Sexual Act (section 61KE of the Crimes Act 1900 ) / Aggravated Sexual Act (section 61KF of the Crimes Act 1900 )

• A sexual act is carried is carried out with or towards an alleged victim; or
• the victim is incited to carry out a sexual act with or towards the accused person; or
• a third person is incited to carry out a sexual act with or towards the alleged victim; or
• the alleged victim is incited to carry out a sexual act with or towards a third person.

• The sexual act must be intentional; and
• the other person does not consent to the sexual act; and
• The accused person knows that the alleged victim does not consent.

The maximum penalty for these offences are:

• Section 61KE: Sexual act:
  •  imprisonment for 18 months.
• Section 61KF: Aggravated sexual act:
  • Imprisonment for 3 years.

Please note that these penalties are reserved for the most serious cases only.

This option is recommended only where you accept that:

Sexual Act

• you intentionally did a sexual act; or you incited a third party or the victim to do a sexual act; and
• the alleged victim does not consent to the sexual act; and
• the accused person knows that the alleged victim does not consent.

Aggravated sexual Act

• the above elements of a sexual act; and
• the accused person is in the company of at least one other person; or
• the alleged victim is under the authority of the accused person; or
• the alleged victim has a serious physical disability, or a cognitive impairment.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

• A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
• Community Corrections Orders (“CCO”)
  • A court may exercise this option (when aggravating circumstances Examples of aggravating circumstances include a repeat offence.
  • An example of a CCO is performing service within the community.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

To prove this charge, the Prosecution must establish, beyond a reasonable doubt that:

Sexual Act

• you intentionally did a sexual act; or you incited a third party or the victim to do a sexual act; and
• the alleged victim does not consent to the sexual act; and
• the accused person knows that the alleged victim does not consent.

Aggravated sexual Act

• the above elements of a sexual act; and
• the accused person is in the company of at least one other person; or
• the alleged victim is under the authority of the accused person; or
• the alleged victim has a serious physical disability, or a cognitive impairment.

If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then the court must find you not guilty.

Defences:

• You did not commit a sexual act.
  • This may be either that the act was not sexual in nature, or that no act was done at all.
• The act was not done with or towards the victim
  • The act was random and the alleged victim is an unknown bystander.
• The act was not intentional.
• Consent was given.
  • This is where you have been encouraged to undertake a sexual act.
• You did not know that consent was not given.
  • However, you cannot be reckless as to whether the alleged person consent.
  • Reckless means you knew that consent might be absent, but you proceeded nonetheless.
• Duress
  • Another person threatened or coerced you into a sexual act.
• Mistaken identity
  • It was not you.