual assault matters. The prosecution often relies on complex expert evidence in proving that the alleged victim was substantially intoxicated.
3. That you knew the complainant was not consenting, were reckless to the lack of consent and the sexual intercourse, or you had no reasonable grounds for believing that the complainant consents to the sexual intercourse.
Hiring an experienced sexual assault lawyer
If you are facing sexual assault charges, it is extremely important that your hire an experienced sexual assault lawyer to handle your case. There is a detailed and specific body of law that governs sexual assault offences. For example, evidence relating to the complainant’s sexual experience or reputation is generally inadmissible unless an exception applies. Further, an accused person cannot have access to communications between the complainant and his, her or their psychologist or counsellor unless certain legal requirements are established. Sometimes obtaining this evidence is vital. Hayden Woolf of Woolf Associates Solicitors, is an experience sexual assault defence lawyer with thorough knowledge of this area of law.
The different forms of sexual assault
There are different forms of sexual assault including:
- Aggravated sexual assault.
- Aggravated sexual assault in company.
Sexual assault defence?
Most cases come down to whether the prosecution can prove that the complainant did not consent, or whether the accused knew the complainant was not consenting. However, there are many strategies an experienced sexual assault lawyer can employ to assist in your defence.
The author is an experienced sexual assault lawyer who has written several articles on different forms of sexual assault. To know more, visit https://www.woolf.com.au/sexual-assault
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