Understanding the Charges and Your Rights
Being charged with a sexual assault offence is one of the most serious situations a person can face under NSW criminal law. The penalties are severe, a conviction often carries sex offender registration obligations, and the process itself is complex and often overwhelming. If you or someone you know has been charged, getting advice from an experienced lawyer immediately is not optional; it is critical.
This factsheet explains how NSW consent law currently works, what the charges mean, what defences may apply, and what to expect from the court process in New South Wales.
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Key Takeaways
- NSW significantly clarified and tightened its sexual assault laws on 1 June 2022, introducing an affirmative consent model that changed how courts assess sexual assault charges.
- Silence, lack of physical resistance, and being in a relationship do not constitute consent.
- Penalties range from 5 years to life imprisonment, depending on the offence.
- A conviction for a registrable sexual offence results in sex offender reporting obligations under NSW child protection law.
- Early legal representation is essential, outcomes are directly affected by the quality of advice you receive from the outset.
- O’Brien Criminal & Civil Solicitors, a leading criminal legal practice, have over 20 years of experience defending clients charged with sexual offences in NSW.
At a Glance: Your Rights at New South Wales
If you have been charged or are under investigation for sexual assault, you have the right to:
- Remain silent (beyond providing your name and address)
- Speak with a criminal lawyer before answering any police questions
- Have legal representation throughout the court process
- Challenge the evidence against you
- Do not make any statements to police before speaking with a lawyer. This is a serious legal matter and what you say can and will be used against you.
Do not make any statements to police before speaking with a lawyer. What you say can and will be used against you.
The 2022 Affirmative Consent Reforms
On 1 June 2022, the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW) came into effect, introducing a new affirmative consent standard into the Crimes Act 1900 (NSW).
The key changes under the sexual consent reforms are:
Consent must be active, not assumed. A person consents to sexual activity only if, at the time of the activity, a person freely and voluntarily agrees. Consent cannot be presumed from prior sexual history, a relationship, or silence.
Silence and lack of resistance are not consent. The law now explicitly recognises that a person may freeze or be unable to physically resist due to fear or shock. This cannot be interpreted as agreement.
Consent is ongoing. A person can withdraw consent at any time during sexual activity. Consent to one act does not mean consent to another.
Steps taken to ascertain consent matter. In deciding whether any belief in consent was reasonable, the court must consider what steps, if any, the accused took to ascertain the other person’s consent. Simply failing to take any steps makes it much harder to argue you reasonably believed the complainant consented, though the question remains one for the jury in each case.
Certain circumstances negate consent entirely. The law lists specific situations where consent is taken not to exist, including when a person is asleep or unconscious, so intoxicated they are incapable of consenting, or where there is force, fear of serious harm, coercion, or certain abuses of authority. There is also significant overlap with domestic violence law where the parties are in a domestic relationship.
Types of Sexual Offences and Maximum Penalties
NSW law distinguishes between several categories of sexual offences, each carrying different maximum penalties. The table below reflects the current law under the Crimes Act 1900 (NSW).
| Offence | Section | Maximum Penalty |
| Sexual touching (non-consensual) | s61KC | 5 years |
| Aggravated sexual touching | s61KD | 7 years |
| Sexual assault | s61I | 14 years |
| Aggravated sexual assault | s61J | 20 years |
| Aggravated sexual assault in company | s61JA | Life imprisonment |
There are also “sexual act” offences under ss 61KE–61KF with their own penalties, which may apply depending on the conduct alleged.
Note on “sexual touching”: This offence replaced the former “indecent assault” offence, which no longer exists under NSW law. This offence carries a maximum of 5 years imprisonment. Sexual touching includes deliberate touching of another person with any part of the body or object in circumstances where a reasonable person, applying community standards, would consider the touching sexual in nature.
Non-parole periods for sexual assault charges NSW
Standard non-parole periods: The standard non-parole period (SNP) for sexual assault under s61I is 7 years. For aggravated sexual assault (s61J) it is 10 years, and for aggravated sexual assault in company (s61JA) it is 15 years. SNPs are legislative guideposts for a typical, mid-range example of the offence, courts can impose more or less depending on the specific circumstances of the case and whether there was a guilty plea.
Aggravating factors that can elevate a charge to s61J (aggravated sexual assault) include inflicting or threatening actual bodily harm or grievous bodily harm, committing the offence in company with another person, depriving the victim of liberty, offending against a child under the age of 16, and offending against a person with a serious physical or cognitive disability.
How Courts Determine Consent
The prosecution must prove, beyond reasonable doubt, two things:
- That the sexual activity was non-consensual intercourse, that is, the complainant did not consent; and
- That the accused either knew the complainant did not consent, was reckless as to whether consent existed, or had no reasonable grounds for believing consent was given.
Courts assess what the accused said or did, before or during the sexual activity, to establish whether they took steps to ascertain consent. It is also worth noting that self-induced intoxication cannot be used to make a belief in consent more reasonable.
Juries are now directed on common misconceptions about consent, including why a person who has been sexually assaulted may not physically resist.
