It is an offence for any person who, without the consent of another person and knowing that the complainant does not consent, intentionally carries out or incites a sexual act under Section 61KE of the Crimes Act 1900 (NSW). An aggravated sexual act is also an offence under Section 61KF.

Sexual Act

The offence can occur if the accused:

• carries out a sexual act with or towards the complainant, or
• incites the complainant to carry out a sexual act with or towards the accused, or
• incites a third person to carry out a sexual act with or towards the complainant, or
• incites the complainant to carry out a sexual act with or towards a third person.

Aggravated Sexual Act

A person commits the offence of aggravated sexual act if they intentionally engage in conduct that would amount to a sexual act offence without the complainant’s consent, while knowing the complainant does not consent, and the conduct occurs in circumstances of aggravation.

The offence may involve, in circumstances of aggravation, the accused carries out a sexual act with or towards the complainant, inciting the complainant to carry out a sexual act with or towards the accused, inciting a third person to carry out a sexual act with or towards the complainant, or inciting the complainant to perform a sexual act with or towards a third person.

Circumstances of Aggravation

Circumstances of aggravation include:

• the accused is in the company of another person or persons, or
• the complainant is under the authority of the accused, or
• the complainant has a serious physical disability, or
• the complainant has a cognitive impairment.

Penalties

The maximum penalty for a sexual act is 18 months imprisonment.

The maximum penalty for an aggravated sexual act is 3 years imprisonment.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

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