News · NSW criminal law
Sexual assault in New South Wales.
Sexual assault is the most serious of the ordinary sexual offences in New South Wales, and it is the charge the law once called rape. It sits in section 61I of the Crimes Act 1900, and it turns on three things: sexual intercourse, the absence of consent, and the accused's knowledge that there was no consent. The 2022 consent reforms changed how the third element is proved, and put the question of what the accused said or did at the centre of many trials. This note sets out what the offence requires, the maximum penalty, the standard non-parole period, how the heavier aggravated forms work, how consent is now decided, and what defending the charge involves.
By Aaron Kernaghan · Published 7 July 2026
What is considered a sexual assault charge in NSW?
Sexual assault comes from section 61I of the Crimes Act 1900. A person commits the offence if they have sexual intercourse with another person, that other person does not consent, and the accused knows there is no consent. Those are the three elements, and the Crown has to prove each of them beyond reasonable doubt. The full text of the Act is on the NSW legislation site.
Sexual intercourse is defined widely. It covers penetration of the genitalia or the anus of any person, however slight, by any part of another person's body or by an object. It also covers oral sexual contact. So the offence reaches well beyond what the old word rape described. This is the charge for adult complainants and for children of 16 and over. Where the complainant is younger, or has a cognitive impairment, other sections in the same part of the Act apply instead. A less serious sexual offence, touching that falls short of intercourse, is charged as sexual touching.
What is the penalty for sexual assault in NSW?
The maximum penalty for sexual assault under section 61I is 14 years imprisonment. The offence carries a standard non-parole period of 7 years. A standard non-parole period is the reference point a judge measures a mid-range case against. It is a guidepost, not a floor, and the High Court confirmed how it works in Muldrock v The Queen [2011] HCA 39, on JADE. The Judicial Commission of NSW collects the sentencing statistics and the guideline case law.
There are two heavier forms. Aggravated sexual assault, under section 61J, applies where the intercourse happens in circumstances of aggravation. Those circumstances include the infliction of actual bodily harm, a threat with a weapon, the complainant being under the offender's authority, the complainant being deprived of liberty, or the offence being committed in company. Section 61J carries a maximum of 20 years and a standard non-parole period of 10 years. Aggravated sexual assault in company, under section 61JA, is the most serious. It carries a maximum of life imprisonment and a standard non-parole period of 15 years. The gap between these sections is why the way a charge is framed matters so much from the first day.
How does consent work under the affirmative consent laws?
Consent is where most sexual assault trials are won or lost, and the rules changed on 1 June 2022. Consent now sits in sections 61HI to 61HK of the Act. The starting point in section 61HI is simple: a person consents to sexual activity only if they freely and voluntarily agree to it at the time. A person can withdraw consent at any point, and consent to one act is not consent to another. The NSW Government's consent guidance sets out the plain-English version.
Section 61HJ lists the situations where there is no consent as a matter of law. There is no consent where the person does not say or do anything to communicate consent, where they are asleep or unconscious, where they take part because of force, fear or coercion, where they are so affected by alcohol or drugs that they cannot consent, or where they are unlawfully detained. Section 61HK deals with the accused's state of mind. A belief in consent is not reasonable if the accused did not, within a reasonable time before or at the time of the activity, say or do anything to find out whether the other person consented. Silence, or a lack of physical resistance, is not consent. This is the affirmative model, and we set out how it reshaped the trial in our note on the 2022 consent reforms. The reforms are forward-looking, so an older offence is judged under the law as it stood at the time.
How much evidence is needed to charge someone with sexual assault?
Less than many people expect. Police can charge on the complaint alone. There is no rule that a sexual assault has to be corroborated, which means an accused can be charged, and later convicted, on the account of a single witness if a jury accepts that witness beyond reasonable doubt. There is no need for physical injury, for forensic evidence, or for an independent witness. A judge is not allowed to warn a jury that complainants in sexual cases are an unreliable class of witness.
That does not make the Crown case easy to prove, but it does mean the fight is usually about the quality of the evidence rather than its quantity. The complainant's account, any first complaint they made to another person, the messages between the parties, and the accused's own account in a police interview all become the ground the case is fought on. Anyone asked to take part in a police interview should get advice first, and our note on the recorded police interview explains why the right to silence matters here.
