Under New South Wales law, sexual assault is defined under section 61I of the Crimes Act 1900 (NSW) as having sexual intercourse with another person without their consent, while knowing the other person does not consent to having sexual intercourse. 

To find someone guilty, the prosecution must prove all three elements beyond reasonable doubt. 

Elements

Element 1 – Sexual Intercourse Occurred 

The accused had sexual intercourse with the complainant. 

Element 2 – No Consent

The sexual intercourse occurred without the consent of the complainant. Consent must be freely and voluntarily given. Consent can be withdrawn at any time. 

Element 3 – The Accused Knew

The accused knew the complainant did not consent or was reckless as to whether they consented or had no reasonable grounds for believing the complainant was consenting. 

Penalty

This offence carries a maximum penalty of 14 years imprisonment. 

These rules reflect NSW’s affirmative consent model. Silence or lack of resistance does not mean there was consent. 

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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