Sexual offences are among the most serious to come before our courts. They are often complex, heavily reliant on memory or societal norms, and may date back many years.

They might have occurred in circumstances where only the two people involved were present. There is a real spike in the number of people being charged with historic sexual offences. Such charges might arise out of allegations of conduct that was perhaps acceptable 20 years ago, but today is potentially criminal. Their very nature of sexual offences often means highly sensitive material could be brought up in court.

Anyone charged with a sexual offence needs the advice, guidance and support of an experience legal team like Nott and Co Lawyers. They will respond with determination, delicacy and compassion and steer you with confidence as your matter proceeds.

A sexual act refers to behaviour that is non-consensual, sexual in nature and does not include touching. It can include things like masturbating or exposing genitals in front of the complainant or simulating a sexual act.

Genuine medical or hygiene procedures are not considered to be sexual acts.

Sexual acts offences were previously known as acts of indecency. They are generally heard in the Local Court unless the defence or prosecution elects to take the case to the District Court.

The prosecution must prove beyond reasonable doubt that:

• The defendant carried out a sexual act towards the complainant, incited a third person to do so or incited the complainant to carry out a sexual act, and
• The complainant did not consent, and
• The defendant knew consent was not given or was reckless as to whether consent was given, and
• A reasonable person would consider the act to be sexual.

The maximum penalty for the sexual offence of sexual touching cases heard in Local Court is 2 years imprisonment and/or a $5,500 fine.

The maximum penalty for sexual touching cases heard in District Court is 5 years imprisonment.

In all cases, penalties depend on the facts of your case and the effectiveness of your legal team in explaining your circumstances.

Sexual touching matters have a range of defences. If the prosecution fails to prove the basic elements of the charge – that the touching occurred, and was sexual, intentional and non-consensual – it will be dismissed.

Matters that determine if the act is sexual include whether:

• It involves the person’s genital area, anal area or, if the person is female or identifies as female, breasts, or
• The defendant’s acts were for sexual gratification or arousal, or
• There was some other aspect to the act or its circumstances that made is sexual.

Other defences include:

Duress: If you were unlawfully coerced into performing sexual touching through serious threats you believe put you or your family at risk, you may be deemed to be acting under duress.

Necessity or self-defence: If you were in imminent danger and performed the sexual touching only to avoid that danger, and because you believed there was no alternative, you may have a necessity defence.

Involuntary action: This means the act was done unconsciously or reflexively and you could not help doing it (for example, sleepwalking).

Consent: You honestly and reasonably believed the complainant had given consent to the act.

Purpose: The act was for a legitimate medical or hygienic purpose.

Identity: The prosecution must prove it was you who performed the act or that you made someone else do it.

Sexual touching is any conduct that involves physical, non-consensual contact with another person that is sexual in nature. The touching can be with a part of the body, through clothing or with something else.

Genuine medical or hygiene procedures are not considered to be sexual touching.

Offences of sexual touching are heard in the Local or District Court.

With this Sexual Offence, the prosecution must prove beyond reasonable doubt that:

• The complainant was sexually touched by the accused or a third party, or was made to sexually touch the accused or a third party and
• The touching was sexual, and
• The touching was not consensual and

The accused knew the touching was not consensual.

Penalties for committing the sexual offence of a sexual act vary depending on the age of the victim.

In the most lenient circumstances, sexual act offences result in a criminal record and up to 18-months imprisonment and/or a fine of up to $5,500.

If the victim is 10 to 15 years old, the penalty is up to 2 years in prison.

If the victim is 10 years or less, the maximum penalty is 7 years imprisonment.

In all cases, penalties depend on the facts of your case and the skill of your legal team in explaining your circumstances. It is important to retain experienced legal representation in all of these circumstances.

Sexual Act matters have a range of defences. If the prosecution fails to prove the basic elements of the charge – that the act was sexual, intentional and non-consensual – it will be dismissed.

Matters taken into account when determining if the act is sexual include whether:

• It involves the person’s genital area, anal area or, if the person is female or identifies as female, breasts, or
• The defendant’s acts were for sexual gratification or arousal
• There was some other aspect to the act or its circumstances that made is sexual.

Other defences include:

Duress: If you were unlawfully coerced into performing a sexual act through serious threats you believe put you or your family at risk, you may be deemed to be acting under duress.

Necessity or self-defence: If you were in imminent danger and performed the sexual act only to avoid that danger, and because you believed there was no alternative, you may have a necessity defence.

Involuntary action: This means the act was done unconsciously and you could not help doing it.

Consent: You honestly and reasonably believed the complainant had given consent to the act.

Purpose: The act was for a proper medical or hygienic purpose.

Identity: The prosecution must prove it was you who performed the act or that you made someone else do it.

In all cases, penalties depend on the facts of your case and the effectiveness of your legal team in explaining your circumstances.

Indecent assault is any conduct that involves physical, non-consensual contact with another person that offends current standards of decency. It doesn’t have to be sexual, but it does have to have a sexual connotation, for example exposing your genitals in public. It does not include penetration or sexual intercourse.

