Being charged with a sexual assault offence carries consequences that extend far beyond the immediate criminal proceedings. The penalties are severe. A conviction for a registrable offence triggers sex offender reporting obligations that can last years or a lifetime. The court process is complex, often lengthy, and governed by laws that were significantly reformed in 2022.
If you or someone you know has been charged, getting advice from an experienced criminal lawyer immediately is not optional, it is critical. The decisions made in the first 24 to 48 hours can directly affect the outcome of your case.
This fact sheet explains how NSW consent law currently works, what the charges mean, what defences may apply, and what to expect from the court process.
Key Takeaways
- NSW introduced an affirmative consent model on 1 June 2022 under the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW), significantly changing how courts assess sexual assault charges.
- Silence, lack of physical resistance, and being in a relationship do not constitute consent under current NSW law.
- Penalties range from 5 years to life imprisonment, depending on the offence.
- A conviction for a registrable sexual offence results in reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW).
- Self-induced intoxication cannot be used to support a belief that consent was given.
- Early legal representation is essential, the quality of advice you receive from the outset directly affects the outcome.
- O’Brien Criminal & Civil Solicitors have over 20 years of experience defending clients charged with sexual offences in NSW.
At a Glance: Your Rights
If you have been charged or are under investigation for a sexual assault offence, you have the right to remain silent beyond providing your name and address, to speak with a criminal lawyer before answering any police questions, to have legal representation throughout the entire court process, and to challenge the evidence against you.
Do not make any statement to the 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 are as follows.
Consent must be active, not assumed. A person consents to sexual activity only if, at the time of the activity, they freely and voluntarily agree. 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. When assessing whether a belief in consent was reasonable, courts must consider what steps the accused took to ascertain the other person’s consent. Failing to take any steps makes it significantly harder to argue that a belief in consent was reasonable, though the question ultimately remains one for the jury on the facts of each case.
Certain circumstances negate consent entirely. The law lists specific situations where consent is taken not to exist, including where 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.
Sexual Offences and Maximum Penalties
NSW law distinguishes between several categories of sexual offences, each carrying different maximum penalties under the Crimes Act 1900 (NSW).
| Offence | Section | Maximum Penalty |
| Sexual touching (non-consensual) | s61KC | 5 years imprisonment |
| Aggravated sexual touching | s61KD | 7 years imprisonment |
| Sexual assault | s61I | 14 years imprisonment |
| Aggravated sexual assault | s61J | 20 years imprisonment |
| Aggravated sexual assault in company | s61JA | Life imprisonment |
There are also sexual act offences under sections 61KE to 61KF with their own penalties, which may apply depending on the conduct alleged.
A note on sexual touching: This offence replaced the former “indecent assault” offence, which no longer exists under NSW law. 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.
Standard Non-Parole Periods
Standard non-parole periods (SNPs) are legislative guideposts representing a typical, mid-range example of the offence. The SNP for sexual assault under section 61I is 7 years. For aggravated sexual assault (s61J) it is 10 years, and for aggravated sexual assault in company (s61JA) it is 15 years. Courts can impose more or less depending on the specific circumstances of the case, including whether a guilty plea was entered.
Aggravating factors that can elevate a charge to aggravated sexual assault (s61J) include inflicting or threatening actual bodily harm, committing the offence in company, depriving the victim of liberty, offending against a child under 16, and offending against a person with a serious physical or cognitive disability.
How Courts Determine Consent
The prosecution must prove beyond a reasonable doubt two things: that the sexual activity was non-consensual, meaning 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 determine whether steps were taken to ascertain consent. Self-induced intoxication cannot be used to make a belief in consent more reasonable.
Juries are now directed on common misconceptions about sexual assault, 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 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 the following:Â
- 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 consent 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 alleged.
- 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.
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.
The Court Process
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 the ability to give 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, and limitations on the type of evidence the defence can use. These protections apply regardless of the nature of the defence being run.
Read our criminal defence case studies.
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.
| Circumstances | Reporting Period |
| Single Class 2 offence | 8 years (adults) |
| Single Class 1 offence, or two Class 2 offences | 15 years |
| More serious or repeat offending | Lifetime |
Not every sexual offence automatically triggers registration, it depends on whether the offence appears in the relevant schedule to the Act, and courts retain some discretion in limited circumstances.
Reporting obligations include notifying authorities of changes to your name, address, employment, and travel plans. Breaching these obligations is itself a criminal offence.
Frequently Asked Questions
What does “affirmative consent” actually mean in practice?
Both parties must say or do something to show they agree to the sexual activity. You cannot rely on silence or absence of protest. You need to take active steps, asking, checking, responding to body language, to confirm agreement is present and ongoing throughout the activity.
Can I be convicted if we were in a relationship?
Yes. Being in a relationship, or having previously had consensual sex with the complainant, 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 relevant to other aspects of the case depending on the specific circumstances.
Can charges be dropped before trial?
Yes, in some cases. An experienced criminal lawyer may identify weaknesses in the prosecution’s case, procedural issues, or grounds to have evidence excluded, which can lead to charges being withdrawn or reduced. This is one of the reasons early legal advice matters so much.
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.
What happens if I am convicted?
Full-time imprisonment is common for more serious sexual assault offences. Sex offender reporting obligations will likely follow, typically 8 years, 15 years, or life depending on the offence and your history. A conviction also creates a permanent criminal record, which can affect employment across many industries and international travel.
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 to 48 hours matter significantly.
- Do not discuss the allegations with anyone, not friends, not family, and certainly not online or via text message.
- Preserve all communications. Do not delete any messages, emails, or social media interactions. Your 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 claimed belief in consent. Running a defence in this environment requires detailed preparation, deep familiarity with current law, and the skill to challenge evidence within strict procedural rules governing complainant protections.
A specialist criminal lawyer will review the prosecution brief thoroughly, provide strategic advice on available defences from day one, challenge evidence effectively, liaise with prosecutors to identify weaknesses in the case, and represent you through every stage of proceedings from charge to verdict.
How O’Brien Criminal & Civil Solicitors Can Help
O’Brien Criminal & Civil Solicitors have over 20 years of experience representing clients charged with sexual offences across NSW courts. We understand the 2022 reforms in depth, the evidentiary rules that govern these cases, and what effective preparation looks like at every stage of proceedings.
If you have been charged, contact us before making any statement to the police or entering any plea. The earlier we are involved, the more options are available to you.
📞 02 9261 4281 or email Â
