Sexual Assault Lawyers

Hamilton Janke Lawyers are experienced criminal defence lawyers with vast experience defending individuals accused of sexual assault offences. At Hamilton Janke Lawyers, we understand that being charged with a sexual offence can be overwhelming and stressful; rest assured, our experienced legal team will be there for you every step of the way. We are available 24/7 with expert legal advice, so contact us now to speak with an experienced lawyer for your case.

Defining What Is Sexual Assault

A sexual or indecent assault is the deliberate and unlawful touching of another person with any part of the body or with anything else. Under section 61I of the Crimes Act 1900, sexual assault occurs when a person has sexual intercourse with another person without that person’s consent, knowing that the other person is not consenting.

Sexual Assault or Sexual Intercourse without Consent

Under the Crimes Act 1900 (NSW), sexual intercourse is outlined as either genital penetration by a person’s body parts, penetration of a person’s genitals by objects manipulated by another person, or cases of oral sex performed on either a male or female.

Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent will be found guilty of this offence.

Those found guilty of sexual assault are liable to a maximum sentence of 14 years imprisonment.

Aggravated Sexual Assault

If the assault is committed under circumstances of “aggravation,” the maximum penalty is 20 years imprisonment. In order to be found guilty of ‘aggravated sexual assault’ at least one circumstance of aggravation must be proven. 

As outlined in the section. 61J of the Crimes Act 1900, these circumstances of aggravation include: 

  • The alleged victim is less than 16 years of age
  • Actual bodily harm was caused to the alleged victim
  • Actual bodily harm is threatened with an offensive weapon to the alleged victim or another person
  • The alleged victim is under the offender’s authority
  • The alleged victim has a serious physical disability
  • The alleged victim has a cognitive impairment
  • Breaking and entering to commit the offence
  • The alleged victim is deprived of their liberty

It is also an aggravating factor to have sexual intercourse with another person without consent when in company of another person/persons. If found guilty of this offence, the maximum penalty is imprisonment for life.

Sexual Touching

Under section. 61KC of the Crimes Act 1900 (NSW) sexual touching occurs when the defendent, without the consent of the victim, does any of the following: 

  • Sexually touches the alleged victim 
  • Incites the alleged victim to sexually touch the alleged offender, or

Iincites a third person to sexually touch the alleged victim, or

  • Incites the alleged victim to sexually touch a third person

The offence of ‘sexual touching’ is outlined within the Crimes Act as touching another person: 

  • With any part of the body of with anything else, or
  • Through anything, including anything worn by the person doing the touching or by the person being touched, in circumstances where a reasonable person would consider the touching to be sexual

If found guilty of this offence, the accused is liable to a maximum sentence of 5 years imprisonment. 

When committed under circumstances of aggravation, the offence carries a maximum penalty of 7 years imprisonment. These circumstances include: 

  • If the offence is committed in the company of another person/persons 
  • The victim is under the offender’s authority 
  • The victim has a serious physical disability 
  • The victim has a cognitive impairment

Sexual Act

Under the Crimes Act 1900 (NSW) a sexual act is an act (other than sexual touching) carried out in circumstances where a reasonable person would consider the act to be sexual. This may include encouraging or forcing someone to touch themselves in a sexual way.

If found guilty of this offence the maximum penalty is 18 months imprisonment. 


The same circumstances of ‘aggravation’ for sexual touching apply and the maximum penalty is increased to 3 years imprisonment.

In determining whether the act is sexual or not, the Court considers factors, including:

  • Where the person was allegedly touched
  • The alleged offender’s intention for touching
  • Whether any aspects of the act make it sexual


61HA defines consent to mean the person freely and voluntarily agrees to sexual activity.

In other words, consent is an agreement between participants to engage in sexual activity that should be clearly and freely communicated, such as a verbal and/or affirmative expression of consent. The 2021 amendment to the Crimes Act 1900 prescribes that a person does not consent to a sexual activity unless they actively said or did something to communicate this consent. Additionally, an accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent. 

