Assault with intent to have sexual intercourse

Assault with intent to have sexual intercourse

Assault with intent to have sexual intercourse Section 61K

The statutory offence of ‘assault with intent to have sexual intercourse’ is found in Section 61K of theCrimes Act 1900 (NSW) (henceforth, the Act).

Assault with intent to have sexual intercourse is an assault, (1) with the intention to have sexual intercourse with another person, intentionally or recklessly inflicting actual bodily harm on that person or a third person (Section 61K(a)) or (2) threating to inflict actual bodily harm on the other person or a third person by means of an offensive weapon (Section 61K(b)). The maximum penalty for assault with the intent to have sexual intercourse is 20 years.

The onus is on the prosecution to prove all the elements of the offence. This includes proving the circumstances beyond reasonable doubt.

B Assault: Defined

In order to better understand the offence denoted in Section 61K, it is necessary to under what an ‘assault’ is, for it an essential element of the offence. As noted in the case of Darby v DPP (2004), an assault in essence is an act by which a person intentionally or recklessly causes another person to apprehend the immediate infliction of unlawful harm upon him or her.

The section clearly specifies the distinction between a charge of assault and one of battery as Section 61K(a) refers to the actual physical contact, whereas Section 61K(b) refers to a threat in relation to such prospective harm. Therefore, actual bodily harm is not necessary for an offence to be committed, a mere threat suffices. Assault thus rests on the apprehension felt by the victim.

C Sexual Intercourse: Defined

For the purposes of Section 61K, ‘sexual intercourse’ refers to penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes. Alternatively, it may be sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or cunnilingus, or the continuation of sexual intercourse as defined above.

Consent is the decisive factor between sexual intercourse and rape. A person knows that the other person does not consent to sexual intercourse if the person knows that the other person does not consent to the sexual intercourse or the person is reckless as to whether the other person consents to the sexual intercourse, i.e. the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

It is relevant to understand this definition as any person who is guilty of having sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is guilty of sexual assault as per Section 61I of the Act. Sexual Assault is also known colloquially Rape.

Moreover, it is clear that while there must be intent to have sexual intercourse, no actual sexual intercourse must occur. If there was sexual intercourse, and an assault occurs before or after intercourse, an offence of aggravated sexual assault takes place. This is not the same as Section 61K.

D Actual Bodily Harm: Defined

Actual bodily harm often involves any hurt or injury which has been occasioned with the intending to interfere with the health or comfort of the victim. Additionally, case law denotes that while such discomfort need not be permanent, it must be more than merely transient or trifling.

Assault occasioning in Actual bodily harm is contained within Section 59 of the Act.

E Offensive Weapon or Instrument: Defined

In relation to Section 61K, an offensive weapon or instrument is defined in the Crimes Act to mean a dangerous weapon, any thing that is made or adapted for offensive purposes, any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm.

F Evidence

The evidence called by the prosecution in a trial for assault with intent to have sexual intercourse may include: DNA evidence, a medical examination of the complainant and medical reports, complaint evidence – in some circumstances evidence of what the complainant said to another person after the alleged assault may be admissible at trial and/or an electronically recorded interview with a suspected person (ERISP).

G What should you do?

Assault with intent to have sexual intercourse is an extremely serious offence. It is also an offence that is commonly defended. Common examples which illustrate where a person’s prospects of successfully defending the charge include where the occurrence(s) occurred a long time ago, where the prosecution is reliant on the sole testimony of one witness, where there is no medical or DNA evidence or that evidence is in dispute, and where an Accused person is able to call character evidence to establish they would be less likely to have committed the offence.

If you choose to plead not guilty, the onus rests on the prosecution to prove beyond reasonable doubt that either actual bodily harm with intent to commit sexual assault or a threat to do so was made. If you agree that you have committed the offence and the prosecution is able to prove so and thus plead guilty, you will normally receive a discount on sentence. A person who has been charged of an offence of assault with the intent to have to have sexual intercourse can always allege in his defense that he did not have intention to have sexual intercourse.

As such, it is imperative that if you feel like you may have committed an assault with intent to have sexual intercourse, or have been charged with a sex offence, you need expert legal advice immediately. Our Sexual Assault Defence Lawyers have years of experience and are some of the best criminal lawyers in Sydney.