Genuine medical or hygiene procedures are not considered to be sexual touching.

Since December 2018, indecent assault has been known as ‘sexual touching’ but the term remains for cases which pre-date that time.

Sexual Offences of indecent assault are heard in the Local or District Court.

There are four elements that must be proven beyond reasonable doubt for an indecent assault charge to succeed:

• That an assault took place and that it was done by the accused, or another person incited by the accused on or in the presence of the complainant, and
• That the assault was ‘indecent’, and
• That consent was not given, and
• That the accused knew consent was not given but went ahead anyway.

The maximum penalty for this sexual offence is 5 years in prison if the case proceeds to the District Court, or 2 years and/or $5,500 if it remains in the Local Court.

Lack of touching: If there was no physical contact, indecent assault charges do not apply.

Duress: If you were unlawfully coerced into performing the indecent assault through serious threats you believe put you or your family at risk, you may be deemed to be acting under duress.

Necessity or self-defence: If you were in imminent danger and performed the indecent assault only to avoid that danger, and because you believed there was no alternative, you may have a necessity defence.

Involuntary action: This means the act was done unconsciously or reflexively and you could not help doing it (for example, sleepwalking).

Consent: You honestly and reasonably believed the complainant had given consent to the act. Consent is not a defence if the victim is under 16 year of age.

Purpose: The act was for a legitimate medical or hygienic purpose.

Identity: The prosecution must prove it was you who performed the act or that you made someone else do it.

Mental illness: This defence applies when significant mental impairment can be proven, illustrating that the accused did not know their actions were wrong.

A sexual act refers to behaviour that is non-consensual, sexual in nature and does not include touching. This sexual offence can include things like masturbating or exposing genitals in front of the complainant or simulating a sexual act. This becomes a more serious matter – an aggravated sexual act – when a ‘circumstance of aggravation’ is present, including if:

• The accused is with at least one other person, or
• The complainant is under the authority of the accused, or
• The complainant has a serious physical disability, or
• The accused intentionally or recklessly inflicts (or threatens to inflict) actual bodily harm on the victim or any person nearby, or
• The accused took advantage of the complainant being under the influence of drugs or alcohol, or
• The complainant has been deprived of liberty before or after the act, or
• The accused has broken into a building with the intention of committing the aggravated sexual act.
• The complainant has a physical or cognitive impairment.

Cases of aggravated sexual act are heard in the Local Court unless the defence or prosecution elects to take the case to the District Court. These sexual offences are serious matters that require committed legal representation.

The prosecution must prove beyond reasonable doubt that the accused intentionally:

• Carried out a sexual act with or towards the complainant, or
• Incited the complainant to carry out a sexual act with or towards the accused, or
• Incited a third party to carry out a sexual act with or towards the complainant, or
• Incited the complainant to carry out a sexual act with or towards a third party, and
• There was no consent, and
• The accused knew the complainant did not consent, and
• There was at least one circumstance of aggravation.

The maximum penalty for carrying out the sexual offence of an aggravated sexual act is 3 years’ imprisonment, but this increases to 5 years if the alleged victim is aged between 10 and 16 years.

Aggravated Sexual Act matters have a range of defences. If the prosecution fails to prove the basic elements of the charge – that the act was sexual, intentional and non-consensual, and that there was a circumstance of aggravation – it will be dismissed.

Matters taken into account when determining if the act is sexual include whether:

• It involves the person’s genital area, anal area or, if the person is female or identifies as female, breasts, or
• The defendant’s acts were for sexual gratification or arousal, or
• There was some other aspect to the act or its circumstances that made it sexual.

Other defences include:

Duress: If you were unlawfully coerced into performing an aggravated sexual act through serious threats you believe put you or your family at risk, you may be deemed to be acting under duress.

Necessity or self-defence: If you were in imminent danger and performed the aggravated sexual act only to avoid that danger, and because you believed there was no alternative, you may have a necessity defence.

Involuntary action: This means the act was done unconsciously and you could not help doing it.

Consent: You honestly and reasonably believed the complainant had given consent to the act.

Purpose: The act was for a proper medical or hygienic purpose.

Identity: The prosecution must prove it was you who performed the act or that you made someone else do it.

Aggravation: The prosecution cannot prove there was a circumstance of aggravation.

In all cases, penalties depend on the facts of your case and the effectiveness of your legal team in explaining your circumstances.

Contact Nott and Co Lawyers immediately for advice about any of the sexual offence matters below. They will provide guidance, information and support.

The prosecution must prove beyond reasonable doubt that the accused intentionally:

• Carried out a sexual act with or towards the complainant, or
• Incited the complainant to carry out a sexual act with or towards the accused, or
• Incited a third party to carry out a sexual act with or towards the complainant, or
• Incited the complainant to carry out a sexual act with or towards a third party, and
• There was no consent, and
• The accused knew the complainant did not consent, and
• There was at least one circumstance of aggravation.