Sexual Assault

In the ACT, it is an offence to sexually assault a person. The maximum penalty ranges from 12 years to 20 years imprisonment, depending on the offence.

Sexual assaults in the first, second and third degree are offences which use coercion for sexual intercourse; that is, inflicting harm or threatening to inflict harm if someone does not engage in sexual intercourse. The harm can be inflicted on the person who it is intended will engage in sexual intercourse, or on a third person.

The degree is determined by the seriousness of assault that accompanies the intended sexual intercourse. Sexual assault in the third degree is the least serious of the three, requiring an unlawful assault or mere threat of grievous/actual bodily harm. Meanwhile, the most serious, being sexual assault in the first degree, requires grievous bodily harm to actually be inflicted.

What is Sexual Intercourse?

To understand why you may be charged with an act of indecency, it is important to acknowledge the broad interpretation given to ‘sexual intercourse.’ Sexual intercourse is defined in section 50 of the Crimes Act 1900 as:-

The penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
The penetration, to any extent, of the genitalia or anus of a person by an object, being penetration carried out by another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
The introduction of any part of the penis of a person into the mouth of another person; or
Fellatio; or
Cunnilingus; or
The continuation of sexual intercourse as defined in any of the above.

Where:

‘Genitalia’ includes surgically constructed or altered genitalia; and
‘Object’ includes an animal.

Sexual Assault in the First Degree

Sexual assault in the first degree can be committed while the accused is acting alone or in company with someone else, contained in section 51(1) and 51(2) of the Crimes Act 1900, respectively.

If the offence is committed while the accused is acting alone, the relevant provision is section 51(1) of the Crimes Act 1900 which states that the accused commits an offence if they:-

Inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
Inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with a third person who is present or nearby.

This offence carries a maximum penalty of imprisonment for 17 years.

If the offence is committed while the accused is acting in company with someone else, the relevant provision is section 51(2) of the Crimes Act 1900 which states that the accused commits an offence if they, while acting in company of someone else do any of the following:-

Inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
Assist in inflicting grievous bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
Inflict grievous bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with the complainant; or
Assist in inflicting grievous bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with the complainant; or
Inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with any other person who is present or nearby; or
Assist in inflicting grievous bodily harm on the complainant with intent to engage in sexual intercourse with any other person who is present or nearby; or
Inflict grievous bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with any other person who is present or nearby; or
Assist in inflicting grievous bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with any other person who is present or nearby.

This offence carries a maximum penalty of imprisonment for 20 years.

What is Grievous Bodily Harm?

In order to be guilty of sexual assault in the first degree, the harm inflicted must amount to grievous bodily harm. The dictionary contained in the Crimes Act 1900 states that grievous bodily harm to a person includes:-

Any permanent or serious disfiguring of a person; and
For a pregnant woman, loss of or serious harm to the pregnancy other than in the course of a medical procedure (whether or not the woman suffers any other harm).

Grievous bodily harm is also described in case law as a ‘really serious injury’.

Sexual Assault in the Second Degree

Sexual assault in the second degree can be committed while the accused is acting alone or in company with someone else, contained in section 52(1) and 52(2) of the Crimes Act 1900, respectively.

If the offence is committed while the accused is acting alone, the relevant provision is section 52(1) of the Crimes Act 1900 which states that the accused commits an offence if they:-

Inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
Inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with a third person who is present or nearby.

This offence carries a maximum penalty of imprisonment for 14 years.

If the offence is committed while the accused is acting in company with someone else, the relevant provision is section 52(2) of the Crimes Act 1900 which states that the accused commits an offence if they, while acting in company of someone else do any of the following:-

Inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
Assist in inflicting actual bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
Inflict actual bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with the complainant; or
Assist in inflicting actual bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with the complainant; or
Inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with any other person who is present or nearby; or
Assist in inflicting actual bodily harm on the complainant with intent to engage in sexual intercourse with any other person who is present or nearby; or
Inflict actual bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with any other person who is present or nearby; or
Assist in inflicting actual bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with any other person who is present or nearby.

This offence carries a maximum penalty of imprisonment for 17 years.

What is Actual Bodily Harm?

In order to be guilty of sexual assault in the second degree, the harm inflicted must amount to actual bodily harm. This broadly requires that a visible injury be present to show that bodily harm occurred, for example a bruise or scratch. The case law also states that the injury does not need to be permanent, but “must be more than merely transient or trifling”.

The dictionary contained in the Crimes Act 1900 extends the definition to include actual bodily harm to a pregnant woman, which includes harm to the pregnancy other than in the course of a medical procedure (whether or not the woman suffers any other harm).

Sexual Assault in the Third Degree

Sexual assault in the third degree can be committed while the accused is acting alone or in company with someone else, contained in section 53(1) and 53(2) of the Crimes Act 1900, respectively.

If the offence is committed while the accused is acting alone, the relevant provision is section 53(1) of the Crimes Act 1900 which states that the accused commits an offence if they:-

Unlawfully assault the complainant with intent to engage in sexual intercourse the complainant; or
Threaten to inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
Threaten to inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
Unlawfully assault the complainant with intent to engage in sexual intercourse with a third person who is present or nearby; or
Threaten to inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with a third person who is present or nearby; or
Threaten to inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with a third person who is present or nearby.

This offence carries a maximum penalty of imprisonment for 12 years.

If the offence is committed while the accused is acting in company with someone else, the relevant provision is section 53(2) of the Crimes Act 1900 which states that the accused commits an offence if they, while acting in company of someone else do any of the following:-

Unlawfully assault the complainant with intent to engage in sexual intercourse with the complainant; or
Threaten to inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
Threaten to inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with the complainant; or
Unlawfully assault the complainant with intent that any person in the accused’s company should engage in sexual intercourse with the complainant; or
Threaten to inflict actual bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with the complainant; or
Threaten to inflict grievous bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with the complainant; or
Unlawfully assault the complainant with intent to engage in sexual intercourse with any other person who is present or nearby; or
Threaten to inflict actual bodily harm on the complainant with intent to engage in sexual intercourse with any other person who is present or nearby; or
Threaten to inflict grievous bodily harm on the complainant with intent to engage in sexual intercourse with any other person who is present or nearby; or
Unlawfully assault the complainant with intent that any person in the accused’s company should engage in sexual intercourse with any other person who is present or nearby; or
Threaten to inflict actual bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with any other person who is present or nearby; or
Threaten to inflict grievous bodily harm on the complainant with intent that any person in the accused’s company should engage in sexual intercourse with any other person who is present or nearby.