News · ACT criminal law
Sexual intercourse without consent in the ACT.
Consent is the line that decides most sexual assault trials in the Australian Capital Territory. Since May 2022 the Territory has run an affirmative consent model, which means consent has to be communicated and not assumed. After a statutory review, the ACT Government reported in 2025 that the reforms were working as intended. The charge these cases usually run on is sexual intercourse without consent, in section 54 of the Crimes Act 1900 (ACT). This note sets out what the offence requires, what consent now means, when the law says a person did not consent, the maximum penalties, how the prosecution proves the case, and the defences that are open.
By Aaron Kernaghan · Published 6 July 2026
What is sexual intercourse without consent in the ACT?
It is the ACT's main sexual assault charge, set out in section 54 of the Crimes Act 1900 (ACT). A person commits the offence when they have sexual intercourse with another person without that person's consent, and are reckless as to whether the person consents. Two things have to be shown together: the absence of consent, and the accused's guilty state of mind about it.
Sexual intercourse is defined widely for this offence. It covers penetration of the genitalia or anus of a person by a body part or an object, and oral sex. The charge is indictable. It begins in the ACT Magistrates Court but is finalised in the ACT Supreme Court, either as a plea or as a trial before a judge and jury. The full text of the Act is on the ACT legislation register.
What does affirmative consent mean in the ACT?
Consent means free and voluntary agreement. The change that matters is how that agreement is shown. Since the Crimes (Consent) Amendment Act 2022 commenced on 12 May 2022, the ACT runs a communicative, or affirmative, model of consent. Agreement has to be shown by words or conduct at the time of the act. It can be withdrawn at any point, and consent to one act is not consent to another. The ACT was the first Australian jurisdiction to put this model into statute.
The practical effect is that a person cannot treat silence or a lack of resistance as a green light. The ACT Government sets out the changes in plain terms on its consent law page. Our note on the 2022 consent reforms explains how the model works in a running trial.
What is an example of affirmative consent?
A clear example is asking and getting a spoken yes, or a plain physical response that shows agreement, before and during the act. The opposite is assuming agreement from the fact that the other person did not object. Under the ACT model a person who wants to rely on a belief that the other person was consenting has to point to something they said or did to find that out.
Section 67 of the Act builds that idea into the test for the accused's state of mind. An accused cannot say their belief in consent was reasonable if it rested on the other person's silence or inaction alone. The jury is told to weigh up what the accused actually did to check for consent. This is the heart of the affirmative model: consent is something to be sought, not presumed.
When does the law say a person did not consent?
Section 67 lists circumstances where there is no consent, even if some form of agreement appears to have been given. There is no consent where the agreement was given because of force, or a fear of harm to the person or to someone else, or because of coercion or intimidation. There is no consent where the person was unlawfully detained, was asleep or unconscious, or was so affected by alcohol or another drug that they could not consent.
The list also covers a mistake about the identity of the other person, a mistake about the nature of the act, fraud, and an abuse of a position of trust or authority. This is where the idea people search for as sexual coercion sits in the law. Pressured or frightened agreement is not consent. The circumstances in section 67 are not the whole of the question, because a person can decline to agree in any way, but they set out the situations the Act treats as ruling consent out.
What is the penalty for sexual intercourse without consent in the ACT?
The basic offence carries a maximum of 12 years imprisonment. The maximum rises to 15 years where the offence is committed in company with another person, or in the context of family violence. It rises again to 18 years where the offence is committed both in company and in the context of family violence. More serious sexual assaults that involve wounding or the infliction of harm are charged under the higher offences in sections 51 to 53 of the Act, which carry maximum penalties up to 25 years.
The ACT does not have the standard non-parole period scheme that applies in New South Wales. Sentencing is governed by the Crimes (Sentencing) Act 2005 (ACT), and the court sets a head sentence and, in most cases, a non-parole period within it. For a proven charge, a term of full-time imprisonment is the usual result, and general deterrence carries real weight. The full range of sentencing options is discussed in our note on the cost of a rushed plea in the ACT.
How does the prosecution prove the charge?