How hard is it to prosecute or defend a sexual assault case?
These cases are hard for both sides, for the same reason. They usually come down to the word of one person against another, about events that happened in private. The Crown carries the burden throughout, and it has to prove each element beyond reasonable doubt. The accused does not have to prove anything, and does not have to give evidence. Where consent is the issue, the Crown has to exclude the reasonable possibility that the complainant was consenting, and exclude the reasonable possibility that the accused believed on reasonable grounds that they were.
Defending the charge is careful work. It starts with the brief: the complainant's statement, the electronic record of the police interview, the phone downloads, the medical and forensic material, and the timeline. It often turns on the account the complainant gave to the first person they spoke to, on messages sent before and after, and on the internal consistency of the story over time. Cross-examination in these trials is tightly controlled, and there are strict limits on questions about a complainant's sexual history. The defence has to be built, not improvised, which is why early advice and a proper reading of the whole brief come first.
What happens if you are found guilty of sexual assault?
A conviction for sexual assault almost always means full-time imprisonment. The standard non-parole period sets the reference point, and a court moves up or down from it according to the objective seriousness of the offence and the offender's circumstances. The statutory sentencing factors in section 21A apply, and a plea of guilty can attract a discount, which our note on the early plea discount explains.
There are consequences beyond the sentence. Where the complainant was a child, the offence is a registrable offence and a conviction brings reporting obligations under the child protection register that can last many years. Where the complainant was an adult, sexual assault is not automatically a registrable offence, but a conviction is recorded and it carries lasting effects on work, travel and reputation. These are among the most serious charges a person can face, and the outcome is worth the fullest preparation.
Where the charge starts and how it runs.
Sexual assault is strictly indictable. It begins in the Local Court, but it cannot be finalised there. It is committed to the District Court for trial or sentence, and the most serious matters go to the Supreme Court. A trial is heard by a judge and jury. The path is long, and a person charged is usually on bail while the case works through the committal, the arraignment, and the trial listing. The same offence in the ACT is charged as sexual intercourse without consent under the Crimes Act 1900 (ACT), and it runs through the ACT courts.
Because the case is long and the stakes are high, the way it is run from the first day matters. A brief that is read in full, a defence theory settled early, and a barrister briefed in time are what separate a case that is fought well from one that is not. Our guide to working with counsel sets out how a solicitor and barrister run a serious trial together.
Frequently asked.
What is considered a sexual assault charge in NSW?
It is the offence in section 61I of the Crimes Act 1900: sexual intercourse with another person without consent, where the accused knows there is no consent. Sexual intercourse is defined widely and covers penetration of the genitalia or anus and oral sexual contact. It is the charge the law once called rape. Aggravated forms are charged under sections 61J and 61JA.
What is the penalty for sexual assault in NSW?
Section 61I carries a maximum of 14 years and a standard non-parole period of 7 years. Aggravated sexual assault under section 61J carries 20 years and a standard non-parole period of 10 years. Aggravated sexual assault in company under section 61JA carries life imprisonment and a standard non-parole period of 15 years.
How much evidence is needed to charge someone with sexual assault?
Police can charge on the complaint alone. There is no rule that a sexual assault must be corroborated, so a person can be charged, and convicted, on the evidence of one witness if a jury accepts it beyond reasonable doubt. There is no need for injury, forensic evidence or an independent witness.
How does consent work under the affirmative consent laws?
Since 1 June 2022, sections 61HI to 61HK govern consent. A person consents only if they freely and voluntarily agree at the time. A belief in consent is not reasonable if the accused did not say or do anything to find out whether the other person consented. Silence or a lack of resistance is not consent.
Is rape still a charge in NSW?
No. NSW no longer uses rape as a charge. The conduct the old law called rape is now prosecuted as sexual assault under section 61I, described in the statute as sexual intercourse without consent. The word is still used in everyday speech, but not on the indictment.
What is the minimum sentence for sexual assault in NSW?
There is no mandatory minimum. The standard non-parole period of 7 years for section 61I is a reference point for a mid-range case, not a floor, and a court can go below it for reasons it must state. In practice a conviction almost always means full-time imprisonment.
To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.
This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 7 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.
More criminal-law commentary by Aaron Kernaghan.