Section. 61HA outlines circumstances in which the law outlines the victim was unable the consent, including: 

  • that they did not have the capacity to consent, including because of age or cognitive incapacity; or
  • that they did not have the opportunity to consent because they were unconscious or asleep; or
  • that they or another person were subject to threats of force or terror; or
  • that consent was obtained because the person was unlawfully detained; or
  • that consent was obtained through mistake as to identity, mistake as to marriage or mistake as to purpose (such as the purpose of medical examination).

Is it assault if you don't say no?

Under the new NSW legislation, consent requires an active confirmation, therefore simply not saying “no” to sexual intercourse, touching or a sexual act, does not mean the person consents and therefore can be classified as assault.

Additionally, a person can freely withdraw consent at any time, and any sexual activity that occurs after this time has occurred without consent. Further, consent from a person to a particular sexual activity is not, by reason only of that fact, to be presumed to have consented to any other sexual activity. 

The amendments made to NSW legislation regarding consent, under the Affirmative Consent Bill came into effect following the failure of the law to protect victims who did not consent to sexual activity however didn’t verbally say “no”. This was highlighted in the trial of R v Lazarus [2017] NSWCCA 279, where the accused was found not guilty of the offence regardless of the jury accepting that the victim did not consent.

Sexual Assault Law

Division 10 of the Crimes Act 1900 (NSW) outlines various sexual offences and sexual assault-related offences, as well as the penalties that may be faced if individuals are found guilty of these offences.

Is sexual assault a serious indictable offence?

Yes, sexual assault is a serious indictable offence. In NSW, a ‘serious indictable offence’ is any offence which is punishable by imprisonment of five years or more.

What is the penalty for sexual assault in NSW?

The penalties for sexual assault vary depending on the type of offending and whether committed under circumstances of aggravation. Under NSW, the maximum penalty for sexual assault is 15 year imprisonment, or 20 years if the offence has occurred in aggravated circumstances.

The greatest penalty for a sexual assault related offence carries a maximum term of life imprisonment if the sexual assault has occurred in the company or another person/persons. At Hamilton Janke Lawyers we treat every offence with the seriousness and diligence they deserve and can provide expert advice and defence to ensure you receive the best possible outcome.

Defenses Against Sexual Assault Charges

Pleading Not Guilty to Sexual Assault in NSW

If you choose to plead not guilty to sexual assault, you will not be charged if the prosecution fails to prove beyond a reasonable doubt the elements of the offence. 

Our experienced team can further provide advice on relevant defences to your circumstances that may enable you to be found ‘not guilty’ or receive a mitigated sentence. Common defences to sexual assault charges include, but are not limited to: 

  • Consent (Not valid if the victim is under 16 years of age, or in circumstances where they were unable to give consent) 
  • Alibi
  • Duress

Pleading Guilty to Sexual Assault in NSW?

If you agree that you have committed the offence, and the prosecution can prove the elements of the offence against you, you will likely receive the best outcome from pleading guilty at an early stage in the proceedings.

Pleading guilty to a Sexual Offence agrees that you engaged in the elements of the offence presented by the police and ODPP. Amongst other things,you are acknowledging that the victim did not consent to the sexual intercourse, touching or act. Pleading guilty at an early stage in the proceedings provides the greatest opportunity for a mitigated sentence, with the current maximum discount available for an early plea being 25%. There may also be other discounts available on sentence for providing assistance to authorities, amongst other things.

Burden of Proof

Sexual assault offences have 3 important elements and it must be proven by the prosecution beyond a reasonable doubt that: 

  • Sexual intercourse occurred
  • The victim did not consent
  • The accused person knew that the victim did not give consent


If an individual is found guilty of a sexual assault offence, the prosecution has to have proven beyond reasonable doubt one of the following: 

  • The accused is taken to know that the victim did not consent to a sextual activity 
  • The accused is reckless as to whether the other person consents to the sexual acitivyt 

Any belief that the accused person has, or may have, that the other person consents to the sexual activity is not reasonable in the circumstances

Why Choose Hamilton Janke Lawyers?

If you are being charged with sexual offences, it is vital that you seek legal advice and legal representation. An experienced sexual assault lawyer will be able to advise you on how to proceed and assist you through every step of the process. Contact our expert Sexual Assault Lawyers now.

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