The prosecution has to prove three things beyond reasonable doubt. First, that sexual intercourse took place. Second, that the complainant did not consent. Third, that the accused knew the complainant was not consenting, or was reckless about whether they were consenting.
Recklessness has a wide reach. It covers an accused who knew the person might not be consenting and went ahead anyway, and it covers an accused who never turned their mind to the question at all. The Act applies a mixed test to the accused's state of mind, part subjective and part objective, and it directs the jury to take into account anything the accused said or did to find out whether there was consent. Case law from the ACT and elsewhere on these questions can be searched on JADE.
How hard is a sexual assault charge to defend?
These are serious charges, and they are contested carefully. For an adult complainant, consent is a full defence. There are also factual defences: that the sexual activity did not happen, or that the accused was not the person involved. A belief that the other person was consenting only helps an accused if the belief was reasonable, and under the affirmative model a belief that rests on silence or inaction is not reasonable.
Most of these cases turn on the complainant's account, on forensic and medical evidence, and on records such as messages and location data that show what happened around the alleged act. The reliability of the account and the way it is tested in cross-examination often decide the trial. What a person says to police at the start can shape the whole case, which is why our note on the recorded police interview matters here as much as anywhere.
What defence work looks like in these matters.
A charge under section 54 starts in the ACT Magistrates Court and moves through committal to the Supreme Court, where it is finalised as a plea or a jury trial. Bail is decided under the Bail Act 1992 (ACT), and the court weighs the criteria in section 22, including whether the person will come to court, whether they are likely to endanger anyone or interfere with witnesses, and the person's own interests. Our guide to bail in the ACT sets out how that test works.
From there the work depends on the facts. It may be a defended hearing built on consent or on identity. It may be careful preparation of the Crown brief, the forensic material and the phone records. It may be a plea, where the case turns to mitigation and the offender's background and prospects. Sexual assault trials are run in the Supreme Court and they are demanding, so the preparation has to match. Our guide to working with counsel explains how a solicitor and barrister run a serious trial together.
Frequently asked.
What is sexual intercourse without consent in the ACT?
It is the main sexual assault charge in the ACT, under section 54 of the Crimes Act 1900. A person commits it when they have sexual intercourse with another person without consent and are reckless as to whether the person consents. Sexual intercourse is defined widely and covers penetration by a body part or object and oral sex. The offence is indictable and is finalised in the ACT Supreme Court.
What does affirmative consent mean in the ACT?
Consent has to be communicated, not assumed. Since the Crimes (Consent) Amendment Act 2022 commenced on 12 May 2022, consent is free and voluntary agreement shown by words or conduct at the time. It can be withdrawn. Silence or a lack of resistance is not consent. The ACT was the first Australian jurisdiction to legislate this model.
When does the law say a person did not consent?
Section 67 lists the circumstances. There is no consent where agreement is given because of force, fear of harm, coercion or intimidation, unlawful detention, sleep or unconsciousness, or intoxication that removes the capacity to consent. There is also no consent where there is a mistake about identity or the nature of the act, fraud, or an abuse of trust or authority.
What is the penalty for sexual intercourse without consent in the ACT?
The basic offence carries a maximum of 12 years imprisonment. It rises to 15 years where the offence is committed in company or in the context of family violence, and to 18 years where both apply. The ACT has no standard non-parole period scheme. Sentencing is under the Crimes (Sentencing) Act 2005, and full-time imprisonment is the usual result.
How does the prosecution prove the charge?
It must prove beyond reasonable doubt that sexual intercourse happened, that the complainant did not consent, and that the accused knew this or was reckless about it. Recklessness covers an accused who knew the person might not be consenting, or who did not consider the question. The jury must take into account anything the accused said or did to find out whether there was consent.
What are the defences to a sexual assault charge in the ACT?
For an adult, consent is a full defence. There are factual defences too: that the activity did not happen, or that the accused was not the person involved. A belief in consent only assists if it was reasonable, and under the affirmative model a belief based on silence or inaction is not reasonable. These matters turn on the account and the evidence, so early advice is important.
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 6 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.