Law Blog


Defending a Sexual Assault Charge

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If you have been charged with the offence of sexual assault it is important you seek advice from an experienced sexual assault lawyer. This is because the law of sexual assault is complex and nuanced. There are specific procedures, and restrictions to the production and admission of evidence involved in a sexual assault trial. Woolf Associates Solicitors has extensive experience in the complexities of the law of sexual assault. Woolf Associates understands that if you have been charged with sexual assault, your privacy is important.

The basics – What do the prosecution have to prove?

There are many different forms of sexual assault – for example aggravated sexual assault and sexual assault in company. To be found guilty of the simple offence of sexual assault the prosecution has to prove:

  1. That a person had sexual intercourse with another person.
  2. That the other person did not consent to the sexual intercourse. Consent has a legal meaning under section 61HE of the Crimes Act 1900 (NSW).
  3. That the person knew the other person was not consenting, was reckless to the lack of consent and sexual intercourse, or did not have reasonable grounds for believing that the other person consented to the sexual intercourse.

Common issues

Because most sexual offences are alleged to have occurred without any witnesses, the reliability and credibility of the complainant’s evidence is crucial. There are a number of hurdles a criminal defence lawyer must overcome to rely on certain types of evidence. For example, evidence of a confidential communication with the complainant’s counsellor is not to be admitted into evidence. This is known as the law of “sexual assault communications privilege.” There are exceptions to this rule. In certain circumstances, particularly in relation to historical sexual assault matters, obtaining the complainant’s counselling notes is imperative. Woolf Associates Solicitors has experience in making these applications.

The law says that evidence relating to the sexual reputation of the complainant, or evidence that discloses or implies that the complainant has or may have had sexual experience or lack of sexual experience is inadmissible. Again, in certain circumstances, an application can be made to the Court for the admission of this evidence.

A common issue that arises in relation to sexual assault is whether the complainant was “substantially intoxicated by alcohol or any drug.” The law states that a person does not consent to sexual activity if the person consents to the activity while substantially intoxicated by alcohol or any drug. The prosecution often relies on expert evidence to prove that the complainant was substantially intoxicated. This evidence can be objected to if not in the correct form.

Sexual assault is a serious offence that can, in certain circumstances, carry up to life imprisonment. Woolf Associates Solicitors has the particular expertise required to run a sexual assault trial.