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Sexual Assault

What the law says

Section 352 of the Criminal Code states:

Any person who-

  • (a) unlawfully and indecently assaults another person; or
  • (b) procures another person, without the person's consent-
    • (i) to commit an act of gross indecency; or
    • (ii) to witness an act of gross indecency by the person or any other person

is guilty of a crime

Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years. In this section, "circumstances of aggravation" means circumstances in which: 

  • (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or 
  • (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or 
  • (c) the alleged offender is in the company of another person or persons, or 
  • (d) the alleged victim is under the age of 16 years, or 
  • (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or 
  • (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a serious intellectual disability.

What the police must prove

In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.

  1. The accused had sexual intercourse with a person.
  2. The other person did not consent to the sexual intercourse.
  3. The accused knew the other person did not consent to the sexual intercourse.
  4. The sexual intercourse was in circumstances of aggravation.

It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence.

Maximum penalty

The Maximum penalty for the offence of Sexual Assault is life imprisonment.

Which court will hear the matter

This matter is an indictable offence which can only be dealt with in the District Court.

Possible defences

Possible defences to this offence include but are not limited to

  1. Duress
  2. Necessity
  3. Self Defence

Criminal Law Article written by Bill Potts (a Queensland criminal defence lawyer who is experienced in sexual assault matters)

 

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