Defences to Sexual Assault Charges
The most common defence is that the complainant gave affirmative consent, that is, there is evidence they freely and voluntarily agreed by words or actions at the time. Counsel will need to point to specific evidence to support this.
Other defences that may be relevant, depending on the facts of the case include:
- Reasonable belief in consent: the accused took genuine steps to ascertain consent at the time, and it was reasonable in the circumstances to have believed it was given. Intoxication of the accused cannot be used to support this belief.
- Identification: that the accused was not the person who committed the act.
- Mental health impairment: where a significant mental health condition affected the accused’s understanding of the act or its consequences.
- No sexual intercourse occurred: contesting whether the physical acts alleged actually took place.
It is important to understand that prior sexual history between the parties, or between the complainant and any other person, is generally not admissible as evidence. Courts have strict rules protecting complainants from this line of cross-examination.
Court Process and Complainant Protections
Sexual assault charges usually start in the Local Court and then move to the District Court via charge certification and case conferencing, rather than through a traditional contested committal hearing.
Complainants have significant protections under NSW law, including:
- Giving evidence via closed-circuit television, rather than in open court
- Restrictions on cross-examination about prior sexual history
- Suppression of their identity in media reporting
- Exclusion of members of the public during their evidence
- Limitations on the type of evidence the defence can use
These protections are in place regardless of the nature of the defence being run.
Sex Offender Reporting Obligations
Many sexual assault convictions are “registrable offences” under the Child Protection (Offenders Registration) Act 2000 (NSW), which imposes ongoing reporting obligations. The length of the reporting period depends on the offence and the person’s history:
- Single Class 2 offence: 8-year reporting period for adults
- Single Class 1 offence, or two Class 2 offences: 15-year reporting period
- More serious or repeat offending patterns: Lifetime reporting
Courts also have some discretion in limited circumstances. Not every sexual offence automatically triggers registration, it depends on whether the offence appears in the relevant schedule to the Act.
Reporting obligations include notifying authorities of changes to your name, address, employment, and travel. Breaching these obligations is itself a criminal offence.
Frequently Asked Questions
What does “affirmative consent” actually mean in practice?
It means that both parties must do or say something to show they agree to the sexual activity. You cannot rely on the other person’s silence or lack of protest. You need to take active steps, asking, checking, responding to body language, to confirm agreement is present throughout.
Can I be convicted if we were in a relationship?
Yes. Being in a relationship, being a former partner who previously had consensual sex, does not mean consent is assumed for any future encounter. Consent must be given freely for each instance of sexual activity.
Can I be convicted based only on one person’s word?
Yes. NSW law does not require corroboration of a complainant’s evidence. A jury can convict on the evidence of a complainant alone if they find it reliable beyond reasonable doubt.
What if I was intoxicated at the time?
Self-induced intoxication cannot be used in your favour when assessing whether you had a reasonable belief that consent existed. It may, however, be highly relevant to other aspects of the case depending on the specific circumstances.
What happens if I am convicted?
For sexual assault, full-time imprisonment is very common, especially for more serious offences. Sex offender reporting obligations are also likely, typically eight years to 15 years, or life, depending on the offence and your history. A conviction will also create a permanent criminal record, which can affect employment in many industries and international travel.
Can charges be dropped before trial?
Yes, in some cases. An experienced criminal lawyer may be able to identify whether there is enough evidence to sustain the prosecution case, procedural issues, or grounds to have evidence excluded, which can lead to charges being withdrawn or reduced. This is why early legal advice matters.
What evidence do police typically rely on?
This varies by case but commonly includes the complainant’s statement, forensic evidence, digital communications (messages, social media), phone records, CCTV footage, and witness accounts.
Practical Steps if You Have Been Charged
- Do not answer police questions. Exercise your right to silence beyond confirming your name and address. Say clearly: “I wish to remain silent. I want a lawyer.”
- Contact a criminal lawyer immediately. Do not wait. The first 24–48 hours matter significantly to the conduct of your defence.
- Do not discuss the allegations with anyone. Not friends, not family, and certainly not online or via text.
- Preserve all communications. Do not delete any messages, emails, or social media interactions. Your criminal lawyer may need these.
- Attend all court dates. Failing to appear creates serious additional legal problems.
Why Legal Representation Matters
Sexual assault cases are among the most legally complex in the NSW criminal system. The 2022 reforms changed the way consent is assessed, the directions judges give juries, and the standard applied to a defendant’s belief. Running a defence in this environment requires detailed preparation, deep familiarity with the current law, and the skill to challenge evidence effectively.
At O’Brien Criminal & Civil Solicitors, our criminal defence team have extensive experience representing clients charged with sexual offences across NSW courts. We provide:
- Thorough review of the prosecution brief and all evidence
- Strategic advice on available defences from day one
- Experienced cross-examination of complainants and witnesses in accordance with court rules
- Liaison with prosecutors to identify any weaknesses in the case
- Representation through every stage of proceedings, from charge to verdict
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Sexual assault charges can devastate lives. Early expert legal intervention makes a major difference. Contact our specialist sexual assault and abuse lawyers today:
📞 02 9261 4281 or email
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