In NSW, sexual offences are contained in Division 10 of Crimes Act 1900 (NSW). The offence of sexual assault is contained in section 61I Crimes Act 1900 (NSW) which states: 

Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

Elements of the offence

Prior to embarking on the elements of the offence, sexual assault lawyers stress that only the prosecution has the onus or burden to prove all the elements of an offence beyond a reasonable doubt. There is no burden or onus on the defendant to prove anything. 

The elements of sexual assault which the prosecution must prove are: 

1. that there was sexual intercourse, and 
2. that the complainant was not consenting, and 
3. that the defendant knew that the complainant was not consenting. 

Sexual intercourse

Sexual intercourse is defined in 61HA Crimes Act 1900 (NSW) which includes: 

1. penetration of the anus or genitalia of the complainant by:
   1. any part of the body of the defendant, or 
   2. any object manipulated by defendant, or 

2. the introduction of any part of the genitalia of the defendant/complainant into the mouth of complainant/defendant, or 
3. the application of the tongue or the mouth on the female genitalia. 

Consent 

In NSW, section 61HJ Crimes Act 1900 (NSW) states that there can be no consent in certain circumstances which include: 

1. if the complainant does not do anything or say anything to communicate their consent, 
2. if the complainant does not have the capacity to consent due to their age or any cognitive impairment, 
3. if the complainant is affected by drugs or alcohol as to not be able to consent to the sexual activity, 
4. if the complainant participates in the sexual activity because of fear of force or serious harm, 
5. if the complainant participates in the sexual activity because of blackmail or intimidation or coercion, 
6. if the complainant participates in the sexual activity because they are unlawfully detained,
7. if the complainant participates in the sexual activity because of fraudulent inducement. 

Knowledge of consent

The prosecution must also prove that defendant knew that the complainant was not consenting to the sexual activity. According to sexual assault lawyers, there are three ways that the prosecution can prove this element: 

1. the defendant actually knew that the complainant was not consenting to the sexual activity, or 
2. the defendant was reckless as to whether the complainant was consenting to the sexual activity, or 
3. the defendant’s belief to whether the complainant is consenting to the sexual activity is not reasonable in the circumstances. 

As sexual assault offences are prosecuted in the NSW District Courts before a jury, they will be directed that they must be satisfied of the elements of the offence beyond a reasonable doubt. 

A custodial sentence is the most usual outcome when the Courts sentence offenders for sexual assault matters with a non-custodial sentence only ordered by the NSW District Courts in the most exceptional of cases.